Revision: March 4, 2019, 11:30 a.m.
HB 729-FN-A - AS AMENDED BY THE HOUSE
HOUSE BILL 729-FN-A
SPONSORS: Rep. Weyler, Rock. 13; Rep. Wuelper, Straf. 3
This bill establishes procedures to streamline the resolution of complaints under RSA 91-A. This bill establishes the citizens' right-to-know appeals commission and the office of the right-to-know ombudsman. This bill also establishes an alternative process to resolve right-to-know complaints.
This bill is a result of the commission established in 2017, 126.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
27Feb2019... 0402h 19-0414
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-b and in accordance with RSA 91-A:7-c.
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-c.
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 Citizens' Right-to-Know Appeals Commission Established. There is established a commission to provide oversight for an alternative right-to-know complaint resolution process.
I. The members of the commission shall be as follows:
(a) One member of the senate, appointed by the president of the senate.
(b) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(c) A member, appointed by the chief justice of the supreme court.
(d) The secretary of state, or designee.
(e) Ten citizen members, one from each county, no more than 4 of whom shall be current, local, county, state or federal employees or currently serving in any elected or appointed capacity with any political subdivision, public agency or public institution, appointed by the governor with advice and consent of the council.
II. The members of the commission shall serve without compensation, but shall be reimbursed for necessary travel and other necessary expenses. Legislative members shall receive mileage at the legislative rate when attending to the duties of the commission.
III. Legislative members of the commission shall serve a term coterminous with their term in office. The members appointed under subparagraph I(e) shall serve for a term of 3 years, except that the initial appointment of such members shall be for staggered terms of one, 2, and 3 years. No member shall serve more than 3 consecutive terms. No member under subparagraph I(e) shall be a current lobbyist or an attorney for any entity subject to this chapter, or an attorney for any organization representing the interests of such entity. Nor shall any such member be employed by any such lobbyist or attorney. The member appointed under subparagraph I(d) shall recuse himself or herself from any court proceedings involving appeals under this chapter. The members appointed under subparagraphs I(c)-(d) shall be advisory only members who shall advise the voting members on questions of law and existing policy governing RSA 91-A.
IV. The commission shall:
(a) Establish rules of procedure, pursuant to RSA 541-A, to accomplish the mission of the commission to make resolution of complaints under this chapter fast, easy, and inexpensive.
(b) Make recommendations to the legislature concerning proposed changes to this chapter.
(c) Create, and update annually, educational materials relative to this chapter.
V. The members of the commission shall elect a chairperson and a vice chairperson annually from among the voting members. The first meeting of the commission shall be called by the senate member. The first meeting of the commission shall be held within 45 days of the effective date of this section. Seven voting members of the commission shall constitute a quorum.
VI. The commission shall be administratively attached to the department of state.
VII. Beginning November 1, 2020, and each November 1 thereafter, the commission shall submit an annual report of its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, and the governor. The report shall also include the total number of complaints received, the number of complaints received concerning public records and public meetings, the number of complaints received concerning state and county agencies, municipalities, school administrative units, and other public entities, the number of complaints in which a ruling was rendered by the ombudsman, the number of violations of each provision of this chapter found by the ombudsman, and the number of ombudsman rulings that were appealed to the superior court, including whether the appeal was from a complainant or a public agency or official, and whether the ombudsman’s ruling was sustained before the superior court.
91-A:7-b Office Established. There is hereby established the office of the right-to-know ombudsman to be administratively attached to the department of state under RSA 21-G:10. The ombudsman shall be appointed by the governor and council, after consultation with the commission, and shall have the following minimum qualifications:
I. Be a member of the New Hampshire bar.
II. Have a minimum of 10 years full-time practice of law in any jurisdiction.
III. Be experienced with and knowledgeable of the provisions of this chapter, the federal Freedom of Information Act, and other states' laws regarding right-to-know.
IV. Complete a minimum of 3 hours of continuing legal education courses or other training relevant to the provisions of this chapter.
91-A:7-c 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-b. 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.
II. Once a complaint has been filed and provided by the ombudsman to the public body or public agency, the public body or public agency shall have 20 calendar 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 to a reasonable time frame by the ombudsman for good cause.
III. In reviewing complaints filed with the ombudsman, the ombudsman shall be authorized to:
(a) Compel timely delivery of records within a reasonable time, regardless of medium, and conduct a confidential in-camera review of records where 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.
IV. The ombudsman may draw negative inferences from a party’s failure to participate and comply with orders during the review process.
V. In implementing the provisions of this section, the ombudsman shall follow the procedures established by the citizens' right-to-know appeals commission.
VI. The ombudsman shall determine whether there have been any violations of this chapter and issue a ruling within 30 calendar days following receipt of the parties’ submissions. This 30-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 in camera 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 in camera review shall be exempt from the public disclosure provisions of RSA 91-A.
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-d 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 calendar days after the ombudsman’s ruling is issued. 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. Citizen-initiated appeals shall have no filing fee or surcharge. 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 appeal to the superior court.
II. A superior court appeal of the ombudsman’s ruling shall review the 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.
91-A:7-e Rulemaking. The citizens' right-to-know appeals commission, in consultation with the secretary of state, shall adopt rules pursuant to RSA 541-A relative to:
I. Establishing procedures to streamline the process of resolving complaints under this chapter.
II. Content of educational materials under RSA 91-A:7-a.
III. Other matters necessary to the proper administration of RSA 91-A:7-a through RSA 91-A:7-d.
4 Appropriation. The sum of $48,000 for the fiscal year ending June 30, 2020 is hereby appropriated to the department of state for the purpose of compensating the position of ombudsman established in RSA 91-A:7-b as inserted by section 3 of this act. This appropriation is in addition to any other funds appropriated to the department of state. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
I. RSA 91-A:7, II-IV, relative to violation.
II. RSA 91-A:7-a through 91-A:7-e, relative to the citizen's right-to-know commission, office of the ombudsman, complaint process, appeal and enforcement, and rulemaking.
I. Sections 1 and 4 of this act and, RSA 91-A:7-a and RSA 91-A:7-e as inserted by section 3 of this act shall take effect July 1, 2019.
II. Section 5 of this act shall take effect July 1, 2024.
III. The remainder of this act shall take effect April 1, 2020.
HB 729-FN-A- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2019-0402h)
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill would establish a Citizens’ Right-to-Know Appeals Commission and the Office of the Right-to-Know Ombudsman. While aggrieved parties may still file a petition with the superior court to receive injunction relief pertaining to RSA 91-A violations, this bill establishes an alternative procedure to resolve the complaint with the Office of the Right-to-Know Ombudsman. Additionally, this bill tasks the Commission with establishing administrative rules to implement this bill and making recommendations to the Legislature concerning proposed changes to RSA 91-A. The provisions of the legislation are repealed effective July 1, 2024.
This bill makes the Commission and Office of the Ombudsman administratively attached to the Department of State and appropriates $48,000 to the Department to compensate the position of Ombudsman established in this bill. Besides compensating the Ombudsman, the Department cannot determine if additional expenditures will be required to provide administrative support.
The Department of Administrative Services states members of the Right-to-Know Appeals Commission would serve without compensation, but would be entitled to travel and other expenses. The sum of $48,000 is appropriated for the purpose of compensating the Ombudsman, although it is unclear if this amount is intended to cover salary alone or is also intended to cover employee benefits such as health care and retirement. It is unknown how many cases the Ombudsman may hear in the course of a year, how often the Commission may meet, or how far members may travel for meetings, making it impossible to determine mileage and expenses in advance. If the new procedures result in an increase in the number of "Right-to-Know" complaints filed, which is not certain, expenditures made by state, county and local government units to defend against such complaints would correspondingly increase. In light of the foregoing, this bill would result in something greater than $48,000 in state expenditures for each fiscal year. The impact, if any, on county or local government would be indeterminable and will depend upon which entities are subject to complaints, the cost of defending the particular complaints, the nature of the rules adopted by the Commission and the monetary sanctions, if any, imposed on entities by the ombudsman.
The New Hampshire Municipal Association assumes because 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 Association indicates the bill could reduce municipal expenditures for legal fees. However, the Association suggests a less formal process may encourage filing of more right-to-know complaints. The Association states the effects are likely to vary significantly among municipalities and the impact on municipal expenditures cannot be determined. The Association states there should be no impact on municipal revenues.
The Judicial Branch states the proposed bill would amend RSA 91-A:7 concerning petitions to the superior court regarding right-to-know violations and would establish an alternative complaint resolution process through the Office of the Right-to-Know Ombudsman established by the bill. The Ombudsman’s final ruling would be appealable to the superior court. The potential fiscal impact to the Branch would be in savings if fewer citizens file right-to-know cases in the superior court and do not appeal decisions of the Ombudsman to the superior court. The Branch indicates right-to-know cases have been classified as routine equity cases in the last judicial needs assessment. The Branch has no information on how many fewer right-to-know cases may result from the bill, but provides that the estimated cost of an average routine equity case will be $265 in FY 2020 and $269 in FY 2021. These amounts do not consider the cost of any appeals that may be taken following trial. The recent volume of right-to-know cases in the superior court would indicate any savings to the superior court would likely be less than $10,000. It should be noted that average case cost estimates for FY 2020 and FY 2021 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Department of Justice reports this bill will have no fiscal impact.
Department of State, Department of Administrative Services, New Hampshire Municipal Association, Judicial Branch, and Department of Justice