Judge Andrew Schulman’s Message to New Hampshire Government: RSA 91-A Violations Carry Little Risk

Judge Andrew Schulman’s Message to New Hampshire Government: RSA 91-A Violations Carry Little Risk

By Jeffrey Thomas Clay

Critics of Judge Andrew Schulman’s Newmarket decision believe the ruling sends a dangerous message to every municipal attorney, town official, school board member, and public body in New Hampshire:

Government officials may conduct discussions, deliberations, and approvals of governmental action off the books, keep no public record of those actions, invoke attorney-client privilege afterward, and still face virtually no consequence because the public supposedly cannot prove prejudice from secrecy it was never allowed to see.

That is the practical effect critics say flows from the Newmarket ruling.

The court acknowledged genuine factual disputes regarding whether Town Council members informally approved a settlement agreement outside a properly noticed public meeting. The order further acknowledged:

• no public notice occurred,
• no public vote took place,
• no minutes were kept,
• and no public record documented approval of the agreement.

Yet Judge Schulman still refused to invalidate the agreement or impose meaningful sanctions.

According to critics, the logic underlying the ruling is deeply troubling:
because the public cannot specifically prove what happened during concealed governmental deliberations, courts may simply presume no meaningful prejudice occurred.

But how can citizens prove prejudice from meetings, discussions, or approvals they were intentionally prevented from witnessing?

That reasoning, critics argue, turns RSA 91-A upside down.

The Right-to-Know Law exists precisely because secrecy itself harms public trust. Citizens are not supposed to prove what hidden governmental discussions contained before courts enforce transparency requirements. The law requires openness so citizens never have to speculate in the first place.

Critics argue Judge Schulman’s reasoning effectively rewards concealment.

If officials conduct governmental business through undocumented email exchanges and avoid creating public records, the public later lacks the evidence necessary to demonstrate concrete prejudice. Under the logic critics see in the ruling, the more effectively officials conceal governmental action, the less likely courts are to impose consequences.

That creates a blueprint for avoidance rather than accountability.

Even more alarming to critics was the court’s treatment of attorney-client privilege and “consultation with legal counsel.”

The New Hampshire Supreme Court has historically treated consultation with counsel as narrow and limited. Legal consultation was never intended to become a loophole allowing elected officials to deliberate, negotiate, or approve governmental action outside public view merely because attorneys participate in communications.

Yet critics argue the Newmarket decision dangerously expands that protection.

Under the practical effect of the ruling, municipal attorneys may now feel emboldened to facilitate governmental discussions through attorney-directed email exchanges while shielding those communications from disclosure under claims of privilege.

Critics contend the ruling also opens another dangerous door:
municipalities using taxpayer dollars to purchase permanent waivers of constitutional and statutory transparency rights.

The Newmarket settlement agreement did not merely resolve a single dispute. The agreement purported to permanently prohibit a citizen from making future RSA 91-A requests to the Town ever again.

Critics argue that concept directly conflicts with the spirit — if not the letter — of both RSA 91-A and Part I, Article 8 of the New Hampshire Constitution.

The implications are staggering.

If municipalities may:

• pay citizens with taxpayer funds to abandon future Right-to-Know rights,
• settle alleged RSA 91-A violations without public approval,
• conduct deliberations outside public meetings,
• shield communications through attorney involvement,
• and later avoid judicial consequence because prejudice supposedly cannot be proven,

then critics argue the enforcement structure of RSA 91-A has been fundamentally weakened.

The concern extends far beyond Jeffrey Clay or the Town of Newmarket.

Critics fear the decision signals to public bodies statewide that procedural transparency requirements are increasingly optional so long as officials later characterize discussions as legal consultation and avoid creating formal records.

The danger is not merely theoretical.

Open government laws depend almost entirely upon judicial enforcement. Courts are the final safeguard protecting citizens from governmental secrecy. When courts decline to act even after acknowledging possible off-the-books deliberations and missing public procedures, critics argue public confidence inevitably suffers.

Judge Schulman may have viewed the Newmarket case as an exhausting feud needing finality. But critics insist courts are not empowered to subordinate constitutional transparency principles in pursuit of peace, convenience, or institutional protection.

Because once government officials learn that secrecy carries little practical risk, secrecy inevitably grows.

And when secrecy grows, public trust dies with it.