HB 103-FN-A - AS INTRODUCED
HOUSE BILL 103-FN-A
SPONSORS: Rep. L. Ober, Hills. 37; Rep. Weyler, Rock. 13; Rep. Leishman, Hills. 24; Sen. Carson, Dist 14; Rep. Torosian, Rock. 14
I. Establishes procedures to streamline the resolution of complaints under RSA 91-A.
II. Establishes the office of the right-to-know ombudsman.
III. Establishes an alternative process to resolve right-to-know complaints.
IV. Makes an appropriation for the purposes of the bill.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Intent. The purpose of this act is to provide the public with an easier, less expensive, and faster alternative process to resolve complaints under RSA 91-A while maintaining independence, credibility, and impartiality and minimizing any political influence.
I. Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. In order to satisfy the purposes of this chapter, the courts shall give proceedings under this chapter high priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner or his or her counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. Subject to objection by either party, all documents filed with the petition and any response thereto shall be considered as evidence by the court. All documents submitted shall be provided to the opposing party prior to a hearing on the merits. When any justice shall find that time probably is of the essence, he or she may order notice by any reasonable means, and he or she shall have authority to issue an order ex parte when he or she shall reasonably deem such an order necessary to insure compliance with the provisions of this chapter.
II. In lieu of the procedure under paragraph I, an aggrieved person may file a complaint with the ombudsman under RSA 91-A:7-a and in accordance with RSA 91-A:7-b.
III. A person’s decision to petition the superior court forecloses the ability to file a complaint with the ombudsman pursuant to RSA 91-A:7-b. However, if a similar complaint has previously been filed with the superior court, the ombudsman shall not rule until after the superior court case is closed.
IV. A person’s decision to file a complaint with the ombudsman forecloses the ability to petition the superior court until the ombudsman issues a final ruling or the deadline for such a ruling has passed.
91-A:7-a Office Established. There is hereby established the office of the right-to-know ombudsman to be administratively attached to the department of justice under RSA 21-G:10. The ombudsman shall work no more than 20 hours per week. The ombudsman shall be appointed by the governor and council and shall:
I. Be a member of the New Hampshire bar.
II. Have a minimum of 10 years full-time practice of law in any jurisdiction.
91-A:7-b Complaint Process.
I. Any party aggrieved by a violation of this chapter shall have the option to either petition the superior court or file a signed, written complaint with the office of the ombudsman, established under RSA 91-A:7-a. Any signed, written complaint filed with the ombudsman shall attach, if applicable, the request served on the public agency or official and the written response of the public agency or official. The complaint shall be deemed sufficient if it states facts constituting a violation of this chapter. The complaint shall be accompanied by a $300 fee. Complaints shall not be accepted until the fee has been paid.
II. All complaints shall be examined on a first received basis. If multiple complaints have been received and are pending they shall be placed in a queue.
III. Once a complaint is being examined by the ombudsman, the public body or public agency shall have 20 working days to submit an acknowledgment of the complaint and an answer to the complaint, which shall include applicable law and, if applicable, a justification for any refusal to or delay in producing the requested information. This 20-day deadline may be extended for a reasonable time frame by the ombudsman for good cause.
IV. In reviewing complaints filed with the ombudsman, the ombudsman shall be authorized to:
(a) Compel timely delivery of records, regardless of medium, and conduct a confidential review of records if the ombudsman concludes that it is necessary and appropriate under the law.
(b) Compel interviews with the parties.
(c) Order attendance at hearings within a reasonable time if the ombudsman determines that a hearing is necessary.
(d) Issue findings in writing to all parties.
(e) Order a public body or public agency to disclose requested records within a reasonable time, provide access to meetings, or otherwise comply with the provisions of this chapter, subject to appeal.
(f) Make any finding and order any other remedy to the same extent as provided by the court under RSA 91-A:8.
V. The ombudsman may draw negative inferences from a party’s failure to participate and comply with orders during the review process.
VI. The ombudsman shall determine whether there have been any violations of this chapter and issue a ruling within 20 working days following receipt of the parties’ submissions. This 20-working day deadline may be extended to a reasonable time frame by the ombudsman for good cause. The ombudsman may also expedite resolution of the complaint upon a showing of good cause. Rulings on expedited complaints shall be issued within 10 business days, or sooner where necessary.
VII. The ombudsman shall, where necessary and appropriate under the law, access governmental records that a public body or public agency believes are exempt in order to make a ruling concerning whether the public body or public agency shall release the records or portions thereof to the public. The ombudsman shall maintain the confidentiality of records provided to the ombudsman by a public body or public agency under this section and shall return the records to the public body or public agency when the ombudsman's review is complete. All records submitted to the ombudsman for review shall be exempt from public disclosure provisons of RSA 91-A during such review.
VIII. Nothing in this section shall affect the ability of a person to seek relief in superior court under RSA 91-A:7, I in lieu of this process.
91-A:7-c Appeal and Enforcement.
I. Any party may appeal the ombudsman’s final ruling to the superior court by filing a notice of appeal in superior court no more than 30 days after the ombudsman’s ruling is issued and made public. The ombudsman’s ruling shall be attached to the document initiating the appeal, admitted as a full exhibit by the superior court, considered by the judge during deliberations, and specifically addressed in the court’s written order. The public body or public agency shall pay the sheriff’s service costs if the public body or public agency, or its attorney, declines to accept service. Nothing in this section shall prevent a superior court from staying an ombudsman’s decision pending a decision by the superior court.
II. On appeal, the superior court shall review the ombudsman’s ruling de novo.
III. If the ombudsman’s final ruling is not appealed, the ombudsman shall, after the deadline has passed, follow up with all parties, as required, to verify compliance with rulings issued.
IV. The ombudsman's final rulings which are not appealed may be registered in the superior court as judgments and enforceable through contempt of court. If such action is necessary to enforce compliance, all costs and fees, including reasonable attorney fees, shall be paid by the noncompliant public body or public agency.
4 Appropriation. The amount necessary to pay for the position of ombudsman, established in RSA 91-A:7-a as inserted by section 3 of this act, is hereby appropriated to the department of justice for the fiscal year ending June 30, 2020. This appropriation shall be nonlapsing and is in addition to any other funds appropriated to the department of justice. The governor is authorized to draw a warrant for said sum net of any money in the treasury not otherwise appropriated.
I. Section 4 of this act shall take effect upon its passage.
II. The remainder of this act shall take effect July 1, 2020.
HB 103-FN-A- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill amends RSA 91-A:7 regarding petitions to the superior court regarding right-to-know violations and would establish an alternative right-to-know complaint resolution process through the establishment of the Office of the Right-to-Know Ombudsman. The Ombudsman shall be appointed by the Governor and Council, and shall be administratively attached to the Department of Justice. Complaints filed with the Ombudsman shall be accompanied by a $300 fee. The bill makes a nonlapsing appropriation from funds not otherwise appropriated to the Department of Justice for Fiscal Year 2020 to pay for the position of ombudsman.
The Department of Justice (DOJ) states it would have to provide legal counsel to all state boards, agencies and commissions regarding the complaints filed pursuant to this bill, which it anticipates it could do within its current budget. The DOJ estimates the cost of a part-time attorney position to handle complaints would cost approximately $44,000 annually. It is not certain if the $300 complaint fee would cover this cost. The overall fiscal impact is indeterminable because it is uncertain how many complaints would be received.
The Judicial Branch indicates the ombudsman's final ruling would be appealable to the superior court de novo. The potential fiscal impact to the Judicial Branch is a potential savings to the extent citizens do not file right-to-know cases in the superior court and do not appeal decisions of the ombudsman to the superior court. Right-to-know cases are classified as routine equity cases in the last judicial needs assessment with an average cost in superior court of $265 in FY 2020 and $269 in FY 2021. The recent case volume of right-to-know cases in the superior court include 15 such cases filed in calendar year 2015, 16 in 2016, and 9 in 2017. Based on this volume and cost per case, the savings to the superior court from the proposed bill will be less than $10,000. These costs do not consider the cost of any appeals that may be taken following trial. Cost estimates are based on data that is more than 10 years old and does not reflect changes to the court over that same period of time or the impact these changes may have on processing the various case types.
The New Hampshire Municipal Association has previously indicated the presumption that the ombudsman process would be less formal than a trial in superior court, the process may be less expensive for litigants than the current process. If so, the bill could reduce municipal expenditures for legal fees. However, a less formal process may encourage filing of more right-to-know complaints. The effects are likely to vary significantly among municipalities and the impact on municipal expenditures cannot be determined. There should be no impact on municipal revenues.
The New Hampshire Association of Counties has previously indicated there would be no impact on county revenues or expenditures.
Department of Justice and Judicial Branch
|Jan. 2, 2019||Introduced 01/02/2019 and referred to Judiciary HJ 2 P. 37|
|Jan. 9, 2019||Public Hearing: 01/09/2019 10:00 am LOB208|
|Jan. 15, 2019||Executive Session: 01/15/2019 01:00 pm LOB208|
|Jan. 17, 2019||Subcommittee Work Session: 01/17/2019 10:00 am LOB 208|
|Jan. 23, 2019||Subcommittee Work Session: 01/23/2019 01:00 pm LOB 104|
|Feb. 12, 2019||Executive Session: 02/12/2019 10:00 am LOB 208|
|Committee Report: Inexpedient to Legislate (Vote 19-0; CC)|
|Feb. 27, 2019||Committee Report: Inexpedient to Legislate for 02/27/2019 (Vote 19-0; CC) HC 13 P. 11|
|Feb. 27, 2019||Inexpedient to Legislate: MA VV 02/27/2019|
|Jan. 9, 2019||House||Hearing|
|Jan. 15, 2019||House||Exec Session|
|Feb. 12, 2019||House||Exec Session|
|Feb. 27, 2019||House||Floor Vote|