The Right-to-Know Ombudsman Is Here

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA’s legal services or your municipal attorney.

As of early this year, municipalities and other public bodies and agencies are facing a new process for complaints under RSA 91-A, the state’s Right-to-Know Law. Since the law’s enactment over 50 years ago, the only remedy for a person “aggrieved” by a violation of the law was to file a complaint in superior court and pursue the matter as any other civil case. In 2022, however, the legislature enacted HB 481, creating the office of the Right-to-Know Law Ombudsman. It is hoped that the result will be faster resolution and lower costs, but we are far from an answer to that question. In any event, cities and towns, and their legal counsel, will need to become familiar with this new forum.

Legislative history

The new law was the culmination of several years of legislative effort. In 2017 the legislature created a commission “to study processes to resolve right-to-know complaints.” After considering numerous options, the commission settled on the idea of an ombudsman–a single official who could investigate and rule on citizen complaints, subject to appeal. At the time, nine other states had an ombudsman for enforcement of their open meeting and/or public record laws.

The first ombudsman bill was filed the next year, 2018. The Senate passed SB 555, and the House passed it once but then referred it to the House Finance Committee for further review. The committee raised concerns about the cost to hire an ombudsman, and the House ultimately killed the bill. Ombudsman bills were filed every year after that–in 2019 there were three separate ombudsman bills–but each of them died for one reason or another:  concerns about cost, disagreement between the House and the Senate, the 2020 Covid shutdown.

This author was Government Affairs Counsel at the New Hampshire Municipal Association during those years, and NHMA supported the ombudsman concept, but always with caution. It was hard to disagree with the goal of making it easier and cheaper to resolve right-to-know disputes; but if one person was going to be given decision-making authority, everything depended on the credibility of that person.

To bolster that credibility, NHMA suggested that the ombudsman should be appointed by the supreme court, as some other quasi-judicial officers are (e.g., members of the Board of Tax and Land Appeals and the Housing Appeals Board), rather than by the governor and executive council. This would minimize the possibility of political influence and biases. That suggestion was never adopted.

More successful was the insistence that decisions of the ombudsman be appealable to the superior court, rather than directly to the supreme court. Because the supreme court ordinarily does not review findings of fact, a direct appeal to the supreme court would mean the ombudsman’s findings of fact are final. An appeal to the superior court, which the new law provides for, offers an opportunity to have those findings reviewed.

Finally, while some were concerned that the ombudsman’s position would cost too much, NHMA and others were concerned that the legislature was proposing to spend too little. Early versions of the legislation suggested the ombudsman, who was required to be a member of the New Hampshire bar, might be paid as little as $48,000 per year. It was disconcerting to think about what kind of lawyer would take the job for that money.

Fortunately, the legislation that eventually passed in 2022 simply called for an appropriation of “the amount necessary to pay for the position of ombudsman.” (Apparently, state appropriations are not governed by the “sum certain” rule that applies to town meeting appropriations.) It is reported that the amount ultimately settled on was $100,000.

NHMA’s concerns were further mitigated by the inclusion of a sunset date in the legislation. The law is automatically repealed in 2025 unless the legislature re-enacts it. Thus, if it is a total disaster, there is a way out.

The ombudsman arrives

Still, much depended on the person appointed to the position. There was no telling who might apply, and the prospect of having an anti-government activist in the position was troubling.

Good news came late in 2022 when Governor Sununu nominated Thomas Kehr for the position. Mr. Kehr is an attorney with 38 years of experience, the last 20 at the state Department of Administrative Services. In an interview with the New Hampshire Bulletin, Mr. Kehr stated that he has been on both sides of right-to-know requests, first in private practice and then at DAS. As a 20-year employee of the executive branch, presumably he appreciates the legitimate concerns of government officials trying to comply with the law. Mr. Kehr was sworn in on January 27 of this year.

The law.  The new law is codified at RSA 91-A:7-a through :7-d, with the ombudsman’s process set out in section 7-b. The law gives a choice to any person who has a right-to-know complaint:  follow the traditional route of a lawsuit in superior court, or file a complaint with the ombudsman. The superior court filing fee is $280, while the fee to file with the ombudsman is $25, so that by itself will tend to steer people toward the ombudsman. The options are mutually exclusive–choosing one route forecloses the other (although, as noted above, decisions by the ombudsman may be appealed to the superior court).

Mr. Kehr has indicated that he is preparing a standard complaint form (it may exist by the time this article is published), and that the parties will be referred to as the “claimant” and the “respondent.” The complaint will need to include a copy of the request for records the claimant made to the public body or agency (assuming the case is about disclosure of records, rather than access to meetings) and a copy of the public body or agency’s response, if any.

Once a complaint is filed, the ombudsman will provide a copy to the public body or agency, which will then have 20 days to file an answer (as compared to 30 days in superior court). The answer must include “applicable law and, if applicable, a justification for any refusal to [produce] or delay in producing the requested governmental records, [to allow] access to meetings open to the public, or otherwise comply with the provisions of [RSA 91-A].”

The law authorizes the ombudsman to “compel timely delivery of governmental records within a period not less than 14 days or more than 30 days” and conduct a confidential in camera review of records (i.e., private review of the records by just the ombudsman himself). He also is authorized to “compel interviews with the parties.” The law says no more about this, and it might be interpreted to suggest that the ombudsman could interview each party privately, without the other party present. However, in a pre-rulemaking public comment hearing, Mr. Kehr indicated that this would not happen; any “interviews” will be with both parties present.

The ombudsman may hold a hearing and “shall  . . . issue a ruling within 30 calendar days following the deadline for receipt of the parties’ submissions.” (Presumably this means 30 days after post-hearing submissions.) He also may “expedite resolution of the complaint upon a showing of good cause.” Rulings on expedited complaints must be issued within 10 days, “or sooner where necessary.”

The law authorizes the ombudsman to order disclosure of records and access to meetings, and to “order any other remedy to the same extent as provided by the [superior] court under RSA 91-A:8.” This includes awarding attorney fees to the claimant if the public body or agency knew or should have known that its conduct violated the law, or ordering the claimant to pay attorney fees if the complaint was frivolous or was filed in bad faith. It also includes imposing civil penalties of up to $2,000 and ordering remedial training.

Rules needed

While the law establishes the basic process, plenty of details are left unresolved. These will be addressed by rules that the law requires the ombudsman to adopt. Unfortunately, he could not begin that process until he took office, yet he also had to begin accepting cases immediately, leaving him in the position of accepting cases while he is adopting rules for those cases–a bit like trying to build a house while you’re living in it.

Rulemaking by state agencies (including the ombudsman) is governed by RSA 541-A, and the process takes several months at best. The agency must draft proposed rules, publish notice, hold a public hearing to accept comments, prepare final proposed rules, submit them to the Joint Legislative Committee on Administrative Rules, and (assuming approval by the committee) adopt final rules. All of these steps have prescribed time periods that, when placed end-to-end, can lead to a very long process, as shown in a rather intimidating flow chart that explains rule making under RSA 541-A.

As of this writing, the ombudsman is in the early stages of the rule-making process, so it is likely to be several months before final rules are in place.

Interim process

In a procedural order issued on March 17, the ombudsman announced that while the rules are being developed, he will operate under the requirements of the statute (RSA 91-A:7-b) and the model procedures for administrative proceedings adopted by the New Hampshire Department of Justice in rules known as Jus 800. He noted, however, that “interim adjustments in the application of the Jus 800 rules may be in order while this office deals with cases pending prior to the adoption of . . . rules,” especially as necessary to follow the time requirements of the statute.  For example, while Rule Jus 806.01(c) allows 30 days to file an objection to a motion, the ombudsman has determined that 10 days is more consistent with the goal of an expeditious process, and has established that as the normal objection period.

In general, however, it appears likely that most of Jus 800 will apply, so municipalities and their attorneys should plan to follow those rules unless the ombudsman determines otherwise. One important question is whether the usual rules of evidence will apply. Under rule 812.04, receipt of evidence is governed by RSA 541-A:33, which in turn says that the rules of evidence do not apply in adjudicative proceedings, and that “any oral or documentary evidence may be received; but the presiding officer may exclude irrelevant, immaterial or unduly repetitious evidence.” The “rules of privilege recognized by law”–such as the attorney-client privilege–must be given effect.

Another question is whether a non-party may be allowed to intervene in the process. For example, if there is a right-to-know request for records that affect the privacy of an employee or another individual, that individual may want a say in the matter. Under the Jus 800 rules (Rule 809.01), a non-party has a right to intervene if his or her “rights or other substantial interests might be affected by the proceeding.” It would be a good idea for the ombudsman to include a similar provision in his rules.

Also unknown at this point is whether remote participation in the proceedings will be allowed. Having a single forum for right-to-know complaints has its advantages, but one disadvantage is that the ombudsman has only one office, in Concord, and probably has a limited travel budget. For disputes arising in far northern New Hampshire, a hearing before the ombudsman may be less convenient than Coos County Superior Court, unless the hearings can be held remotely.

Appeals

As mentioned above, the ombudsman’s decisions can be appealed to the superior court. This, of course, will eliminate any savings of time and expense in those cases that are appealed, but it is a necessary safeguard. It also seems unlikely that many cases will be appealed. If the ombudsman issues a credible and well reasoned decision, the losing party in most cases would be well advised to accept it and end the matter. Perhaps only the most contentious or high-stakes cases will be appealed.

If the ombudsman’s decision is appealed, RSA 91-A:7-c states that the court must treat the ombudsman’s findings as “prima facie lawful and reasonable . . . unless [the court] is persuaded by a balance of probabilities on the evidence before it that the ombudsman's decision is unreasonable.” This standard seems self-defeating:  the judge must treat the ombudsman’s findings as reasonable unless he or she finds that they are not reasonable. Nevertheless, the apparent intent is that the ombudsman’s findings are subject to some deference, a fact that may further discourage appeals.

The outlook

A process that allows for faster, less expensive resolution of right-to-know complaints is a double-edged sword. Making the process easier and cheaper is desirable, but it also will almost assuredly lead to the filing of more complaints. And although the process may be less complex than a trial in superior court, most municipalities will still want to be represented by legal counsel; it may be less expensive, but it won’t be free. Whether the overall cost will increase or decrease is anyone’s guess.

Of course, if the increased likelihood of legal action encourages more scrupulous compliance with the law, that is a good thing. Those of us who represent municipalities know that most officials want to comply with the law; but all of us have encountered some who take it less seriously. Knowing that a vigilant citizen can force compliance for a $25 filing fee may encourage more attention to the law.

Further, there may be situations in which the ombudsman can be used in a non-adversarial manner to assist local officials with difficult decisions. For example, when faced with a right-to-know request involving someone’s personal information, municipal officials often have a tough choice:  disclose the information and risk a privacy violation, or deny the request and end up in a lawsuit, even if the municipality itself has no stake in the result. The “balancing test” mandated in these situations sounds easy until you’re the one who has to apply it. With the ombudsman, the municipality might deny the request, let the citizen file a complaint, and simply yield to the ombudsman’s decision. If the individual whose privacy is affected has the right to intervene, as suggested above, this may be a useful way to resolve these cases without a full-blown lawsuit.

The ombudsman process is going to be an interesting experiment. While municipalities are likely to see more complaints filed, it will take less time and, perhaps, less money to get through them. The net effect will not be known for many months and will not be the same for all municipalities, but one can reasonably hope that it will be an improvement over the existing, court-centered process. And as always, careful compliance with the law will remain the best way to avoid a complaint in any forum.

Cordell Johnston is an attorney in Henniker, New Hampshire, whose practice is limited to representing towns and cities. He may be contacted at 603-748-4019 or cordell@cajohnston.com.