When “No Prejudice” Means No Accountability:

A recent letter from a fellow citizen, Laurie, confirms what many have already begun to suspect: New Hampshire’s Right-to-Know Law (RSA 91-A) is not being defeated in open court—it is being neutralized through delay, indifference, and a judicial standard that renders violations meaningless. At the center of this collapse is Andrew R. Schulman.

Her experience is not theoretical. It is systemic. And when placed alongside Judge Schulman’s own written order, it reveals not just a troubling pattern—but a direct conflict with New Hampshire Supreme Court precedent.

In his final order, Judge Schulman states plainly:

“In general, a plaintiff seeking invalidation under RSA 91-A:8 must show some degree of prejudice… In this case, Clay cannot show that either he or the public was prejudiced.”

That statement is the cornerstone of his ruling. It is also where the legal conflict begins.

The New Hampshire Supreme Court has made clear that RSA 91-A is a statute grounded in the public’s right to know, not merely in private harm. In Hull v. Grafton County, the Court did acknowledge prejudice as a consideration—but not as an absolute barrier to relief. Instead, the statute grants courts discretion to invalidate actions when “the circumstances justify such invalidation.”

That is a critical distinction.

Discretion is not a mandate. It does not require dismissal simply because prejudice is difficult to prove—especially where the absence of prejudice is itself a product of delay.

Yet Judge Schulman’s application converts that flexible standard into a rigid rule: no prejudice, no remedy.

That interpretation collapses the statute into something far narrower than the Supreme Court intended.

The conflict deepens when examining how violations themselves are treated.

Judge Schulman explicitly acknowledges that violations may have occurred:

“There are certainly genuine disputes of fact with respect to… whether the Town Council gave an informal ‘thumbs up’… and… whether it did so in a manner inconsistent with RSA Chapter 91-A.”

But he then renders those violations legally irrelevant:

“Those factual disputes are not material… Even if Clay proved these 91-A violations at trial, this court would not… invalidate the Settlement Contract.”

This is where the ruling directly diverges from the purpose and structure of RSA 91-A.

The statute exists to enforce transparency in government process. The New Hampshire Supreme Court has repeatedly emphasized that its purpose is to ensure public confidence in governmental decision-making. A violation of that process is not a technicality—it is the harm.

Under Supreme Court reasoning, the question is whether the violation undermines public trust or the integrity of governmental action. Under Judge Schulman’s reasoning, the question becomes whether a litigant can prove measurable harm after the fact—often years later.

Those are not the same standard.

They lead to opposite outcomes.

The conflict becomes even more pronounced when considering the role of delay.

Laurie’s case illustrates the real-world effect: months pass without a hearing, witnesses lose memory, and evidence becomes unusable. By the time a court evaluates “prejudice,” it has already been erased.

Judge Schulman’s framework does not account for this reality. Instead, it depends on it.

It creates a closed loop:

A violation occurs, the case is delayed, evidence disappears, prejudice becomes unprovable, and the claim fails.

That outcome is not incidental. It is inevitable under the standard being applied.

New Hampshire Supreme Court precedent does not support such a result. Courts are entrusted with discretion precisely to prevent this kind of injustice—to ensure that procedural violations of open government laws are not insulated by technical barriers or the passage of time.

Judge Schulman’s ruling removes that safeguard.

The conflict does not end with RSA 91-A. It extends into fundamental contract law principles.

Judge Schulman acknowledges that the Town Manager’s authority to enter into the settlement agreement was uncertain:

“Whether the Town Manager had actual authority… is a close call.”

Under long-standing legal principles, a government contract entered into without proper authority—or in violation of statutory requirements—raises serious questions of validity. Courts have historically been cautious in enforcing such agreements, particularly where public policy is implicated.

Yet Judge Schulman resolves this issue not by examining legality, but by invoking ratification:

“The Town has since ratified the Settlement Contract by bringing suit on it… [This] is a textbook example of ratification.”

This reasoning creates a second, equally significant conflict.

The New Hampshire Supreme Court has consistently held that public policy limitations cannot be circumvented by private agreement. Contracts that violate statutory mandates or undermine public rights are subject to invalidation, not preservation through procedural mechanisms.

By allowing a potentially unauthorized and procedurally flawed agreement to be validated through litigation itself, the ruling effectively permits the government to cure illegality after the fact.

That is not ratification as traditionally understood.

That is retroactive legalization.

When combined with the “no prejudice” standard, the implications are profound:

A government body may act without authority, potentially violate open meeting laws, delay any challenge to those actions, and ultimately preserve the result because no prejudice can be proven.

This is not a narrow procedural issue. It is a structural shift.

It transforms RSA 91-A from an enforceable statute into a symbolic one. It allows process violations to stand so long as they are followed by delay. It replaces judicial oversight with judicial deference.

And it leaves citizens—particularly those without legal representation—with no meaningful path to enforcement.

The New Hampshire Supreme Court did not design RSA 91-A to function this way. Its purpose is to promote transparency, accountability, and public trust. Those goals cannot be achieved if violations carry no consequence.

Laurie’s experience demonstrates what happens when the system breaks down. Judge Schulman’s ruling explains why.

If “no prejudice” becomes the controlling standard, then the law does not fail because it is ignored.

It fails because it is applied in a way that guarantees no one can ever win.

That is the conflict.

And until it is resolved, the Right-to-Know Law will exist only on paper—while, in practice, it disappears.