Ellen Grimm

When it comes to government transparency and access to public records, there has been much progress in New Hampshire, according to legal experts who participated in the recent discussion, Keeping the Light On: Holding Government Accountable.  Among the challenges: Keeping the public up to date on evolving Right-to-Know matters. 

The annual event, presented by the Nackey S. Loeb School of Communications and the New England First Amendment Coalition in partnership with the Warren B. Rudman Center for Justice, Leadership & Public Service, celebrated Sunshine Week, a national initiative supported by the American Society of News Editors to educate the public about the importance of open government. 

NHPR reporter and editor Casey McDermott moderated the event. For the full conversation visit here. (Panelists’ remarks included in this piece have been edited slightly for clarity.)

“I’ve seen great progress in New Hampshire in terms of government becoming more responsive and accountable thanks to the Supreme Court, superior court decisions, which have recognized that we the people are the government. We have the right to know what the government is up to on a day-to-day basis,” said attorney Gregory V. Sullivan, a First Amendment law specialist with Malloy & Sullivan. 

Despite these developments, panelists agreed, hurdles remain. “We need to be vigilant,” said Gilles Bissonnette, legal director of the ACLU – NH. "We do constantly need to be educating folks about what their rights are under the statute. That is a hurdle. The law is ever changing.  If people don’t know what their rights are, that is a hurdle in and of itself to government transparency. Because these rules and principles don’t automatically happen.  People have to enforce and invoke them. 

Q: What hurdles to government transparency are you most concerned about? 

The Honorable N. William Delker, Justice, N.H. Superior Court: Where I see issues in courts most often is lawyers often file motion to seal because of confidential information in pleadings that might relate to issues relating to mental health issues their clients are facing, sometimes physical health issues, and other matters that they feel shouldn’t be out in the public domain.  They are sometimes filing motions that are overly broad. I don’t think it's because they’re trying to be intentionally obscuring the records. I think it’s more the path of least resistance. 

Emily Gray Rice, City Solicitor, City of Manchester, NH: Our courts are very, very accessible to ordinary citizens here in New Hampshire, not perfectly, but on the whole very, very accessible.  The internet has vastly improved public access to all kinds of things; it has been a blessing and a little bit of a curse  because information travels ever more quickly and we collect ever more information.  There’s a great burden on government now to collect that information and produce that information, and given what’s happening with staffing levels in the public sector, that can be very, very challenging.  I think the end result isn’t that information is not produced, but that it takes a very, very long time.

Gilles Bissonnette, Legal Director, ACLU-NH: Many cities and town, particularly the bigger cities and towns, know what the rules are. They have lawyers on staff; they’re responsive to individuals and timely process requests, and when exemptions exist and are appropriate, they’ll be raised.  But there are a lot of cities and towns and boards that are smaller that have less resources, that may not have lawyers on staff and that’s where I think education is critical. 

Part of what we’re trying to do is make sure that municipalities and volunteer boards that may not have legal staff know their obligations under the statute. And I think consistent with that, one of the things that I’m always trying to advance in my advocacy is that the public records law that we have is called the Right-to-Know law, that there is a presumption embedded within that statute in favor of transparency and not secrecy.   

A potential hurdle is the ability of third parties to go into court and try to get orders that prevent municipalities from disclosing information to the public.  It’s a growing development over the past several years. It’s something I’m starting to have concerns about. I worry it could slow down public access.

Gregory V. Sullivan, of Malloy & Sullivan, First Amendment law specialist: The hurdles, historically, have been a lack of understanding on the part of government officials -- people in city and town halls, state government, thinking that their information is their information and not, as it should be, our information.  So, I’m encouraged by the progress that New Hampshire has made in overcoming these hurdles.