This responds to your recent letter regarding my request under RSA Chapter 91-A, the State's Right-to-Know Law, regarding records relating to Governor Hassan's out-of-state travel. Your letter raises several troubling issues that call into further doubt the Hassan Administration's commitment to transparency and compliance with the law.
You state that it has been the "long-standing position of the New Hampshire Department of Justice that RSA 91-A does not apply to the Governor's office." I am asking that you immediately provide all written guidance produced by the Attorney General to that effect. On its face, this position appears to be completely inconsistent with the very clear legislative intent and requirements under New Hampshire's Right-to-Know Law, as well as Supreme Court precedent. The preamble to that statute states:
Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions, and records of all public bodies, and their accountability to the people.
My request was made pursuant to RSA 91-A:4, I, which provides:
Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy or make memoranda or abstracts of the records or minutes so inspected expect as otherwise prohibited by statute or RSA 91-A:5.
RSA 91-A:4, I.
The definition of "public agency" is:
"Public agency" means any agency, authority, department, or office of the state or any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision."
RSA 91-A:1-a, V.
The definition of "governmental records" is:
"Governmental records," means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.
RSA 91-A:1-a, III.
The governor's office is clearly an "office of the state," and the records I have requested are clearly "governmental records" within the definitions of RSA 91-A. Even if there were any doubt, the New Hampshire Supreme Court has repeatedly stated that the statute is to be construed broadly: "Our ultimate goal in construing the Right-to-Know Law is to further the statutory and constitutional objectives of increasing public access to all public documents and governmental proceedings, and to "provide the utmost information to the public about what its government is up to," Prof'l Firefighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 705 (2010)(quoting Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 555 (2002)).
As such, the Supreme Court long ago concluded that, "all State executive branch agencies and departments were meant to be and are included within the provisions of RSA ch. 91-A." Lodge v. Knowlton, 118 N.H. 574 (1978). The Attorney General's Memorandum on the Right-to-Know law, available at the Department of Justice's website, states the same thing. Id. at pp. 3-4 ("The Right-to-Know law establishes a person's right of access to meetings of public bodies and to the records of public bodies and public agencies..."All State executive branch departments and agencies" are subject to records requests). Over the years, the Supreme Court has determined that RSA 91-A reaches various quasi-governmental agencies, including the Local Government Center and the New Hampshire Housing Finance Authority. Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540 (1997). In the latter decision, the Court noted that the Housing Authority was performing "public and essential governmental functions of the state." Id.
It is inconceivable that the Housing Authority meets this test and the office of the governor does not. In fact, my records request is directed to the most essential of government functions: the discharge of executive authority under the State's Constitution. As a citizen, the governor is, of course, free to leave the state at any time for personal and political reasons, in addition to official business. However, as governor, her absence from the State - regardless of the reason - has significant consequences that are clearly matters for public concern. Specifically, Part II, Article 49 of the Constitution provides that, "[i]n the event of the death, resignation, removal from office, failure to qualify, physical or mental incapacity, absence from the state, or other incapacity of the governor, the president of the senate, for the time being, shall act as governor until the vacancy is filled or the incapacity is removed."
New Hampshire citizens are entitled to know when executive authority is transferred to the president of the senate under this provision of the New Hampshire Constitution. Your letter is plainly not fully responsive. Therefore, I renew my request, under both Part I, Article 8 and RSA 91-A:4, I, for all governmental records within the possession, custody or control of the office of governor, a public agency, relating to the absence of the governor from the state for any reason and at any time during January 2015. To the extent you withhold any responsive documents, please prepare an index with detailed descriptions.
The Hassan Administration's commitment to transparency has been troubling. It cannot and should not be true that local boards of selectmen are subject to the Right-to-Know Law but the only state official elected by all New Hampshire citizens, the governor, is not. Moreover, the recent invocation of "Executive Privilege" - made infamous during a Watergate-era attempt to withhold materials subpoenaed by a special prosecutor, see United States v. Nixon, 418 U.S. 683 (1974) - in response to a recent Concord Monitor Right-to-Know request suggests an inclination to stonewall rather than be forthright with Granite Staters. I hope that practice will end, and that the records I have requested will be promptly produced.
New Hampshire Republican State Committee