When a Court Undermines the Constitution It Is Sworn to Uphold

When a Court Undermines the Constitution It Is Sworn to Uphold

New Hampshire’s Right-to-Know Law was enacted to give real effect to Part I, Article 8 of the New Hampshire Constitution: the guarantee that government remains accountable to the people. That guarantee is not aspirational. It is structural. It exists precisely because secrecy, even when convenient, corrodes democratic governance.
Yet in Clay v. Town of Newmarket, the Superior Court adopted a framework that weakens that constitutional protection. This is not a question of personal motive or judicial ethics. It is a question of constitutional compatibility. The reasoning employed by the court conflicts with the Constitution it is bound to apply.

Transparency Is a Constitutional Duty, Not a Technical Preference

Article 8 was adopted to prevent government from operating in the shadows. Its purpose is defeated when violations of open-government laws are treated as mere technical defects—harmless unless a plaintiff can prove concrete, individualized injury. The harm Article 8 addresses is institutional: secrecy itself.
In its Court Order and at the March 28, 2024, hearing (TR), the court repeatedly emphasized restraint, cautioning against “upending apple carts” and disturbing settled municipal decisions. That instinct may be understandable as a matter of administrative convenience, but it is incompatible with constitutional design. Article 8 exists precisely to upend governmental secrecy when it occurs.

The Constitution Does Not Require Citizens to Prove Prejudice

The Right-to-Know Law does not condition enforcement on proof that secrecy changed outcomes. Nor does the Constitution. The requirement that a citizen demonstrate individualized prejudice before remedies may issue appears nowhere in the statutory text and nowhere in Article 8.
By importing such a requirement, the court effectively rewrote the law. Courts are empowered to interpret statutes, not to narrow them based on perceived policy concerns. When judicial interpretation adds conditions the Legislature did not enact, constitutional protections are diluted.

Public Rights Cannot Be Bargained Away

Most troubling is the court’s enforcement of a settlement provision permanently barring future Right-to-Know requests to a municipality. That holding transforms a constitutional public right into a private commodity—something that can be bought, waived, and extinguished.
Article 8 does not belong to individual litigants alone. It belongs to the public. Allowing municipalities to purchase silence through settlement agreements undermines the very accountability the Constitution guarantees.

Deterrence Is Not Optional

The Right-to-Know Law relies on remedies—invalidations, injunctions, and attorney-fee awards—because secrecy is otherwise cost-free. When courts treat those remedies as discretionary favors rather than integral enforcement tools, violations become rational and repeatable.
A transparency law without teeth is not a safeguard. It is a suggestion.

This Is a Constitutional Issue, Not a Personal One

Criticizing a judicial decision is not an attack on judicial independence. It is an essential part of constitutional self-government. Courts are not infallible, and when a decision conflicts with constitutional guarantees, it must be called out—respectfully, clearly, and publicly.
The issue in Clay v. Town of Newmarket is not whether the court acted in good faith. The issue is whether its reasoning is consistent with Part I, Article 8 of the New Hampshire Constitution. It is not.

The Legislature Must Respond

If this framework is allowed to stand, enforcement of the Right-to-Know Law will erode. Municipalities will learn that violations carry little risk. Fee awards will disappear. Transparency will yield to convenience.
The New Hampshire Legislature should act to reaffirm that transparency violations cause public harm per se, that constitutional access rights cannot be waived by contract, and that remedies are central—not incidental—to enforcement.
Open government is not a courtesy. It is a constitutional command. When courts lose sight of that principle, it falls to the public and the Legislature to restore it.

— Jeffrey T. Clay