Judge Andrew Schulman’s “No Prejudice” Standard:

Judge Andrew Schulman has done what decades of litigation, legislative debate, and judicial scrutiny never did—he has effectively rewritten New Hampshire’s Right-to-Know Law into something unrecognizable. In ruling that neither a citizen nor the public could demonstrate “prejudice” from clear violations of RSA 91-A, Schulman did not merely get the law wrong; he introduced a standard that, if followed, would dismantle government transparency across the state.

For decades, the New Hampshire Supreme Court has made one principle unmistakably clear: the violation of the public’s right to observe government decision-making is itself the harm. There has never been a requirement that a citizen prove outcome-based prejudice, financial loss, or some speculative alternate result. Yet Schulman imposed exactly that burden—one that the Supreme Court has repeatedly rejected.

In Union Leader Corp. v. Town of Salem, the Court held that email deliberations among a quorum of officials violate RSA 91-A. The Court did not ask whether the plaintiff could prove harm. It did not ask whether the decision would have been different. It recognized the obvious: when public business is conducted in private, the law has already been violated. Under Schulman’s reasoning, however, that case would have been dismissed outright—because how could the public ever prove “prejudice” from conversations they were never allowed to see?

In Goode v. Town of Nelson Selectboard, the Court ruled that deliberations conducted outside a properly noticed public meeting violate the law—even if a formal vote later occurs in public. The integrity of the process, not the final vote, is what matters. Schulman’s standard obliterates that distinction. If no one can prove the outcome would have changed, then secret deliberations become perfectly acceptable. That is not the law. That is the end of the law.

In Keene Sentinel v. City of Keene, the Court rejected attempts to evade the law through serial communications and “walking quorums.” Officials cannot simply divide themselves into smaller groups or communicate in sequence to avoid public scrutiny. Yet under Schulman’s logic, such tactics would be insulated from challenge unless a citizen could somehow reconstruct hidden conversations and prove they caused tangible harm. That is an impossible burden—and one the Supreme Court has never imposed.

The same is true of procedural violations. In Lambert v. Belknap County Convention and Cloutier v. City of Berlin, the Court required strict compliance with the rules governing nonpublic sessions. Public bodies must state specific statutory reasons, limit discussion accordingly, and follow mandated procedures. These requirements are not optional, and violations are not excused because no one can prove “prejudice.” If Schulman’s standard were applied, those cases too would collapse—because procedural violations would carry no consequence unless someone could prove they changed the outcome.

This is the unavoidable truth: Judge Andrew Schulman’s ruling would retroactively invalidate the enforcement of New Hampshire’s Right-to-Know Law. Every one of these cases—cornerstones of transparency jurisprudence—would be vulnerable to dismissal under his reasoning. Email deliberations would be permissible. Decisions made outside public meetings would stand. Walking quorums would flourish. Nonpublic session rules would become meaningless formalities. All so long as the public cannot prove what happened behind closed doors.

And that is precisely the problem. The entire purpose of RSA 91-A is to prevent secret decision-making, not to require citizens to prove its consequences after the fact. Schulman’s standard flips the law on its head. It rewards concealment. The more effectively a public body hides its actions, the harder it becomes to prove “prejudice,” and the more likely the violation goes unpunished. This is not just bad reasoning—it is a blueprint for evasion.

Applied to Newmarket, the implications are stark. Approval of agreements through email exchanges, absent public deliberation, falls squarely within the conduct condemned in Union Leader, Goode, and Keene Sentinel. Under controlling law, these are violations—full stop. No additional showing is required. Yet Schulman’s ruling shields that conduct, not because it complies with the law, but because it is too opaque for the public to dissect after the fact.

What Judge Andrew Schulman has effectively declared is this: government officials may violate the Right-to-Know Law with impunity, so long as they do so in a way that prevents the public from proving harm. That is not a judicial interpretation. It is a judicial erasure of the statute.

If this standard stands, RSA 91-A becomes an empty promise. Public meetings become optional. Transparency becomes illusory. And the public’s right to know becomes the public’s burden to prove what it was never allowed to see.

That is not how the New Hampshire Supreme Court has interpreted the law. And it is not how a functioning democracy survives.