NH Attorney General John Formella’s Silence Signals the Death of the State’s Right-to-Know Laws​

By Jeffrey T. Clay

For Immediate Public Release

Cowardice at the Top: NH Attorney General John Formella’s Silence Signals the Death of the State’s Right-to-Know Laws

New Hampshire’s Right-to-Know laws—once the backbone of government accountability—are now being hollowed out in broad daylight. And the one person with the constitutional authority and moral obligation to speak up, Attorney General John Formella, has shrunk from his duty with a level of cowardice that should alarm every resident of this state.

His refusal to address Judge Andrew Schulman’s astonishing conclusion—that access to public records may effectively be for sale, and that the government’s concealment of records no longer constitutes criminal conduct—represents a catastrophic failure of leadership. Worse yet, the New Hampshire Supreme Court has now endorsed these distortions, further eroding public trust.

When confronted with these constitutional horrors, Attorney General Formella did not defend the people.
He did not defend the Constitution.
He did not even defend his own office’s previously published memorandum of law affirming the fundamental nature of public access.

He chose silence.
Silence in the face of judicial overreach.
Silence in the face of constitutional violations.
Silence in the face of a judicial declaration that the right to know can be overridden by price tags and political convenience.

This is not merely legal neglect.
This is constitutional abandonment.

THE CONSTITUTION IS NOT OPTIONAL

The Attorney General swears an oath to uphold the New Hampshire Constitution. Several of its most important protections are directly implicated in the current crisis—and John Formella has refused to speak out about any of them.

Part I, Article 8 – Government Accountability
“All power residing originally in, and being derived from, the people, all the magistrates and officers of government are substitutes and agents, and at all times accountable to them.”
Judge Schulman’s rulings—and the Supreme Court’s endorsement—render this principle meaningless by transforming public access into a privilege conditioned on financial sacrifice. The Attorney General’s silence ratifies this erosion.

Part I, Article 22 – Free Speech and Public Information
While framed around free speech, NH courts have long recognized that government transparency is a prerequisite to meaningful public discourse.
Formella’s refusal to condemn the suppression of information directly undermines this constitutional mandate.

Part I, Article 37 – Separation of Powers
The judiciary cannot create new financial barriers or rewrite statutes from the bench. By inventing a pay-to-access standard for public records, Judge Schulman has legislated from the bench. John Formella’s silence effectively approves this judicial power grab.

Part I, Article 39 – Right of Access to Government Proceedings and Records
This Article codifies the people’s right to inspect public records. It does not state:
- “Access may be conditioned on financial hardship.”
- “Government may impose retaliatory costs.”
- “Judges may rewrite RSA 91-A.”
- “Public officials may conceal records without criminal consequence.”
Yet that is now the reality.

And the Attorney General of New Hampshire has refused to utter a single word in defense of the Constitution he is sworn to protect.

JUDGES REWRITE CRIMINAL LAW AND THE AG SAYS NOTHING

Judge Schulman did not merely mishandle a civil records case; he went further—suggesting that concealing public records is no longer criminal, even though the Legislature codified criminal penalties in:
- RSA 91-A:8, I (bad-faith and knowing violations)
- RSA 641:1 (false statements)
- RSA 641:7 (falsifying government records)

Instead of condemning judicial nullification of criminal law, Formella remained mute.
Instead of defending the Legislature’s authority, he remained passive.
Instead of reminding the judiciary that the criminal code is not theirs to rewrite, he hid behind silence and political convenience.

The Supreme Court then validated Schulman’s reasoning—not with legal analysis, but with avoidance, omission, and indifference. Their endorsement effectively signals that government officials may hide public records without fear of penalty, so long as a judge provides post hoc justification.

This is not oversight.
This is abdication.

THE AG’S OWN MEMORANDUM PROVES HE KNEW BETTER

What makes Formella’s cowardice even more indefensible is that his own office has previously published legal memoranda highlighting:
- The constitutional centrality of transparency
- The remedial purpose of RSA 91-A
- The presumption of openness
- The mandatory requirement that courts construe access rights broadly
- The public’s right to records without undue burden

Yet when those principles were butchered by Judge Schulman and ignored by the Supreme Court, Formella abandoned his own written positions without explanation.

If the Attorney General won’t defend his own legal reasoning, why should anyone believe he will defend the public?

BINDING SUPREME COURT PRECEDENT CAST ASIDE — AND FORMELLA SAYS NOTHING

Decades of controlling precedent required the Attorney General to object publicly to the judiciary’s distortion of the law:
- Stone v. City of Claremont (1999) – presumption of openness
- Murray v. City of Berlin (2006) – government cannot punish requesters
- Piper v. Meredith (1995) – courts must narrowly construe exceptions
- Powers v. SAU 52 (2021) – transparency is a core democratic right
- Goode v. NH Legislature (2018) – public access cannot be conditioned away

These cases were binding.
Schulman ignored them.
The Supreme Court refused to apply them.
And the Attorney General remained silent.

That is not neutrality.
It is complicity.

WHAT KIND OF ATTORNEY GENERAL SAYS NOTHING WHILE THE JUDICIARY DECLARES RTK “FOR SALE”?

New Hampshire deserves an Attorney General who:
- Upholds the Constitution
- Defends the public’s right to know
- Challenges judicial overreach
- Protects the criminal code
- Speaks truth to power

Instead, they received an Attorney General who remains comfortably silent as the judiciary announces that constitutional rights may be priced, delayed, or extinguished at the government’s leisure.

John Formella had the authority to speak.
He had the legal foundation to speak.
He had the constitutional duty to speak.

He chose cowardice.

And because of that choice, New Hampshire’s right-to-know laws are weaker, government concealment is safer, and transparency is dying in the very state that once prided itself on accountability.

The people deserve better than an Attorney General hiding in the shadows.
The Constitution deserves better, too.