When “Well-Reasoned” Reasoning Threatens the Right-to-Know Itself

In a recent decision, Andrew R. Schulman enforced a settlement agreement under which the Town of Newmarket paid money to a citizen in exchange for that citizen’s permanent agreement never to file another Right-to-Know request with the Town.

The New Hampshire Supreme Court later affirmed the result and described Judge Schulman’s order as “well reasoned.”

That endorsement should concern every New Hampshire resident who values open government.

To be clear, Judge Schulman did not expressly hold that municipalities may abolish the Right-to-Know Law. But his reasoning, if adopted or replicated across towns, points unmistakably in that direction.

A Contract That Silences a Statutory Right

The agreement enforced by the court permanently barred a single individual from submitting any future requests under RSA 91-A. The Town paid money for that silence. The court upheld the agreement as enforceable and concluded that, as applied, it did not violate public policy.

In reaching that conclusion, the court relied on several limiting facts: that the requester was a non-resident, that records were otherwise available online, that the media or other agencies could request records, and that the waiver applied only to new requests directed to the Town itself.

But those facts do not answer the larger constitutional question. They avoid it.

The Missing Limiting Principle

The court acknowledged—correctly—that prospective waivers of statutory rights can violate public policy. It even offered stark hypotheticals involving police misconduct, negligence, and other harms to illustrate when public policy must override private contract.

Then came the critical line: “But that point has not yet been reached in this case.”

That sentence is doing extraordinary work.

Nowhere does the order articulate a limiting principle that would prevent the same arrangement from being repeated with another requester, or another, or another—until the Right-to-Know Law exists only on paper.

If a town may lawfully pay one person to permanently surrender the right to request public records because “others” remain free to do so, then the same reasoning permits paying ten people, or every frequent requester. At that point, the statutory right remains nominally intact while being functionally extinguished.

Courts routinely reject interpretations that allow the government to do indirectly what it lacks the power to do directly. Yet that principle is absent here.

From Individual Enforcement to Systemic Erosion

RSA 91-A is not a private entitlement designed solely for the benefit of a single litigant. It is a public-interest statute rooted in Part I, Article 8 of the New Hampshire Constitution. Its purpose is structural: to ensure transparency, accountability, and public oversight of government.

A doctrine that allows municipalities to selectively purchase silence undermines that structure. Transparency cannot depend on whether a town finds it cheaper to pay a requester off than to comply with the law.

That danger does not disappear simply because the court labels its analysis “as applied.”

Why the Supreme Court’s Endorsement Matters

The New Hampshire Supreme Court’s statement that Judge Schulman’s order was “well reasoned” elevates this problem from a trial-level anomaly to a precedential warning sign.

When the state’s highest court endorses reasoning that enforces permanent waivers of a constitutional transparency statute—without identifying legislative authority and without articulating a limiting principle—it invites replication.

That is how rights erode: not by frontal assault, but by “reasonable” exceptions that quietly swallow the rule.

The Question That Remains Unanswered

No court has identified any statute granting a town manager, town council, or municipality the authority to contract away the public’s Right-to-Know. The Legislature has not authorized it. The Constitution does not permit it.

Yet the result stands.

The question is no longer whether this agreement binds one person. It is whether New Hampshire is prepared to accept a legal framework under which the Right-to-Know Law survives only until a town decides it would rather write a check.

If that framework is truly “well reasoned,” then the future of transparent government in New Hampshire deserves urgent re-examination.