Legal Fees for RTK Cases May be Coming

NH’s House Judiciary Committee has voted 10-8 in favor of  recommending a bill put forward by Right to Know NH that would lower the threshold for awarding legal fees to plaintiffs who must go to court in order to obtain public information.

Below you will find the majority report on HB 365 written by Judiciary Committee member, Rep. Dan Hynes.  It is followed by the minority report written by Rep. Sandra Keans.

 

This bill amends RSA 91-A:8 to mandate attorney’s fees whenever a petitioner is successful in a 91-A lawsuit at superior court. Under the present law, attorney’s fees can only be awarded if “the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of this chapter.” As determined in the methodology related in the bill’s fiscal note: “The Department of Justice reports that during the past two years, 10 lawsuits have been filed under RSA 91-A. The state was ordered to pay attorney’s fees in one matter during the last two years, in the amount of $9,348. Other litigants unsuccessfully sought attorneys’ fees but the court denied the fees because it could not conclude the state knew or should have known there was a violation of the statute.” Since attorney’s fees have been awarded only once (10% of the time), there is little incentive for the government to provide required information under the right to know law. In many circumstances it would appear cost effective for the government agency to deny the request and hope the person does not pursue litigation. Even if the person is ultimately successful, the government agency will not have to make that person whole by paying their attorney’s fees. This bill would encourage the government to provide information under the right to know law. If the government does not properly respond to a right to know request, there is additional accountability. Presumably, more lawyers would take right to know cases and more cases would be filed. The present law already has adequate protection for the government entities. Under RSA 91-A:8, II: “The court may award attorney’s fees to a public body or public agency or employee or member thereof, for having to defend against a lawsuit under the provisions of this chapter, when the court finds that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive.” If passed, this law would likely only allow fees to the petitioner where they hire an attorney, not where they proceed pro se. Under Rule 3.1 of the Rules of Professional Conduct for lawyers: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Presumably, there should not be any increase in frivolous litigation as the current laws already effectively prohibit such conduct. It would not be appropriate to allow either party to recover attorney’s fees if they are successful in litigation. This would have the effect of even fewer litigants pursuing complaints if they are likely to have to pay thousands of dollars in the event their lawsuit is not successful.

The minority report on the bill from the committee was written by Rep. Sandra Keans:

The minority of the committee believes this bill is unnecessary and may in fact have unintended consequences. Since the passage of the original right-to-know law there have been changes to strengthen it almost every year, either by the legislature or the court. Plaintiffs currently can make a showing to the court that they deserve reimbursements of their costs if they prevail. Under this legislation, if they win, they would always be reimbursed. That is not true for your local community. That plaintiff may be just a citizen or a huge corporation. Your community would need to appropriate money to cover. Also, through the years, as word of suits become published, more and more communities are training employees to recognize valid requests in response.

 

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