HB1002 - Right to Know Request Fees

HB1002 recently passed the House by about a dozen votes and now heads to the Senate for deliberations. This Bill permits municipalities to establish a policy to charge up to $25 per hour for requests that take over 10 hours to fill.

The Preamble to the Right-to-Know Law states: 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.

Nashua has a well-documented problem with transparency. In the last 2 ½ years, the City has lost 5 cases in Superior Court and 3 cases in the Supreme Court. And in a case before the Court now, the City has acknowledged 8 violations claimed by the Petitioner; the case is still in the Court (226-2022-cv-00309). See Superior Court orders for 2026-2021-cv-00163, 226-2021-cv-00354; 226-2021-cv-00306, 226-2021-CV-00133,226-2023-cv-00141 and Supreme Court orders 2021-0253, 2022-0237, and 2022-0399.

This bill will not improve transparency in New Hampshire. How are we supposed to verifiably know as taxpayers if our records requests are over and above the 10 hour “free” limit when charges begin? In Nashua, where its all personal, will the accounting be trustworthy? Early on in my records requests, a City official claimed that my requests had cost the city over $100,000 in 6 weeks! When I requested the data to support this claim, no records existed. Unpolular people have the same constitutional rights as people who are liked.

While some citizens have won their record cases against the City, the cost and damage to their reputations was high. The courts are seriously under-resourced, faced with delays, backlogs and workforce shortages, so these matters are taking years to come through Superior Court. The inability of the court to be efficient to these priority hearings, has empowered an already overly empowered city. The Ombudsman’s Office is still establishing rules and has no history.

All Nashua court orders have yielded no improvement for records access for citizens, despite a Court order strongly suggesting that the [City] quickly get ‘in the business” of responding to Ms. Ortolano’s basic questions and requests for information” and “the Court strongly encourages the City to develop a uniform policy outlining the process for making a Right-to-Know request for City records and to make that policy publicly available on its website.” (226-2023-CV-00165)

How did this city become so obstinate to responding to public record access? Massive imbalances in power and political control over decades, echo chambers, and an elected board and leaders - emboldened to disparage and marginalize citizens in their attempts to redress their government.

My recent work has focused on the cost and the financing scheme for the Nashua Performing Arts Center (PAC). The City entered into a federal New Markets Tax Credit (NMTC) transaction to obtain $2.5 million in additional funding for a project that ended up costing almost $40 Million. My interest was piqued two years ago when the city refused to legally notice public meetings and provide records on the PAC. I was being stonewalled and filed a lawsuit in August 2022. This federal program is designed for for-profit corporations, not municipalities, to provide tax credit benefits to construct facilities for the greater good of the public living in low-income areas.

Unable to get any City leaders to answer basic questions, I put in an August 2022 RTK request to gather all NMTC emails to help me understand how this financial scheme worked. The City is subverting any cooperative efforts to work together and they will not engage in productive communications.

Initially, the city stated there were 1200 emails they would “batch out” and they would keep me updated on the completion date. After six months and no updates, I emailed the city for the completion date. The City responded that they had discovered another 1800 emails that would take approximately 4 years to deliver. The City offered no record description to reduce the burden and they did not deny the request as unreasonable. Imagine the cost of these records under HB1002.

Frustrated and believing that this was an unreasonable delay of records, I filed a short concise expedited petition. Exasperatingly, the Court consolidated it, without a hearing, into the case that is taking two years to be heard. The court decision destroyed my right to reasonably access the records which I should have rightfully been afforded under RSA 91-A to help me understand the fraud and deceit, misuse of public money and falsification of records that took place on this project. How will the Courts mediate this costs issue when requesters believe they are being charged unlawful fees?

Unsurprisingly, the city is heavily redacting these emails. I filed a Petition claiming a crime/fraud was perpetrated, requesting the Court review the emails to determine if the redactions are legal. That too was rolled into the Petition that's taking two years to process. My faith in the adjudication process has wavered.

Nashua's Performing Arts Center was not the proper application of this NMTC Federal program. The city formed 3 shell companies that shifted $21 Million of public bond money ultimately into a fully private Corporation and shut down all record access. 

The emails, despite the slogging production, have been enormously valuable. They established the timeframe for all the hidden transactions and revealed that the city, before closing the Federal money deal, formed a for-profit company without disclosing this candidly and properly to the Board of Alderman. The city did not disclose:

·      $21 Million of public money would be given to a for-profit Corporation;

·      $7 Million (out of the $21 Million) of the Bond proceeds would be converted into an interest-bearing loan for a private Corporation;

·      Interest would be paid back to Nashua Taxpayers.

·      $1.5 Million in donations would be given to the private Corporation;

·      The private donations are unverifiable to the Citizens even though the bond resolution created a covenant mandating the donations must be in hand before the bonds can be sold;

·      2 public nonprofit corporations formed by the City were created under City management and control but the City deceptively claimed no responsibility even though they Federally registered both corporations under the City’s Employment Identification Number (EIN);

·      Mascoma Bank entered in to a $9.55 Million loan agreement with the for-profit Corporation which required the City of Nashua to guarantee payment on all loans and ultimately pay the interest on the loan.

·      Nashua taxpayers are paying all insurance on the PAC as the owner of the building and not under a renters policy.

The emails documented more public fund mismanagement:

·      The City had to fund an architect to design the PAC and then purchase real estate for the facility before the bonds were sold. This required the city to set up an account funded with other “IOU” money that was to be reimbursed once the bonds were sold. The City did not properly administer the bond money and did not reimbursed the fund for the $2,000,000 cost for the property.

·      The $7.1 Million loan was not put on the City’s books even though the City was receiving interest payments which were recorded on the books. A citizen’s persistent digging for five months found this accounting fraud and, after 29 months, the City put the loan on the Books. Imagine the costs to this senior citizen, who had to request records over 15 times on the same topic if HB1002 passes? Not once, did the City offer to work with her, meet with her or do anything to reduce the burden, if such a burden even existed.

·      The NMTC emails revealed that the City CFO, Legal office and Economic Director were meeting to discuss this loan and appear to understand the obligation to record the loan. A financial office worker making secret phone calls to me stated that the financial office did not know about this loan. That appears questionable. Where does the truth lie?

·      The three shell corporations formed for the NMTC transaction cannot pay:

o   their operating costs

o   fees associated with this seven-year federal program – and-

o   the interest payment on the loans

To deal with the fact that the Corporations have no revenue sources except by way of the City, the city is now renting the building taxpayers bought, paying approximately $500,000 a year to cover the above costs.

All this was learned through records requests and a lawsuit that has currently been through 3 days of Trial and will conclude in April 2024. It is clear from three days of the Trial that this lawsuit was necessary. Additionally, the lawsuit has now prevented the City from engaging in future NMTC transactions – a significant victory.

What would all this citizen work cost me under HB1002? On January 17, 2024, I asked the City to estimate the cost of batching these records. Several days after I made the request, I received the next batch of emails and immediately wrote back and requested an estimate for the time to produce those records.  It has been 18 days and no one has responded. How much deliberation does this request require? I am interested because fees may be right around the corner.

The Honorable Chair of the Judiciary Committee, Mr. Lynn, knows better when he tells the legislative body that citizens can get their costs back in Court if it is proven that the municipality was unreasonable. The Judicial system is seriously under-resourced and overburdened. Cities have deep pockets funded with taxpayer money to fight to their last dying breath. The Court awarded $63K in Attorney’s fees for my 2020 RTK case for Assessing Records (2020-00133). It is now under appeal with the Supreme Court. If I prevail, it will have taken over 5 years to get the money back, without interest. Frustrating and stonewalling requesters is the name of the game in Nashua and this bill will only enable some municipalities to continue with their unsavory tactics with impunity.

Please protect our First Amendment rights and vote ‘No’ on HB1002