New Hampshire’s Right-to-Know law can fulfill its purpose of promoting government transparency and accountability only if its provisions cannot be ignored with impunity. That is the import of a New Hampshire Supreme Court decision last month declaring that the Valley News is entitled to recover from the town of Hanover reasonable attorney’s fees and costs that the paper incurred during its successful quest to pry loose arrest records from the town’s police department.
We are all too aware that this argument may appear self-serving, and we stipulate that to a certain extent it is. All over the country, small local news organizations like this one find themselves in straitened financial circumstances in a rapidly evolving media environment that has disrupted traditional business models. So, yes, the Valley News is relieved to have its legal expenses covered in this instance, but that is not the main point.
By way of background, the Valley News sought arrest records pertaining to two Dartmouth students who were charged with criminal trespass in connection with a peaceful protest they staged on the lawn outside of the college president’s office in October 2023. In particular, the paper sought to clarify what role Dartmouth administrators played in the incident.
The police department issued a blanket denial of the paper’s Right-to-Know request, even though arrest records are government records subject to disclosure under the relevant state statute. The town’s legal counsel argued that releasing them would interfere with law enforcement proceedings, could impact the defendants’ right to a fair trial and invade their privacy.
The town, however, never explained how the disclosure might affect law enforcement proceedings, since the students had already been arrested and the only proceeding then pending was their upcoming trial; nor did it explain how releasing the records might adversely impact their right to a fair trial before a judge in Lebanon District Court. And the defendants, through their counsel, agreed to the release of the records with their personal information redacted. We cite these details only to suggest that in our opinion the reasons for denial were implausible, if not far-fetched.
After further back and forth between the town’s legal counsel and the paper’s attorney, the town went to Grafton Superior Court seeking a declaratory judgment on whether it was required to disclose the records, arguing that it was an unsettled area of the law. Eventually, the court ruled that the arrest records were indeed public and had to be released, and that the Valley News was entitled to recover its attorney’s fees and legal costs. Asked by the town to reconsider, the court affirmed that the records had to be made public but reversed the ruling that awarded attorney’s fees.
When the issue of attorney’s fees eventually reached the state Supreme Court, the justices determined that because legal action was necessary to enforce compliance with the Right-to-Know law and because Hanover knew or should have known that its blanket denial violated the law, the Valley News was entitled to recover reasonable attorney’s fees and costs. The final amount has not been determined and must be approved by the court.
In the meantime, after nine months of stonewalling, Hanover finally released the records, and they pretty clearly showed that Dartmouth administrators’ fingerprints were all over the arrests; it might even be said that they orchestrated the police response.
“The police arrest reports provide a ticktock of the hours preceding and following the arrests,” the Valley News reported at the time. “The reports show that police were acting on behalf of college officials who wanted the students cleared from a tent they had pitched in front of the college’s administration building as part of a student protest . . .”
This probably came as no surprise to the many people who believe town government in Hanover is merely a municipal adjunct of the college powers-that-be, but it was clearly in the public interest to have the information published.
And arrest records are not just any record. The authority to arrest, detain and prosecute is the most powerful that society delegates to government. As such, it must be subject to heightened press and public scrutiny to ensure that it is not abused, and to hold government accountable when it is.
Litigation to obtain public records can be a relatively expensive proposition for small news operations, a circumstance that can embolden government entities to withhold documents that are subject to disclosure under the law. When that occurs, the ability of the press and the public to subject government actions to such scrutiny is bound to suffer.
And, as with any law, if there is no penalty for flouting it, those subject to it have little incentive to obey it. That’s why the outcome of this case was significant.