House Bill 481 authorizes a right-to-know ombudsman, whose office is administratively attached to the department of state, to assume the duties of the position on July 1, 2022. “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” (Access to Governmental Records and Meetings), also known as New Hampshire’s Right-to-Know Law.
An aggrieved person may either petition the superior court or file a complaint with the ombudsman. Petitioning the superior court forecloses the ability to file a complaint with the ombudsman. Filing a complaint with the ombudsman forecloses the ability to petition the superior court until: (1) the ombudsman issues a final ruling or (2) the deadline for such a ruling has passed.
The Aggrieved Party
An aggrieved person who chooses to file a complaint with the ombudsman must submit a signed, completed complaint with a $25 fee, which may be waived upon a finding of inability to pay. All complaints must attach, if applicable: (1) the request served and (2) the written response of the public agency or official. The complaint shall be deemed sufficient if it states facts constituting a violation.
The Public Body or Public Agency
Once the public body or public agency receives a complaint from the ombudsman, it shall have 20 calendar days to submit an acknowledgment and an answer to the complaint. The answer must include the applicable law and, if applicable, a justification for any refusal to or delay in producing the requested governmental records, access to meetings open to the public, or otherwise comply with the Right-to-Know Law. The ombudsman may reasonably extend the 20-day deadline for good cause.
In reviewing complaints, the ombudsman is authorized to: (1) compel timely delivery of governmental 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 when the ombudsman concludes that it is necessary and appropriate under the law; (2) compel interviews with the parties; (3) order attendance at hearings, if necessary, within a reasonable time; (4) issue findings in writing; (5) order a public body or public agency to disclose requested governmental records within a reasonable time, provide access to meetings open to the public, or otherwise comply with the Right-to-Know Law, subject to appeal; and (6) make any finding and order any other remedy to the same extent as provided by the court under RSA 91-A:8.
The ombudsman may draw negative inferences from a party’s failure to participate and comply with orders during the review process. The ombudsman shall determine whether there have been any violations and issue a ruling within 30 calendar days of the deadline for receipt of the parties’ submissions. This 30-day deadline may be extended to a reasonable timeframe for good cause. The ombudsman may also expedite resolution upon a showing of good cause. Rulings on expedited complaints shall be issued within ten business days, or sooner where necessary.
Appeal and Enforcement
Appealing Final Rulings of the Ombudsman
Any party may appeal to the superior court within 30 days of issuance of a final ruling. The ombudsman’s ruling must be: (1) attached to the notice of appeal, (2) admitted as a full exhibit by the superior court, (3) considered by the judge during deliberations, and (4) specifically addressed in the court’s written order. Citizen-initiated appeals shall have no filing fee or surcharge. If the public body or public agency, or its attorney, declines to accept service, then the public body or public agency must pay the sheriff’s service costs. The superior court may stay an ombudsman’s decision pending appeal. “On appeal, the superior court shall treat all factual findings of the ombudsman as prima facie lawful and reasonable, and shall not set them aside, absent errors of law, unless it is persuaded by a balance of probabilities on the evidence before it that the ombudsman’s decision is unreasonable.”
Enforcing Unappealed Final Rulings of the Ombudsman
If no party appeals, then, after the deadline has passed, the ombudsman must follow up with all parties to verify compliance. Parties may register unappealed final rulings in the superior court as judgments, which will be enforceable through contempt of court. If contempt of court is necessary, the public body or public agency must pay all costs and fees, including reasonable attorney fees.
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