Revision: Jan. 10, 2021, 1:59 p.m.
HB 481-FN-A - AS INTRODUCED
2021 SESSION
21-0614
05/04
HOUSE BILL 481-FN-A
AN ACT establishing the office of the right-to-know ombudsman and making an appropriation therefor.
SPONSORS: Rep. DiLorenzo, Rock. 17; Rep. Langley, Hills. 8; Rep. G. Sanborn, Graf. 6; Rep. Hopper, Hills. 2; Rep. Cushing, Rock. 21; Rep. M. Smith, Straf. 6; Rep. Weyler, Rock. 13; Rep. Ulery, Hills. 37; Sen. Rosenwald, Dist 13; Sen. Giuda, Dist 2
COMMITTEE: Judiciary
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
21-0614
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
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 biennium ending June 30, 2023. 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, 2021.
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, 2021.
21-0614
1/4/21
HB 481-FN-A- FISCAL NOTE
AS INTRODUCED
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 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | Indeterminable Increase | Indeterminable Increase | $0 |
Revenue | $0 | Indeterminable | Indeterminable | Indeterminable |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Judicial Branch Facility Improvement Fund (RSA 490:26-c) and Technology Fund (RSA 490:26-h) | |||
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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 amend RSA 91-A:7 concerning petitions to the superior court regarding Right-to-Know violations and would establish an alternative complaint resolution process and a $25 filing fee, which may be waived. The Ombudsman’s final ruling would be appealable to the superior court. 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, 2021. The office would sunset on July 1, 2024. The bill appropriates funds, that will not lapse, to the Department of State necessary to fund the position for the biennium ending June 30, 2023. State appropriations, revenue, and expenditures will be impacted by an indeterminable amount.
The Department of State assumes the position of Ombudsman would be unclassified with a salary established pursuant to RSA 94 and an unknown amount required for office space, equipment and supplies. Therefore, the Department is not able to determine the State expenditures associated with establishing this office.
The Judicial Branch is unable to determine how many complaints would be filed with the Office of the Ombudsman that are filed with the Superior Court under current law. The filing fee for a Superior Court complaint is $280 of which 30% is deposited in the judicial branch information technology fund and 6% is deposited in the judicial branch facility improvements fund. For the last 3 years, a total of 40 Right-to-Know complaints were filed (17 in 2018, 10 in 2019 and 13 in 2020 as of December 2020). For each complaint filed with the Office of Ombudsman that would be otherwise filed with the Superior Court, no filing fee would be charged, representing a loss of revenue to the court system. The filing fee for a complaint filed with the Office of the Ombudsman would be $25 under the bill. If an appeal is made with the Superior Court from a decision of the Office of the Ombudsman by a citizen, no filing fee or surcharge would be charged. It is expected, however, that the total decrease in fees would be less than $10,000 per year. Appeals to the Superior Court would be de novo, meaning essentially appeals from the Office of the Ombudsman would take the same resources as if the complaint had been originally filed with the Superior Court. The Judicial Branch assumes, however, that some cases filed with the Office of the Ombudsman would not be appealed to the Superior Court, but is unable to determine how many would or would not be appealed.
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