Revision: March 9, 2020, 2:33 p.m.
SB 696-FN-A - AS AMENDED BY THE SENATE
03/05/2020 0481s
2020 SESSION
20-2985
01/10
SENATE BILL 696-FN-A
AN ACT establishing the office of the right-to-know ombudsman and making an appropriation therefor.
SPONSORS: Sen. Giuda, Dist 2; Sen. Fuller Clark, Dist 21; Sen. Carson, Dist 14; Sen. Gray, Dist 6; Rep. Weyler, Rock. 13; Rep. DiLorenzo, Rock. 17; Rep. Ulery, Hills. 37
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill establishes procedures to streamline the resolution of complaints under RSA 91-A. This bill establishes the office of the right-to-know ombudsman. This bill also establishes an alternative process to resolve right-to-know complaints.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/05/2020 0481s 20-2985
01/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
AN ACT establishing the office of the right-to-know ombudsman and making an appropriation therefor.
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 a simpler, less expensive, and faster alternative process to resolve complaints under RSA 91-A.
2 Right-to-Know; Violation. Amend RSA 91-A:7 to read as follows:
91-A:7 Violation.
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.
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.
3 New Sections; Office of the Ombudsman; Complaint Process; Appeals. Amend RSA 91-A by inserting after section 7 the following new sections:
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 state under RSA 21-G:10. The ombudsman shall be appointed by the governor and council and shall have the following minimum qualifications:
I. Be a member of the New Hampshire bar.
II. Have a minimum of 5 years full-time practice of law in any jurisdiction.
III. Be experienced with and knowledgeable of the provisions of this chapter and all New Hampshire laws regarding right-to-know.
IV. Annually, complete a minimum of 3 hours of continuing legal education courses or other training relevant to the provisions of this chapter.
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, along with a $25 fee, with the office of the ombudsman, established under RSA 91-A:7-a. The ombudsman shall have the discretion to waive the $25 fee upon a finding of inability to pay. 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, access to meetings, or otherwise comply with the provisions of this chapter. This 20-day deadline may be reasonably extended by the ombudsman for good cause.
III. In reviewing complaints, the ombudsman shall be authorized to:
(a) Compel timely delivery of records within a period not less than 14 days or more than 30 days unless an expedited hearing is warranted, regardless of medium and format, 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. Such hearings shall be open subject to the provisions of RSA 91-A.
(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. The ombudsman shall determine whether there have been any violations of this chapter and issue a ruling within 30 calendar days following the deadline for 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.
VI. 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 review shall be exempt from the public disclosure provisions of RSA 91-A during such review.
VII. 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 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-d Rulemaking. The ombudsman shall adopt rules pursuant to RSA 541-A relative to:
I. Establishing procedures to streamline the process of resolving complaints under this chapter.
II. Other matters necessary to the proper administration of RSA 91-A:7-a through RSA 91-A:7-c.
4 Appropriation; Applicability.
I. 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 state for the fiscal year ending June 30, 2021. This appropriation shall be nonlapsing and 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.
II. The governor and council are authorized to search, nominate, and confirm the ombudsman to have the confirmed nominee available to assume the duties of the ombudsman position on July 1, 2020.
5 Right-to-Know; Violation. Amend RSA 91-A:7 to read as follows:
91-A:7 Violation.
[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.]
6 Repeal. RSA 91-A:7-a through 91-A:7-d, relative to the office of the ombudsman, complaint process, appeal and enforcement, and rulemaking, is repealed.
I. Section 4 of this act shall take effect upon its passage.
II. Section 6 of this act shall take effect July 1, 2024.
III. The remainder of this act shall take effect July 1, 2020.
20-2985
Amended 3/9/20
SB 696-FN-A- FISCAL NOTE
AS AMENDED BY THE SENATE (AMENDMENT #2020-0481s)
AN ACT establishing the office of the right-to-know ombudsman and making an appropriation therefor.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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STATE: | FY 2020 | FY 2021 | FY 2022 | FY 2023 |
Appropriation | $0 | Indeterminable Increase | $0 | $0 |
Revenue | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
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LOCAL: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
METHODOLOGY:
This bill would establish the Office of the Right-to-Know Ombudsman (Ombudsman) and these provisions would sunset on July 1, 2024. The Ombudsman would be administratively attached to the Department of State. The Governor and Council are authorized to search, nominate and confirm the Ombudsman to assume duty on July 1, 2020. The bill appropriates funds, that will not lapse, to the Department of State necessary to fund the position for FY 2021.
While aggrieved parties may still file a petition with the superior court to receive injunctive relief pertaining to RSA 91-A violations, this bill establishes an alternative procedure to resolve the complaint with the Ombudsman and establishes a $25 fee, which can be waived, for aggrieved parties to file a complaint with the Ombudsman. Since it is unknown how many complaints will be filed and how much the Ombudsman will be compensated, state appropriations, revenue, and expenditures will be impacted by an indeterminable amount.
The Department of State previously stated it has furnished office space available that could be provided to the Ombudsman. The Department indicates there is an unknown cost for an attorney in this position depending on the salary step agreed to upon hiring.
The Judicial Branch previously stated the provisions contained in this 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 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.
AGENCIES CONTACTED:
Department of State, Judicial Branch, and New Hampshire Municipal Association