On Tuesday, the Senate Judiciary Committee held a hearing on HB 307, which would require that the government bear the cost of resolving a gray area of the Right-to-Know Law if the requestor wins. NHMA opposed the bill, as did several municipal attorneys. 

One of the points of discussion was the historical language of the attorney’s fees section of the Right-to-Know Law. A review of that history, in fact, demonstrates that the current law is a carefully balanced policy that reflects multiple perspectives and stakeholders. 

That section, RSA 91-A:8, came into being in 1973 with the passage of Chapter Law 113. That law read: 

Any body or agency which, in violation of the provisions of this chapter, refuses to provide a public document or refuses access to a public proceeding, to a person who reasonably requests the same, shall be liable for reasonable attorney’s fees and costs incurred in making the information available or the proceeding open to the public provided the court renders final judgement in favor of such request. 

Five years later, in 1977, the legislature passed HB 845, Chapter Law 540, which substantially rewrote the Right-to-Know Law, including section A:8. According to the House Journal on May 4, 1977, the bill was originally recommended for Interim Study by the House Judiciary Committee, but a floor amendment resulted in ultimate passage. (Pages 539-541.) The Senate then took up the bill and noted in its own journal, of June 14, 1977 (page 2668), that at the Senate hearing, “there were representatives from the press who endorsed it heartily, the New Hampshire Press Association which has a membership of 22, endorsed it.” No other endorsements were noted, and no objections—other than some concerns voiced by senators about the applicability of the Right-to-Know Law to the Senate—were noted. Upon enactment, the law read: 

If any body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public document or refuses access to a public proceeding to a person who reasonably requests the same, such body, agency or person may be liable for reasonable attorney’s fees and costs incurred in making the information available or the proceeding open to the public, at the discretion of the court.

In 1986, the law was changed to substantially reflect existing law, which clearly requires the government to bear the cost of attorney’s fees when it “purposefully” violates the law. 

In this history, we think that this demonstrates how the legislature—over the period of a little more than a decade—carefully evaluated the policy relative to when the government should be responsible for attorney’s fees, and made a good policy decision. After four years of requiring the government to pay in all instances, the legislature (with, it appears, the hearty endorsement of the press) decided that the pendulum should swing in the other direction—giving courts ultimate discretion. Nine years later, the legislature realized that a happy medium of punishing bad actors but protecting those who acted in good faith was appropriate. And the law has been that way for 37 years. Additionally, in 2022, the legislature created the Right-to-Know Law Ombudsman, recognizing the need for a speedier and more cost-effective alternative for resolving and adjudicating these matters. 

We urge our members to contact the members of the Senate Judiciary Committee and ask them to recommend HB 307 as Inexpedient to Legislate. This is an area of the Right-to-Know Law that has already been carefully evaluated by multiple legislatures and needs no further changes.