NH Superior Court Judge Andrew R. Schulman Wrong for NH RTK Law!

NH Superior Court Judge Schulman recently ruled NH Public agencies (Cities, Towns, School Districts, etc.) act legally when they contract away their legal obligation under Right-to-Know Law (RT), by paying taxpayer funds to have records requesters withdraw their RTK requests and agree not to make future requests.

To be clear: Judge Schulman has ruled any citizen has the legal right to make RTK requests to any public body or agency to inspect public records only to negotiate that request in exchange for taxpayer funds. He claims such agreements do not violate public policy.

In reaching this decision, Judge Schulman claimed these settlement agreements do not violate public policy. Schulman's decision stands in stark contrast to the NH Supreme Court's position on public policy regarding settlement agreements.

The NH Supreme Court has stated an agreement that is against public policy “if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, . . . is at war with the interests of society and is in conflict with the morals of the time.”

Responding to records requests is the legal duty of all public agencies and bodies. Failing to comply with this duty violates the NH Constitution and RSA 91. A. According to the preamble of RTK Law, openness in public government is essential to a democratic society. Using taxpayer funds to avoid complying with the law appears to this author to be against good morals and is at war with the interests of society.

Judge Schulman not only redefined (destroyed) RTK Laws regarding access to public records, he also redefined (destroyed) public meeting requirements under 91-A.

Judge Schulman ruled the public is not prejudiced when a public body holds an unannounced (secret) meeting where they discuss, deliberate, and vote to expend taxpayer funds through emails with a Town Manager/Administrator, and where no record is kept. Schulman also stated such violations do not constitute Bad Faith and Bad Faith could not be proven.

In law, bad faith is a dishonest or fraudulent act in a transaction. So, under Schulman’s ruling, what exactly would constitute bad faith? Perhaps lying to the court? Falsifying public documents? Concealing public documents? No, none of these bad acts would constitute bad faith for Schulman. All of these things were presented to him and he just disregarded them.

Judge Schulman’s decisions are not only reprehensible, they set Right-to-Know Laws back into the Dark Ages. Public bodies now have the freedom to conduct public business outside of 91-A in any venue they wish and without any public record of their actions.

Schulman's message to NH Public Bodies: To hell with the public’s right to know what their public officials are up to. NH Courts will protect public bodies from accountability no matter how egregious and unlawful their actions.

Judge Schulman also makes distinctions (discriminates) between residents and non-residents under RTK Laws. Judge Schulman stated he would not “smite” a public body for violating RTK where a non-resident is involved.

Judge Schulman does not like pro se (non-attorneys) representing themselves in his Court. Nor does he like non-residents bringing RTK cases.

P.S. Schulman found I acted in bad faith and awarded Newmarket Attorney fees against me, claiming I acted in bad faith because I requested to inspect the records (emails) between Newmarket Councilors and the Town Manager.

Jeffrey Thomas Clay