The original version of RSA 91-A:4 stated that “Every citizen … has the right to inspect all public records … and to make” copies and abstracts thereof (emphasis added). Pt. 1, Art. 8 of the NH Constitution provides that “. . . the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” Finally, today’s Right-to-Know Law addresses this question in two places. RSA 91-A:4, I says, “Every citizen … has the right to inspect all governmental records … and to copy and make memoranda or abstracts of the records” (emphasis added). RSA 91-A:4, IV(a) does not bestow this access as a right, but presents it like an obligation of the government, saying, “Each public body or agency shall, upon request … make available for inspection and copying any such governmental record” that it has, except as prohibited by statute or RSA 91-A:5.
In August of 2023, the Right-to-Know Ombudsman (RKO) received an appeal on whether a person who is not a resident and citizen of New Hampshire can use RSA 91:4 to gain access to public records. Harrison Thorp, a resident and citizen of Lebanon, Maine, a handful of miles from where Lebanon and Rochester border one another, operates a digital publication called the “Rochester Voice” (“the Voice”). The Voice is registered for trademark protection in New Hampshire as an “online newspaper” and lists as its mailing address as a post office box in Milton, New Hampshire. Thorp, acting for the Voice, had submitted a Right-to-Know request to the City of Rochester, which he reports on. Rochester declined to grant the request, arguing that only New Hampshirites have the right to use RSA 91-A to gain access to public records as “citizens.” The city argued “citizen” in the statute (which is not defined) is the same as “Resident; Inhabitant” under the law, defined as, “a person who is domiciled or has a place of abode or both in this state … and who has, through all of his or her actions, demonstrated a current intent to designate that place of abode as his or her principal place of physical presence.”
The U.S. Supreme Court issued non-binding dicta supporting this position in its 2013 case McBurney v. Young, in which it identified New Hampshire as one of the several states whose “freedom of information laws … are available only to their citizens.” Still, the U.S. Supreme Court does not have final say over the meaning and intent of New Hampshire’s statutes or state constitution, so the RKO in his decision considered the likely intent of the legislature and policy impacts of each interpretation.
He looked at the public journals from the legislature at the time it passed RSA 91-A but found no discussion of why it used the phrase “Every citizen” or what it means. He then acknowledged the outcomes that were possible under different interpretations. It would be plausible under one interpretation, he said, for a legal permanent resident who owns property and is regularly engaged in civic affairs to be denied this right if they are not a naturalized citizen. So, he looked at all the facts that connected Thorp and the Voice – residence in a neighboring jurisdiction, a New Hampshire mailing address, and practice as a journalist whose coverage area is centered in New Hampshire – to find that the statute is “likely [to] be viewed as sufficiently expansive to encompass the enterprise undertaken by Mr. Thorp in this case.”
The Right-to-Know Ombudsman is charged with speedy resolution of cases, so he made this ruling while acknowledging that he has no authority to interpret or create binding precedent for the meaning of the law. That power is reserved to the New Hampshire Supreme Court’s alone (see Bel Air Associates v. N.H. Dept. of Health and Human Services, 154 NH 228, 232 (2006)). Until the Supreme Court has ruled on this question, the U.S. Supreme Court’s dicta and the Right-to-Know Ombudsman’s narrow order are the guidance we have.