Responding to concerns from police and town officials, the N.H. Senate Judiciary Committee voted unanimously Thursday against a bill aimed at making it easier for people to access public records.
House Bill 66, which the House passed, 207-164, on April 10, will still be forwarded to the full Senate, but the Senate Judiciary Committee’s recommendation against it likely means it will die.
When it is scheduled for a Senate hearing, it will be placed on the “consent calendar,” a section of the agenda where bills are generally voted on as a group without debate and committee recommendations are usually followed.
A key provision of the bill is a mandate that, in some cases, governmental bodies must provide records electronically or by mail instead of requiring people to show up to get them.
Sens. Debra Altschiller, D-Stratham; Tara Reardon, D-Concord; William Gannon, R-Sandown; Daryl Abbas, R-Salem; and Mark McConkey, R-Freedom, voted against HB 66.
“I’d like to say the bill in its idea is a really good idea and unfortunately the application of it is not quite fleshed out,” Altschiller said before the vote. “We heard from people saying ‘we can’t meet this without some better parameters.’ ’’
In the legislation, the requirement that governmental bodies mail or send records electronically would be limited to certain requesters: members of the media as well as New Hampshire residents, business people and property owners.
The measure specifies that governmental agencies wouldn’t be required to provide electronic records if they lacked the technological capability to do so, or if this would be unduly burdensome or compromise security. When mailing records, they would be allowed to charge for postage.
Open-record advocates contend New Hampshire’s current right-to-know law, RSA 91-A, needs to be changed because governmental bodies sometimes act unreasonably by demanding that people come in person to receive documents.
RSA 91-A, enacted in 1967, says in its preamble, “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussion and records of all public bodies, and their accountability to the people.”
Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, testified in favor of HB 66 Thursday before the Senate Judiciary Committee.
“Sometimes you might need a couple pages of a document, a police report, in some town that might be one, two, three hours away,” he said. “It could just be scanned and emailed and you could have it in 30 seconds, but the municipality insists ‘you need to come here during our business hours.’
“I just think that’s unreasonable and actually a significant barrier to transparency when it is literally such a minimal burden.”
Peterborough Town Administrator Nicole MacStay was one of several people who testified against the bill, which opponents asserted would expand public records requirements that already are sometimes difficult to meet.
She gave as an example a request from someone “who claimed to be a journalist.”
“He indicated that he wanted to see every instance where the Peterborough police had used handcuffs during an interaction, which meant every single arrest record we had, for a 20-year period,” MacStay said.
Each record had to be retrieved from archives by a sworn police officer and had to be redacted, she said, adding the requester ended up using the records to create content that was placed behind a paywall for a website.
Katherine Kokko, of Milford, president of Right to Know-N.H., which advocates for open records, said many communities are already providing records by email or letter, while some “have dug in” and refuse to do so.
Cordell Johnston, an attorney who practices municipal law in New Hampshire, told the committee the bill would significantly expand the right-to-know law.
“It may not be so hard when you’re dealing with electronic records,” he said. “My concern is when someone asks for all the selectmen minutes for the last 20 years, some of which exist only in paper copy.”
Under current law, the town clerk might gather the material and the requester could come in, review it and make copies, if needed.
“But under this bill, they could require the town to pull them all out, make copies of them, staple them, whatever, put them in a big box, go to the post office and send them,” Johnston said. “That’s a lot of work.”
The state’s current public records law says that every “citizen” has the right to inspect government records.
HB 66 would change “citizen” to “person” to make clear records should be available to people outside the state, Rep. Bob Lynn, R-Windham, told the Senate committee.
He said public records are already generally provided to people outside the state. But critics of HB 66 said the word change would be significant.
The N.H. Municipal Association, which represents towns and cities across the state, said in its April 18 newsletter that the word change would “likely lead to a flood of requests from non-residents, increasing administrative burdens and costs for municipalities.”
Ken Loui, Manchester’s assistant police chief, testified against HB 66 on behalf of the N.H. Association of Chiefs of Police. He said some police departments have pulled patrol officers off the street to fulfill records requests.
“Right now, we are on track to exceed last year’s 1,400 public records requests that were made to our police department,” he said. “The burden is overwhelming and crushing.”
Rick Green can be reached at 603-352-1234, extension 1435, or rgreen@keenesentinel.com.
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