Freedom Isn’t Free and Neither is Open Government in New Hampshire

The following blog post is one of several that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.

By David Saad | Right to Know New Hampshire


HB 178 Commission to Study Right to Know Law Complaint Procedure

HB 365 Recovery of Legal Fees in Right to Know Law Cases (Failed)

“The very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies; to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it.” – John F. Kennedy

While open government is not free, secrecy often costs more money than transparency. Secrecy can lead to decisions that are illegal and unethical, or yield a greater financial burden on the taxpayers. Often, secrecy is used to cover up short cuts, poor judgment, or other malfeasance on the part of our public officials.

All too often, discussion on the costs of open government focuses solely on the costs incurred by the government to comply with the Right-to-Know Law. The costs borne by individual citizens are trivialized or not considered at all. However, the costs to the citizens for their role in public scrutiny and public oversight to uncover waste, fraud, and other abuses should be recognized and appreciated.

If citizens are to function as a rational electorate, they must have adequate knowledge of what their government is doing. When the government is not forthcoming with all the information regarding a particular and many times controversial subject or decision, concerned citizens must assert their right to know. In New Hampshire, you, the informed and engaged citizen, have the sole burden to hold your government accountable when your right to know has been violated.

When citizens feel the public body is not in compliance with the Right-to-Know Law and their demands for compliance are not satisfied, they must pursue the matter in court. The burden and consequences incurred by concerned citizens who assert their right to know can be quite heavy. Financially, they may incur significant costs including attorney and court fees along with the loss of income due to taking time off work. Personally, they may suffer alienation, a maligned reputation, and veiled threats. These consequences are barriers to enforcement of the Right-to-Know Law.

Unlike the citizen who filed the lawsuit, public officials don’t bear the burden themselves. Public officials use taxpayer money to hire lawyers to fight on their behalf against the citizen’s right to know. They spread their financial risk across all the unwitting taxpayers within the community. The deep pockets of taxpayer funding and trivial personal financial risk are disincentives for public officials to resolve the citizen’s complaint outside of court.

HB178 and HB365 are two recent bills that would help reduce the burden on the citizen and level the playing field when seeking compliance with the Right-to-Know Law. HB178 establishes a commission to study the process to resolve Right-to-Know Law complaints with the goal of reducing the costs incurred by all parties. HB365 would have allowed citizens to recover legal fees when the public body has been found by the court to be in violation of the Right-to-Know Law. Unfortunately, it failed to pass by only 3 votes.

Regardless of how the Right-to-Know Law may change in the future, an ever vigilant citizenry will bear the burden of insuring our government is held accountable for their actions and inactions. To paraphrase Thomas Jefferson, “The tree of open and transparent government must be refreshed from time to time with the sweat and tears of an informed and engaged citizenry.” That’s the price of open government.

Sunlight is said to be the best of disinfectants. Sometimes that sunlight comes easy. Other times citizens are forced to keep fighting the darkness until it bleeds daylight.

During Sunshine Week, and every week, I thank those who find the secrecy repugnant, confront the darkness, and bear the heavy burden of fighting for our right to know the truth — even when our government prefers to hide that truth from us.

David Saad is president of Right to Know New Hampshire.

Above photo taken by Flickr user Patrick Gensel and used with permission under a CC 2.0 license.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here.

Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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