The First Amendment ensures freedom of the press, but it doesn’t explain just what that freedom includes. It does not say anything about the “right to know,” although several Supreme Court cases, as well as the Freedom of Information Act, uphold the public right of access to government information.
The U.S. Constitution establishes a floor, not a ceiling. A state can provide its citizens with more rights, and New Hampshire has done just that. The state constitution proclaims that the government is accountable to the public and, therefore, “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
This constitutional coin has two sides. One side makes the government “accountable,” and the other gives us the right to know what the government is doing. In 1967, the legislature enacted the “Right to Know” law, which puts meat on the constitutional bones by declaring that “openness in the conduct of public business is essential to a democratic society.” The law explains just how the public can go about attending government meetings and seeing records.
Recent events in this country remind us that government officials don’t always love having the public know what they’re up to. They stonewall, knowing that ordinary citizens rarely have the time, inclination, or resources to go after the information. So it is left to the press, which despite recent claims is not the “enemy of the people,” to do so on the public’s behalf.
The First Amendment says that the government shall not “abridge” freedom of speech or of the press, but again the words of the New Hampshire constitution are stronger. “Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved.”
Two cases, one nearly 30 years ago and one last year, demonstrate that public openness is an important constitutional value in New Hampshire. In 1990, when former state judge Charles Douglas was running for Congress, a Keene Sentinel reporter went to the Merrimack County courthouse to look at the court records of his 1983 divorce. The clerk explained that most of the file was impounded, so the newspaper filed a motion with the court. Mr. Douglas opposed the motion, the judge agreed with him, and the newspaper appealed.
The New Hampshire Supreme Court ruled in favor of access to the records. First, the court said that the passage of several years didn’t matter. The public, in this case meaning the press, may go to court anytime to enforce the right to gather news from public records.
Mr. Douglas argued that the Sentinel had “political” motives. The Court gave that theory the back of its judicial hand, saying that motivations are irrelevant, adding that it’s not for the courts to say what should or should not interest the public.
Then, turning to the question of personal privacy, the Court ruled that all court records are presumptively public, and it isn’t up to the access-seeker to prove anything. Rather the burden is on the person opposing access to demonstrate that he or she has an interest that is “sufficiently compelling” to override the public’s right to know what is going on, or what went on, in the courts.
In a case decided last year, “John Doe” argued that once his Grafton County felony arrest and acquittal were legally “annulled,” creating the legal fiction that they never happened, the public had no right to see the court papers. The state Supreme Court disagreed, stressing how important it is for the public to know “what its’ government is up to.” Thus, the records of the annulled proceeding are “not categorically exempt from public inspection.”
These constitutional and statutory rights are not absolute. In certain circumstances, an “overriding” interest may tip the scales the other way. For the most part, however, New Hampshire law strongly supports the concept that the books of government must be open, and its citizens have the right to know what is in them. These decisions are not designed to denigrate privacy but rather to elevate public knowledge of governmental activity. If the cost of democracy is hurt feelings or damage to political careers, the New Hampshire Constitution says it’s a price worth paying.