No One Voted for Secret Government

By Jeffrey Thomas Clay, Right-to-Know Activist

New Hampshire prides itself on open government. It is not a courtesy. It is not a suggestion. It is a constitutional command.

Yet in Newmarket, town officials have acted as if they possess authority the Legislature never granted—authority to enter into and enforce contracts that violate the New Hampshire Constitution and the Right-to-Know Law. They do not.

Under New Hampshire law, municipalities have no inherent power. Towns exist only by permission of the Legislature, and they may exercise only those powers the Legislature has expressly granted. Any doubt about a municipal power is resolved against the municipality. That principle alone should end the debate.

But the issue goes deeper.

Part I, Article 8 of the New Hampshire Constitution guarantees that government “shall be open, accessible, accountable and responsive” and that the public’s right of access to governmental proceedings and records “shall not be unreasonably restricted.” This is not aspirational language. It is binding law. Every town council, school board, and public body in the state is constrained by it.

The Legislature implemented Article 8 through RSA 91-A, the Right-to-Know Law. The statute begins with a clear declaration: “Openness in the conduct of public business is essential to a democratic society.” That is not rhetoric. It is a legal condition on the exercise of public power.

When a town council negotiates, approves, or enforces a contract through secret deliberations, withheld records, or procedural gamesmanship that denies the public meaningful access, it has stepped outside its lawful authority. The Legislature never granted towns the power to do public business in the dark.

Some argue that because a town charter or statute gives a council general authority to contract, that authority is unlimited. That argument is legally wrong. General authority does not override specific constitutional and statutory prohibitions. No statute authorizes a municipality to contract in violation of Article 8 or RSA 91-A. None.

A contract formed through unconstitutional or unlawful conduct is not merely “imperfect.” It is void. Ratification cannot fix what the law never permitted in the first place. You cannot retroactively legalize secrecy by filing a lawsuit, taking a later vote, or asking a court to look the other way.

This matters because transparency is not a technicality—it is the mechanism by which citizens retain control over their government. When public officials treat openness as optional, they invert the relationship between the governed and those who govern.

The people of New Hampshire did not consent to secret contracts, hidden deliberations, or after-the-fact justifications. They voted for a Constitution that says government must answer to them at all times.

If municipal officials believe they need the power to violate the Right-to-Know Law to do their jobs, they should ask the Legislature—and the voters—to amend the Constitution.

Until then, the rule is simple:

If it violates Article 8 and RSA 91-A, the town had no authority to do it.
And no amount of litigation can change that.