By Damien Fisher
Assistant Local News Editor Paul Cuno-Booth at the Keene Sentinel wasn’t expecting a quick turnaround on the Right to Know request he filed with the New Hampshire State Police in January.
“I already expected it to be a pretty involved request,” he said.
Instead of getting a full or partial response, or even a denial, however, Cuno-Booth was told the State Police were simply not processing his request at all. Because of the COVID-19 crisis, some state agencies are putting Right to Know requests on hold.
Cuno-Booth isn’t sure if this is the new normal for state and local agencies. He tries to regularly put out Right to Know requests with different agencies for stories he is working on. Aside from the State Police request, he’s had at least one request with the Keene Police Department ignored since the start of the COVID-19 emergency orders in March.
It’s not only Right to Know requests that are becoming an issue, though. Cuno-Booth knows many state and local agencies are stretched thin because of the crisis and reporters rely on the Joint Information Center for updates and information on the COVID-19 response. Cuno-Booth said the JIC is staffed by state employees from several different agencies and the responses for detailed information can sometimes be slow in coming. Which can be tough when reporters are often re-directed by non-state agencies, such as some hospitals for example, to the JIC to get any Covid-related information.
“I’m sympathetic to all this and in terms of people we get responses back from,” Cuno-Booth said.
David Saad, president of Right to Know NH– a nonpartisan nonprofit that works to improve access to New Hampshire state, county, and local governments–said journalists and other members of the public have been contacting him since the start of the emergency to let him know the state is not fulfilling requests, and further, that officials are not going to give people a timeframe for when they plan to fulfill the requests. One such response simply stated that no requests will be filled during the crisis. Saad said these agencies are ignoring state law.
“They should be providing you with a response which states the time they will need to respond,” Saad said. “Indefinite postponement is not an acceptable answer.”
Like Cuno-Booth, Saad understands many agencies are running “all hands on deck” during the crisis, but they have to be more forthcoming with information.
“Again, given the state of emergency, the timeframe may be longer than usual, but it should be reasonable given the circumstances,” Saad said.
Kate Giaquinto, director of communications for the New Hampshire Department of Justice, said some agencies are adjusting their timeframes to respond to Right to Know requests, as is allowed under state law given the current state of emergency. Because many agencies are being pulled from normal duties to help with the response, like State Police, some functions like Right to Know requests are getting put on the back burner.
“Agencies aiding or responsible for the statewide emergency response, for example, may need to delay responding to right-to-know requests should fulfilling the request within a normal time frame impact the agency’s ability to provide emergency response support,” Giaquinto.
Gregory Sullivan, a Massachusetts attorney specializing in First Amendment cases and who has represented the New Hampshire Union Leader, said a lot of New Hampshire’s emergency order decisions to limit Right to Know requests have yet to be tested in court. While the current situation may not hold up if challenged, there is also the fact that a lot of city halls, town halls, and local agencies are operating with skeleton crews and may not be able to handle the typical Right to Know volume, Sullivan said.
“As I’ve found myself saying a lot lately, these are unprecedented times,” Sullivan said.
Justin Silverman, the executive director said there is real worry among journalists that some state agencies will use the crisis to create a new, less transparent normal.
“Our concern is that public agencies are going to use the pandemic as an excuse to be more secretive than they actually were,” Silverman said,
The fear is that the slow, delayed, and or denied requests will set expectations for transparent and open access to government information.
“There’s a lot of opportunity there for the public to be shut out and secrecy to be increased across the board,” Silverman said.
Sullivan said New Hampshire offers limited relief when a state or local agency denies a Right to Know request. There is no ombudsman or agency to appeal the decision to, according to Sullivan. Instead, people are forced to file a case in a New Hampshire Superior Court. That avenue can be time consuming and expensive.
As a result of the pull back on transparency, Silverman fears that reporters will get used to getting less information, and regular citizens will get used to being shut out from their government, Silverman said. Joel Simon, executive director with the Committee to Protect Journalists, said in a recent interview with Shorenstein fellow Ann Cooper that governments around the world are using the COVID-19 pull back press freedoms.
“I’ve started to call the wave of global repression we are experiencing right now the COVID Crackdown,” Simon said in the interview. “My greatest fear is that it will become a permanent feature of the global reality that will stay with us long after the painful memory of this pandemic has faded.”
The crackdown is happening in countries with authoritarian governments, like China and Iran, and in democratic countries like India and South African Simon said. It’s part of an effort to control the flow of information.
“Governments that seek to manage and control information are opportunistic — they take advantage of the prevailing rhetorical and ideological frameworks to justify sweeping crackdowns on dissent. This was certainly the case with the war on terror,” Simon said.
Closer to home there have not been the violence directed at journalists in New England as there has been in other countries.
Besides the Right to Know requests getting slow-walked in New Hampshire, Silverman said regular government meetings are becoming less accessible because of the crisis. The loosening up of open meeting requirements, coupled with the potential for technology issues, and the usual high learning curve for local government officials make meetings harder to attend, even virtually.
Sullivan sees reporters being able to push back once government and society starts to return to normal. He doesn’t think journalists and citizens will put up without free access to information for long.
“I’m certainly not ready to accept that,” Sullivan said.
Silverman wants to see journalists and people outside newsrooms keep an eye on local governments.
“People need to be staying on top of government activity in any way they can,” Silverman said.
That means finding out when government bodies are meeting, what they are meeting about, and what they will vote on, Silverman said.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.