Following the Rulemaking Process of New Hampshire’s First Right-to-Know Ombudsman

Nearly one year after Thomas Kehr was sworn in as New Hampshire’s first Right-to-Know Ombudsman, fulfilling the legislative vision passed in 2022’s HB 481, the picture of what the office is and how it will work is becoming clearer.

As previously reported in the May/June edition of Town & City, the office of the Right-to-Know Ombudsman provides an alternative pathway for citizens to bring grievances if their right to observe proceedings or inspect records under RSA 91-A were unreasonably restricted. Previously, such complaints had to go straight to Superior Court, risking large costs to governments and complainants alike and a slowed-down, drawn-out process. Complaints can still be brought in the courts, but adjudications through the ombudsman’s office (the “RKO”) are intended to be less costly and more efficient without sacrificing the protections of judicial legitimacy; the RKO is bound by the state’s Administrative Procedure Act and its decisions are appealable to the courts.

Complaints are initiated when any aggrieved party – the person whose right-to-know request just got denied – files a signed, written complaint and $25 fee (which may be waived). The hearing will be subject to the Administrative Procedure Act requirements to post notice and open to the public (with exceptions) subject to the Right-to-Know law. As for the rest of the rules and procedures, the office is empowered to undergo its own administrative rulemaking, setting processes, establishing expectations, and crafting ethical standards. When Town & City last published an update on the RKO, the rulemaking process had only just begun and there were many questions about what the rules might say. Now, the process is further along, but there are still many questions to answer.

The Rulemaking Process

Like all state agencies in New Hampshire, the RKO is required to execute notice and comment in advance of rulemaking, allowing any “interested persons” to “testify and submit data, views, or arguments,” which the agency must consider. In February, the office announced it was beginning rulemaking and sought comments. The New Hampshire Municipal Association and others offered comments throughout the Spring and, on July 26, 2023, Kehr issued the RKO’s “Initial Proposal” for its administrative rules.

Following this announcement, Kehr presided over a public comment hearing on September 6 in Concord attended by NHMA as well as citizen activists and representatives from local media organizations.

What Have We Learned?

The draft rules proposed in August by the RKO can be found under Notices on the Secretary of State's website, with Sections 100 and 200 focusing on the office itself and hearing procedures and Section 300 focusing on the ethical requirements of the ombudsman.  

The hearing process is initiated when a complainant delivers their complaint and fee to the office. Requirements for complaints and the initiation process are laid out in proposed rule 203, which also provides for how complainants can have the fee waived. Following the delivery and initiation, the office will notify the other party, which will usually be an agency, city, or town. 

Upon receiving notice, the responding agency, which includes the state’s 234 municipalities, has similar requirements. The office will provide a form, and the respondent must return it with the name of the respondent entity including particular office or department, and it must identify the individual authorized to represent the agency or municipality. At this time, the RKO is requiring everything be delivered in hard-copy form.  

Once a hearing begins, there are strict procedures. Hearings will take place in person in Concord, unless a party has formally motioned for an exception. The ombudsman alone can grant motions to move proceedings if it determines that doing so would be beneficial to the efficiency of the office and fairness of the proceeding, considering these elements: distance to Concord for a witness, location of relevant evidence, availability of appropriate technology (as of the September hearing, the RKO does not have a webcam), importance of in-person proceedings to the hearing, costs to the witness and ombudsman, perceived importance of procedure, potential impact of changing procedure, and any other matter which may bear on the decision. The rules of evidence as seen in court do not apply, but the RKO rules address how information will be gathered and assessed.

Witnesses and exhibits must be disclosed in advance, at least five days before the relevant proceeding is scheduled to occur. Objections and cross-examination will be allowed during hearings, and testimony will be presented first by the party bearing the overall burden of proof (usually, the complainant), followed by the party opposing the party bearing the burden of proof. Any documents or other non-testimonial evidence must be made available to the opposition unless the ombudsman waives that requirement. Failure to meet this requirement or any procedural requirement can result in a conditional or default judgment against you, as noted in the rules.

Remember, right-to-know rules apply, so hearings are open to public observation; however, they are not open to public participation.

What Do We Still Not Know?

In its initial written comments prior to the rules being drafted, NHMA asked for clarification on several points, including: whether access to the office is available only to New Hampshire citizens, whether the office will follow-up to ensure compliance with orders, and how ongoing disputes after rulings ought to be resolved. In the initial proposed rulemaking, these were not addressed. The final draft may include items not included in the initial draft, so observers can wait and see.

What Might Change?

After releasing the initial draft, the RKO hosted a public comment hearing, where citizens could voice their concerns, ask questions, and otherwise provide feedback on the first round of proposed rules. Discussion that day revolved around two main topics.

First, Kehr and a representative of a local media organization discussed the process of requesting information from the Right-to-Know Ombudsman itself under the right-to-know law. Rule 103 in the proposed rules addresses this, but it is important to remember that it is for this office only; despite the apparent expertise the office has over records requests, Rule 103 should not be construed as a template for others. Possible changes to the rule that were brought up included clarification that requested records may be delivered in their original form if possible, not just as printed copies. For example, if a journalist requests an Excel spreadsheet used by the Ombudsman and it is not subject to an exemption, he would not need to print it and deliver in hard-copy form, he could email the document file.   

Additionally, regarding public access, the proposed rules say the ombudsman would have the right to bar entry of additional observers (possibly including media members) to respect limited space and fire codes in hearing rooms. Kehr said he would consider an alteration to recommend the ombudsman instead adjourn at-capacity hearings until a larger space could be found. Second, attendees voiced concerns for the costs of access. There was discussion of the filing fee itself, which is currently set by statute at $25 and able to be waived if a complainant shows it is “unable to pay.” Speakers at the public hearing argued that there is a variability between $25 and $0, and that there are circumstances outside of complete inability to pay in which the fee may be preventative. Because the fee amount is determined by statute, the waiver requirements are unlikely to change.

There is also a fee for obtaining records from the office. Draft rule 103.01(d) says the office will charge 25 cents per 8.5x11 page when delivering on records requests, a number Kehr says he reached by researching what other offices charge and considering the standards articulated by the Supreme Court. He said he was willing to consider other pricing ideas and sought feedback from commenters on whether a rule stating the something like following would make more sense: “actual cost of copying (including for paper and ink), excluding the cost of labor, not to exceed 25 cents” or similar. Media leaders were more comfortable with this, but it did not assuage concerns about unnecessary charges and the possibility of abuse. There would still be no ceiling for non-8.5x11 requests, and the rules would still not be clear what needs to be printed (and charged for) versus what can be delivered digitally for free. Similar to other records rules, media company representatives hoped Kehr would make it clear this is not supposed to be a model for agencies.

What's Next?

As of the September 6 hearing, Kehr intended to hold another public hearing (not legally required) on the updated final rules, which he expected to announce within a few months. Meanwhile, appeals continue, as citizens take advantage of the streamlined process.

Brandon Latham served as an NHMA Legal Services intern. He is a third-year law student at the University of New Hampshire and a master’s degree candidate at Vermont Law School.