Government transparency advocates prevail in slowing bill with public records fee

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 02-11-2024 11:02 AM

Under heavy lobbying from government transparency advocates, the House reversed itself Thursday and agreed to rethink a bill it passed last week that would allow communities to charge up to $25 an hour to fulfill requests for public records when doing so takes more than 10 hours.

In arguing to send House Bill 1002 back to the House Judiciary Committee for more work, several House members said they didn’t understand the legislation’s unintended consequences when they voted for it last week.

The bill’s opponents argued an hourly fee of up to $25 would restrict access to public records that enable the public to hold government accountable, a right enshrined in the state constitution, which says access to government documents should not be “unreasonably restricted.”

In recent years, residents have used right-to-know requests to uncover a shady land deal by Webster town officials and improper tax assessments in Nashua. The city has been found in violation of the law by denying records that should have been public and was ordered to get remedial training on the law, according to court records.

Rep. Kelley Potenza, a Rochester Republican, was among those who urged the House to reconsider its passage of the bill.

“Many representatives that I heard from did not understand the full scope of the impact and potential consequences their vote on (the bill) would have on their communities,” she said, “but moreover, all of New Hampshire (and) whether it aligned with the values and priorities of the New Hampshire citizens who hold the contract, the contract being our constitution.”

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The reconsideration vote passed, 195-183. In arguing against reconsideration, Rep. Julie Gilman, an Exeter Democrat, appeared to state inaccurate information about the bill and the right-to-know law, RSA 91-A. She said the bill puts into law “a policy that a public body may, not shall, but already can adopt.”

The state Supreme Court has ruled that communities can charge for the actual cost of documents provided in response to a records request. There is no law that allows public bodies to charge up to $25 an hour to “duplicate, redact and otherwise make the record available.”

An effort to table the bill by Rep. J.R. Hoell, a Dunbarton Republican, failed, 126-254.

“The right of the citizens to understand and know what is going on with their government is so sacrosanct that it should never be eliminated,” Hoell said in a message to the Bulletin following the vote. “Requiring citizens to potentially pay hundreds of dollars to understand what is going on with their government is abysmal and a real threat to our free and open society.”

On a voice vote, the House agreed instead to return the bill to the House Judiciary Committee, where members can expect the New Hampshire Municipal Association to continue lobbying for it and a diverse group of opponents to ask that it be defeated.

Opponents include the New Hampshire Press Association, ACLU of New Hampshire, Right to Know NH and two groups that advocate for conservative, limited government, the Josiah Bartlett Center for Public Policy and Americans for Prosperity New Hampshire.

In written testimony to House members this week Greg Moore, regional director for Americans for Prosperity New Hampshire, addressed the New Hampshire Municipal Association’s complaint that overly broad records requests are costly and burdensome for its members.

“Onerous public records requests certainly can be a drain of taxpayer resources,” Moore wrote, “but the alternative of having a more corrupt government is far more expensive and corrosive to public trust.”

The New Hampshire Municipal Association told the committee in August that a survey of 70 of its members revealed that the average public records request takes less than five hours, which would exempt them from the hourly fee proposed in the bill.

A vast majority, 88%, of respondents said they receive fewer than 100 right-to-know requests a year. Of the 58 communities that estimated the cost of fulfilling records requests, few said the expense was less than 1% of their annual operating budget.

The type of large or voluminous request that would fall under the bill are “infrequent,” the association said in its written testimony, with the majority reporting one or two a year.

In a few cases, communities have said they’ve received massive requests from commercial outfits, including one case where a solar panel company requested copies of building permits with hopes of marketing their panels to property owners.

Natch Greyes, government affairs counsel for the association, also noted that the bill would require municipalities to provide the person requesting the records a cost estimate before fulfilling the request and allow them to suggest how a person could narrow their request.

Some of the bill’s opponents challenged the association’s argument that the infrequency of large, burdensome requests indicates the bill would result in a records fee in most cases. Instead, that indicates it’s not necessary, they said.

At the minimum, opponents have requested the bill be amended to include a provision that would allow someone to request a fee waiver, including in cases where the information in the documents is in the public interest.

Following the vote, Gilles Bissonnette, ACLU New Hampshire’s legal director, called the vote a positive step.

“Forcing people to pay unreasonable fees for document requests decreases government accountability and transparency. Under our current transparency law, we have made clear that an open government is an accountable government – and HB 1002, as drafted, would have dismantled that value and provided avenues for abuse and obstruction by government agencies,” he said in an email. “Today’s vote by the N.H. House to send HB 1002 back to committee is a positive step, and we look forward to working with the committee on a solution that prioritizes transparency.”