By Rhianwen Watkins, Granite State News Collaborative

The Laconia Daily Sun is continuing to press its right-to-know case against the Laconia School Board, contending the state right-to-know ombudsman’s office wrongly ruled in favor of the school board, and pushing for reconsideration of the ruling.

The news outlet’s attorney, Michael Lewis of Rath Young Pignatelli, a Concord-based law firm, contends the ombudsman based his ruling solely on the school board's arguments because he lost the Laconia Sun’s documentation during an office move. In addition, Lewis contends, the ombudsman failed to follow current right-to-know case law.

The case began in May of last year when the school board rejected the news outlet’s request to obtain two documents. The Sun argued the documents were wrongfully denied and filed a complaint with the right-to-know ombudsman’s office.

The Legislature established the ombudsman’s office in 2022 and it opened in January 2023 as a quasi-judicial government agency as an alternative to filing a lawsuit in court when an individual is unsatisfied with a public body’s response to a right-to-know request under RSA 91-A. Before the office was established, the only method of appeal was to file a lawsuit in superior court, a time-consuming, expensive process. Currently, if people are unhappy with the ombudsman’s ruling on whether a right-to-know complaint is justified, they can still appeal it in superior court.

The office consists of exactly one person, Thomas Kehr, the right-to-know ombudsman; his job is to decide whether government records must be disclosed, whether specific meetings must be open to the public, and whether penalties should be imposed for violations.

After the Laconia Sun filed its right-to-know complaint with the ombudsman, the school board produced one of the two requested documents, saying it had been withheld because of an administrative error, according to Julie Hirshan Hart, editor of the Sun.

“It's inconsistent information because the denial-of-the-request email that we received said that, on the advice of counsel, they were not giving us the files because they were personnel files,” Hirshan Hart said.

Eventually, a hearing with the ombudsman was scheduled for April to hear both sides’ testimony. But before the hearing, the school board requested a meeting with the Laconia Sun and its lawyer at which the board provided the second piece of documentation the newspaper had requested. 

“They had given us both of the documents that we had asked for, but in order to obtain those documents it had been at significant legal costs,” Hirshan Hart said. “Since the issue of the attorney’s fees was still outstanding, we filed to keep the hearing with the ombudsman” to determine whether the school board should be required to cover the Laconia Sun’s legal fees.”

The newspaper argued that the school board should have to pay the legal fees because it wrongfully denied access to public records; had that not occurred, the newspaper would not have filed a complaint to the ombudsman.

Neither the Laconia School Board chair, Jennifer Anderson, nor the board’s attorney, Paul Fitzgerald, responded to a reporter’s inquiries about the case.

At the hearing, the ombudsman gave both parties a specific period of time to file written arguments over the issue of legal fees.

In June, the ombudsman ruled in favor of the school board. 

However, five days after the ruling, the ombudsman contacted Lewis, the newspaper’s attorney, and said he had thought the Laconia Sun had not filed its argument, but realized it had actually been lost during his office move and therefore he did not consider it. Lewis filed a motion for reconsideration on June 28 so the Sun’s arguments could be taken into account. The new ruling is yet to be made.

Court decision not considered

In 2022, a case titled Colquhoun vs. City of Nashua received statewide attention. The state Supreme Court ruled that if the city knew, or should have known, its blanket denial of access to city government emails violated the right-to-know law, then it should be liable for the resulting legal fees.

Lewis said the ombudsman’s ruling failed to cite that Supreme Court decision. Instead, Lewis wrote in the motion to reconsider that the ombudsman’s decision “relies on case law from between 1976 and 2010 while failing to cite or acknowledge very recent decisions from the New Hampshire Supreme Court, including the decision Colquhoun v. City of Nashua, 175 N.H. 474 (2022).” 

“I think it's a matter of important public accountability that a body designed to facilitate accountability — the right-to-know ombudsman, a specialist in the area — doesn't appear aware of recent New Hampshire Supreme Court case law that is binding on the state interpreting RSA 91-A, which is his specific purview,” Lewis said.

RSA 91-A is New Hampshire’s right-to-know law.

“The case was clear,” said Gregory V. Sullivan, a lawyer with Malloy and Sullivan, who has argued many right-to-know cases and is president of the New England First Amendment Coalition. 

“I'm in complete disagreement with the ombudsman's decision to deny attorney’s fees and costs in this case,” Sullivan said. “The standard is whether the governmental agency knew or should have known that the documents should be provided. The school district claimed that they weren't aware of the current state of the law until after the complaint was filed with the ombudsman's office, and then they complied with the request.”

“They either knew or certainly should have known that the documents should have been provided, and therefore attorney’s fees and costs, I think, were pretty much mandatory,” Sullivan said.

Asked why he did not cite the Colquhoun Supreme Court case, the ombudsman, Thomas Kehr, said he could not discuss the Laconia case while it is still open, but said he is “familiar with the case law that involves RSA 91-A.”

‘I belated found the pleadings’

Lewis, in his motion to reconsider, wrote, “The RKO’s [right-to-know ombudsman’s] communications indicate that the RKO did not review Laconia Daily Sun’s submissions before issuing its Decision because of the RKO’s dysfunction.” 

The document includes an email exchange between Lewis and Kehr in which Kehr states, “Due to administrative oversight, I belated [sic] found the pleadings, after the issuance of the order.”

In an interview, Kehr elaborated: “I issued a decision in the midst of taking incoming cases, deciding cases and also writing decisions for various cases, while my office was in the process of a move. Some of the paperwork that was filed in my office, through administrative oversight on my part, did not get docketed,” Kehr explained. “I assumed that there was no material when in fact there was. I issued the order, and thereafter, I found the materials that had been overlooked. At that point, I notified the party of that, and now we're reconsidering my decision. It’s pretty simple.”

Sullivan thinks the mistake was the result of a bigger issue.

“It's pretty clear to me that this is not a one-man job,” Sullivan said, noting that Kehr is the only employee in the ombudsman’s office and has no staff. “To me, that is absurd. That's on the Legislature that created the position but hasn't funded it and staffed it in order to meet the goal of efficiency.”

Kehr acknowledged his intense workload. 

In addition to creating the rules for his office and updating the website in a way that is easy to find those rules, Kehr also has 22 cases currently open and 36 closed since Jan. 27.

In total, Kehr has received 209 inquiries, of which about 30 involve right-to-know requests.

 “Trying to do this as one person is not the easiest thing in the world,” Kehr said.

The ombudsman law has an expiration date of July 2025. In other words, the office is in a trial run, to see if it serves the intended purpose.

“There's going to need to be legislation if indeed that office is going to continue to exist,” said Sullivan. “It should be an agency, not one person doing all the work. It's just too much.”

What happens next?

The Laconia Sun is awaiting the ombudsman’s decision on the motion to reconsider the legal fees issue,and hoping for a favorable ruling based on current law.

Under RSA 91-A:7-b, the ombudsman must make his final decision within 30 days, but has the ability to extend this period if there is good cause.

According to Kehr, the school board also has the right to respond to the motion to reconsider after it is sent to the ombudsman. Neither the school board nor its attorney responded to multiple inquiries on whether it will weigh in on the motion to reconsider.

If the ombudsman upholds his original denial of legal fees, the Laconia Sun could appeal to Superior Court.

 “The parties that really have a need for (RSA 91-A) are newspapers,” said Lewis, the Sun’s attorney. “And freedom of press is explicitly recognized under Part One, Article 22 of the New Hampshire Constitution as inviolable because it's connected to what our constitution says is the security of a free people.

“The people need the press to be able to inquire through these important rules and laws that ensure transparency and access for the purpose of accountability,” Lewis said. “That's how we get better as a society.”

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.

Editor’s note, The Laconia Daily Sun is a partner in the Granite State News Collaborative. The Collaborative reporting and editing team maintained editorial independence in the reporting of this story.