HB365: relative to awarding attorney's fees under the right-to-know law.

HB 365-FN - AS INTRODUCED

2017 SESSION

17-0503

01/03

HOUSE BILL 365-FN

AN ACT relative to awarding attorney's fees under the right-to-know law.

SPONSORS: Rep. Hynes, Hills. 21; Rep. Brown, Graf. 16; Rep. Sylvia, Belk. 6; Rep. Fisher, Belk. 9; Rep. J. Edwards, Rock. 4; Rep. Stone, Rock. 1; Rep. Guthrie, Rock. 13; Rep. Comeau, Carr. 5; Sen. Avard, Dist 12

COMMITTEE: Judiciary

ANALYSIS

This bill clarifies the payment of attorney's fees by public bodies or agencies under the right-to-know law.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

17-0503

01/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seventeen

AN ACT relative to awarding attorney's fees under the right-to-know law.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Right-to-Know; Remedies; Attorney's Fees. Amend RSA 91-A:8, I to read as follows:

I. If any public body or public agency or officer, employee, or other official thereof, violates any provisions of this chapter, such public body or public agency shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter, provided that the court finds that such lawsuit was necessary in order to enforce compliance with the provisions of this chapter or to address a purposeful violation of this chapter. Fees shall not be awarded [unless 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 or] if the parties, by agreement, provide that no such fees shall be paid.

2 Effective Date. This act shall take effect January 1, 2018.

LBAO 17-0503

1/4/17

HB 365-FN- FISCAL NOTE

as introduced

AN ACT relative to awarding attorney's fees under the right-to-know law.

FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None

Estimated Increase / (Decrease)

STATE:

FY 2018

FY 2019

FY 2020

FY 2021

Appropriation

$0

$0

$0

$0

Revenue

$0

$0

$0

$0

Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

[ X ] General [ ] Education [ ] Highway [ ] Other

COUNTY:

Revenue

$0

$0

$0

$0

Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

LOCAL:

Revenue

$0

$0

$0

$0

Expenditures

Indeterminable Increase

Indetermianble Increase

Indeterminable Increase

Indeterminable Increase

METHODOLOGY:

This bill requires the payment of attorney's fees to any person who brings a lawsuit to enforce compliance with the Right-to-Know law; unless the interested parties agree that no fees shall be paid. Under current law, fees are not awarded unless the court finds the person or body violating the law knew or should have known it was a violation.

The Department of Justice represents any state agency, board, or commission that is sued for an alleged violation of the Right-to-Know law. The Department 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. The Department anticipates that Right-to-Know lawsuits will increase under this bill but cannot estimate the fiscal impact. The funds to pay attorney's fees in any such litigation against the State would come from the general fund.

The New Hampshire Municipal Association states this bill would cause an increase in local expenditures for municipalities as a result of removing the "knew or should have known" clause from statute relative to awarding attorney fees. The Association cannot estimate the potential fiscal impact on municipalities resulting from this bill but expects the number of awards that will be paid out to increase.

The New Hampshire Association of Counties states this bill could result in an indeterminable fiscal impact to counties.

AGENCIES CONTACTED:

Department of Justice, New Hampshire Association of Counties, and New Hampshire Municipal Association