Would you believe me if I told you, less is more? Less government would mean more prosperity? You’d be at least 30% richer if we eliminated the bureaucratic red tape strangling our economy today. Tammy tells us about the new documentary, Flynn, we discuss the upcoming elections, shocking RTK prosecutions, and more!
If you catch this week’s Manch Talk, you’ll hear me discuss the latest developments regarding Right-to-Know in New Hampshire. Long story short, the NH AG’s office finally, FINALLY released the new RTK memo, nine years after the last one in 2015.
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Since last week was Sunshine Week, when we typically celebrate or highlight national open government efforts, and as a RTKNH board member, I submitted an op-ed to the Union Leader, which got pulled last minute because the memo was released. I’ll take it! Stay tuned for an in-depth delve into the 158-page document, coming soon!
Here was the op-ed that was NOT published:
Dear Editor,
It is Sunshine Week, our annual reminder that if we don’t want more government corruption, we must demand transparency. What is hidden in government is what is rotten in government, and with distrust in government institutions at an all-time high, the need for open government has never been more critical.
I serve on the board of Right-to-Know NH, a statewide, nonpartisan group of open government advocates. We are from different walks in life, different political parties, religions, and backgrounds, but what unites us is the understanding that without open, transparent, accessible, and accountable government, local politics won’t work.
And, sadly, the trend in New Hampshire suddenly seems to be towards darkness, not light. For example: An insidious bill, HB 1002, would introduce a use fee for RTK requests, thereby introducing a new tax. Imagine the impact this would have on the press’ ability to investigate stories, or the chilling effect due to costs that this will have on open government activists.
Over the past few years, open government advocates have seen some successes. The RTK Ombudsman office finally opened last year, but already suffers from too complex rules, and a backlog. Several NH Supreme Court cases were found in favor of more open government. The Fenniman case was even overturned after almost three decades, significantly broadening our right to view government employees’ personnel files.
And yet, in the past decade, the government has also managed to seal the names of law enforcement officers who should have appeared on the Laurie’s List, they have arrested Right-to-Know activists, they have spent millions of your tax dollars fighting open government requests, and the NH Municipal Association has lobbied against common sense legislation to help broaden the press and Granite Staters’ Right-to-Know.
Last year during Sunshine Week, I implored the AG’s Office to update the 2015 Right-to-Know memorandum. We have now formally requested this update at least 5 times in writing, to no avail. The failure by the AG to act, especially when such failure shrouds in secrecy the incredible gains that have been made in favor of more open government, breeds suspicion.
In the words of Justice Louis Brandeis, “Sunlight is said to be the best of disinfectants.” Let us, therefore, redouble our efforts to shine a light on the inner workings of our local government. It starts with that updated memo. To the NH Attorney General’s Office: Stop undermining public trust.
Sincerely,
Carla Gericke
Carla lives in West Manchester, and serves on the board of Right-to-Know NH. She is an outspoken critic of big government.
HB 1002 is a REALLY bad bill. I don’t understand how it made it out of committee with an OTP–colluders!
The Union Leader op-ed desk and stalwart reporter Mark Hayward agree with me, and Right-to-Know NH, when we say this bill will destroy what’s left of the media in New Hampshire.
Think you don’t know what your government is up to? Imagine if they can drag their feet for 9 hours and then start charging you a service fee to provide Constitutionally required information? As I often say, incentives matter, and these incentives are aligned with a lack of transparency, places an unnecessary burden on citizens, and is not needed.
Here is a document prepared by RTKNH’s president Katherine Kokko. She and I will be distributing them at the statehouse this morning before the session starts.
Heading to the NH state house this morning to stave off one of the worst bills I've seen in a while (HB 1002).
— Carla Gericke, Live Free And Thrive! (@CarlaGericke) February 1, 2024
Activists & independent media like me use RTK requests to figure out what's happening & keep government accountable.
Now Municipalities want to charge a service fee… https://t.co/b55i97OvMu pic.twitter.com/W1DpdljyeK
WATCH THE VIDEO BELOW ABOUT THE MOST INSIDIOUS NH HOUSE BILL BEING HEARD TOMORROW!!!
They’re creating a tax for open record requests. We HAVE TO KILL HB 1002!!!
Here’s the documents created by Right-to-Know NH regarding HB 1002. HUGE SHOUT OUT to Katherine Kokko of Right-to-Know NH for the incredible work she did on this issue, including the Q&A below. Right-to-Know NH is a nonpartisan group working together to keep NH government open, transparent, and ACCOUNTABLE to the people.
HB1002: Frequently Asked Questions
How does HB1002 impact the public’s Right to Know?
HB1002 imposes labor, retrieval, and redaction costs on requestors under RSA Chapter 91-A (NH’s “Right to Know” Law). HB1002 constrains a citizens’ right to know to what can be learned in 10 hours or less in a 30-day period, while charging for additional details within that time period.
A ten hour limit on requests sounds reasonable on paper. Why is this a problem?
The limit hampers the public’s ability to understand and scrutinize complex government operations thoroughly, setting conditions for opacity in government. HB1002 targets, and discourages members of the public from performing the public service of assuring transparency in government, jeopardizing public access and government transparency in New Hampshire. There are other ways to address the problem of “burdensome requests” as presented to the House (See inside).
What else is wrong with HB1002?
By defining the reasonableness of a request as a time limit, HB1002 contravenes the intent of the RTK Law repeatedly affirmed by the courts – to define reasonableness of a request in a manner that provides the greatest information, consistent with statutory and constitutional objectives.
Furthermore, high labor estimates for responding to a request are likely to be issued due to issues like poor record retention practices or the use of overzealous redactions. Those are the responsibility of the public body, not the fault of the requestor.
Why is it important for the public to have unfettered access to public information under NH’s Right to Know law?
NH’s law is entirely and uniquely reliant on private action by individuals for enforcement, giving the public a statutory role in ensuring transparency in NH. There is no oversight body to ensure that NH’s Right-to-Know law is enforced.
Any investigation, even by the RTK Ombudsman, must be instigated by private action. HB1002 erects financial barriers to the public and perversely incentivizes public bodies to increase their estimated labor in responding to RTK requests.
This bill appears to have lot of support from local communities, public bodies and their lobbyists. Who is opposing this bill?
Because this bill would severely harm government accountability and transparency in New Hampshire, it is opposed by a broad Coalition of stakeholders, including the Right-to-Know NH, the ACLU-NH, the New England First Amendment Coalition, the N.H. Press Association, the N.H. Union Leader, the N.H. Bulletin and Americans for Prosperity.
WHY VOTE NO
ON HB1002?
It sounds like “burdensome requests” are a big problem for public bodies/communities? Does RTKNH agree?
The bill’s sponsor Katelyn Kuttab (R-Windham), the NH Municipal Association and Right to Know NH have all confirmed that the large, problematic requests at issue are infrequent. In testimony, examples of “burdensome requests” were anecdotal and not placed in context. Most labor-intensive RTK requests come from commercial entities who are likely willing to pay.
By contrast, the average citizen will likely abandon their RTK request when faced with potential fees for a public interest inquiry, serving no public good. The impact on the average citizen request will be far more profound than the impact on burdensome commercial requests.
If this bill is NOT passed, how will public bodies/communities deal with these “burdensome requests”?
HB1002 addresses a perceived issue that is already addressed by the Right to Know law and existing State and Federal case law. HB1002 disincentivizes public bodies from understanding the existing parameters of the RTK law and the court’s definitions of “reasonableness”… at the public’s expense.
Finally, public bodies always have the option of communicating with the requestor to try and clarify the scope of the request. Many do not do this and choose a legalistic approach instead.
Are there other ways to address these “burdensome requests?”
Yes. Public bodies, including elected officials, should be trained on Right to Know. There is no training requirement. Relying on legal counsel or trying to base decisions on in-house interpretations – instead of training public employees on the front lines – exacerbates issues. When a community spends an inordinate amount of time on Right to Know requests, it is often due to this lack of training and/or reliance on overly legalistic responses.
• What else could be done to assist public bodies?
Multiple stakeholders have asked the AG’s Office to update its 2015 Memorandum on NH’s Right to Know Law so that public bodies can appropriately apply the many precedent-setting decisions made since 2015. The AG’s Office has not done so (claiming that it is in process) while failing to provide a timeline for completion. Meanwhile, it has endorsed HB1002 and specifically the proposed fee structure. This is an unacceptable abdication of its own role in assuring the integrity of the application of the Right-to-Know law.
• The House Judiciary Committee voted this bill OTPA. Why should I disagree with their recommendation?
With only 2 business days between the hearing and Executive Session, the House Judiciary Committee voted HB1002 OTPA 12-8 along evenly split party lines (6D/6R to 4D/4R), without:
(i) Investigating examples, or the origin and root causes of, burdensome requests that are being cited anecdotally to justify this bill
(ii) Considering more targeted proposals to limit excessive requests.
(iii) Investigating the role that RTK training and public guidance (including from the NH Attorney General’s office) could have in resolving this issue.
• How will this bill impact the “average” RTK request?
HB1002 reinforces the use of problematic practices like unnecessary redactions, use of outside contracted support staff and “data dumps” of large volumes of unnecessary documents by allowing billing for such labor. It will also have a “chilling effect” on anything but the most simple request, discouraging the public from researching and understanding issues of interest because they are “too complicated” to warrant paying for the public interest.
Developed and Funded by Committed NH Citizen-Advocates through Right-to-Know NH
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This week we do a deep dive on the proposed amendments to city ordinances to help deal with the homeless problem. We delve into the role of technology as a tool of possible enslavement or enlightenment. Finally, a quick shout out to RTKNH’s Laurie Ortolano for getting attorney’s fees assigned in her Nashua Right-to-Know case!
FROM PBS: “It’s Sunshine Week, the annual initiative spearheaded by the News Leaders Association to educate the public on open government and the dangers of excessive secrecy. This week on The State We’re In, we discuss New Hampshire’s Right-to-Know Law, how it’s applied, and how it can be improved. Guests include Right-to-Know New Hampshire’s Carla Gericke and Concord Monitor reporter Cassidy Jensen.”
Honored to have participated in this PBS interview to highlight how important open and transparent government is to keeping society in balance. Click the link below to learn more about my landmark #freespeech 1st Circuit win! #SunshineWeek #SunshineWeek2022 https://t.co/A92ypkzR65
— Carla Gericke, Live Free And Thrive! (@CarlaGericke) March 18, 2022
This week on Manch Talk, I am joined by Right-to-Know open government activist, Laurie Ortolano from Nashua. Laurie takes us through an in-depth look at her case to make sure Nashua City Hall and the tax assessors office are functioning properly in an open, accessible, accountable and responsive way. (Psst: Guess what? They’re not, and she and other activists have been arrested to prove it!) (Double psst: What do you call it when the Mayor in a town gets special tax treatment?)
Vicky Ayer of Gillsum is fighting back! She is a member of Right-to-Know NH, a nonpartisan group of concerned open government advocates. See links below to get involved.
From today’s Union Leader:
“Gilsum is a town of about 800 people with an annual operating budget of about $600,000, but according to resident Vicky Ayer, a good portion of that budget is shrouded in mystery.
‘We have no clue where some of our money goes,’ Ayer said.
The town spends about $200,000 a year in salaries, and another $80,000 for employee health insurance. Ayer has been trying for years to get the board to include details on the expenditures in the annual town report to no avail. The money spent is taxpayer money, and ought to be public, she said.
‘We don’t know who gets what and where it goes,’ Ayer said.
For example, Ayer said the town refuses to disclose how much it pays to the part-time administrative assistant, Robin Cantara, Cantara’s assistant, or the new assistant who also joined the town this year.
‘We have 826 people in town. We don’t need three assistants,’ Ayer said.
Cantara did not answer the phone listed on the town website on Tuesday. Cantara is also the town’s clerk and tax collector.
Selectmen have claimed they legally do not have to disclose the salary information for town employees under the state’s Right-to-Know Law, according to Ayer’s lawsuit. That’s in contradiction with the Attorney General’s most recent memoranda on the Right-to-Know Law, which clearly lists salary for public employees as a public matter. Ayer claims she was told by selectmen they had a legal opinion advising them not to disclose the information in the town’s annual report.
Ayer filed a Right-to-Know lawsuit against the town seeking to get a copy of that opinion along with other information. The town’s attorney, Gary Kinyon, argues in court documents that selectmen do not have to hand over any opinion received from town counsel. Kinyon did not respond to a request for comment. Select Board Chair Timothy May could not be reached.
Ayer said Cheshire County Superior Court Judge David Ruoff is now giving board members 10 days to come up with the legal opinion they claim allows them not to disclose all of the town’s finances.
‘It will be interesting to see what they produce,’ Ayer said.”
Learn more about Right-to-Know NH. We meet on the third Saturday of every month, and welcome new members to join our ranks. Get involved!
Interested in filing your own RTK request? It’s surprisingly easy! Follow this handy guide!
Due to technical difficulties in the studio, I only have the Facebook Live link for this week’s Manch Talk. Tune in while you still can!