CONCORD — A new ombudsman will soon offer citizens a cheaper and quicker way to resolve Right-to-Know Law complaints against government agencies.
In response to concerns from some municipal lawyers, however, the new program will not give the individual “two bites of the apple” or a complete court appeal of an ombudsman’s decision.
Instead, on appeal, the court will assume the ombudsman’s ruling is “lawful and reasonable” if it’s absent errors of law, unless the judge is persuaded by evidence that it should be set aside.
After years of pleas from advocates for government transparency, the Legislature agreed to this three-year experiment, setting up an Office of Right-to-Know Ombudsman led by a lawyer to be nominated by the governor and confirmed by the Executive Council.
Using the ombudsman will be voluntary; residents can still go directly to court to try to get access to public records.
The new ombudsman office will go out of business July 1, 2025 unless the Legislature votes in the meantime to extend it.
“We were looking for a faster, cheaper and more conciliatory way to resolve disputes between citizens and public bodies,” said Rep. Charlotte DiLorenzo, D-Newmarket, the bill’s (HB 481) prime author.
Backers think this can reduce disputes
Supporters hope decisions of the ombudsman will serve as a road map for citizens and municipal officials to follow that will cut down on the number of court disputes.
“The hope is that the ombudsman rulings will create a significant pattern of law,” Rep. Kevin Craig, R-Lancaster, told a state Senate committee that heard the bill.
The filing fee to bring a case before the ombudsman is $25, though it may be waived if the applicant has limited income.
The cost to bring a complaint in court is $280.
State officials said 67 Right-to-Know Law complaints have gone through the court system over the past four years.
Laurie Ortolano with New Hampshire Right to Know said it cost her up to $150,000 to sue the city of Nashua to get documents regarding an assessing scandal.
“Those who choose to fight back face huge legal bills and a cost to our reputations,” Ortolano testified. “This will pull away that power play.”
When it came to access to public information, New Hampshire ranked 49th in the most recent ranking (in 2015) by the Center for Public Integrity.
“Transparency is a cornerstone in government, and on that score, New Hampshire is failing,” said Frank Knaack, policy director with the American Civil Liberties Union of New Hampshire, which supported the bill.
Officials with the New Hampshire Municipal Association also testified in favor of the ombudsman measure.
The House-passed version of the bill included an option to appeal the ombudsman’s decision to superior court for a second comprehensive review of the case.
“The ombudsman does not follow judicial procedure. This is created so you can get the full judicial process,” said Rep. Kurt Wuelper, R-Strafford. “The ombudsman does the groundwork, and if the losing side has a problem, they can go to superior court.”
But Keene City Attorney Tom Mullins told the Senate panel that two full-blown hearings would be costly and time-consuming.
“I would much rather have to go to a place once,” Mullins said. “Municipal resources are stretched, and to have to engage in expending more to fight a complaint, I think, to me, seems to be inappropriate.”
Sen. Jay Kahn, D-Keene, amended the final bill to create the streamlined appeal that he said was similar to that of other agencies such as the Housing Appeals Board.
“This is creating a lot more case filing and litigation on behalf of the municipalities that have to defend their actions,” Kahn said in supporting Mullins.
In 2007, Maine created an ombudsman within its attorney general’s office.
The New Hampshire law places its new ombudsman within the Secretary of State’s Office because the Attorney General’s Office here typically defends all state agencies that receive Right-to-Know Law complaints.
The Maine law also permits any decision to be appealed to superior court in that state.
Since 1975, Connecticut has had a Public Access Commission under its Freedom of Information Act that hears complaints about access to public records in that state.
The COVID-19 pandemic led to delays of more than a year for the Connecticut commission to issue its decisions.
Like New Hampshire’s new law, Connecticut affords a limited appeal of its commission decisions.