Independent New Hampshire Journalism · Northfield, NH

Stop Filing FOIA Requests at City Hall

New Hampshire’s Right-to-Know Law and the federal Freedom of Information Act share a goal and almost nothing else. In the Granite State, citing the wrong one can leave you with nothing.

Somewhere in New Hampshire this week, a resident sat down to pry a record loose from a school board, a police department, or a select board, opened a search engine, and typed “how to file a FOIA request.” That instinct is half right and completely useless. The federal Freedom of Information Act is real and powerful, but it has no reach over a New Hampshire town, county, school district, or state agency. For those, the law is RSA 91-A, the state Right-to-Know Law.

The two statutes chase the same thing: a government that cannot hide its own business from the people who pay for it. Past that shared purpose, they barely resemble each other. They cover different governments. They run on different clocks. They send disputes to different forums. They sort the people who ask in different ways. Knowing which law you are holding is the difference between an answer in five business days and a polite brush-off that goes nowhere.

Different governments

FOIA reaches the federal executive branch, and only the federal executive branch. That covers a great deal: cabinet departments, the FBI and the EPA, government corporations like the Postal Service, even the Executive Office of the President. It does not cover Congress. It does not cover the federal courts. It does not cover the President’s closest White House advisers. And it stops cold at the state line. You cannot use FOIA to get a single page out of any state or local government in the country.

RSA 91-A runs the other direction. It binds every layer of New Hampshire government that touches public business: state agencies, every city and town, county bodies, school districts and school administrative units, and the boards, committees, and subcommittees beneath all of them. If you want the Northfield select board’s email or a Gilford police incident report, FOIA is the wrong key. RSA 91-A is the one that turns the lock.

Different clocks

This is where the wrong law costs you real time. Under RSA 91-A, if a record is not immediately available, the public body has five business days to do one of exactly three things: hand the record over, deny the request in writing and name the specific exemption, or acknowledge the request in writing with the time it reasonably needs to decide. Not a vague promise to be in touch. One of those three, in writing, on the clock. The statute even defines the clock: a business day runs from 8 a.m. to 5 p.m., Monday through Friday, minus national and state holidays.

That deadline is absolute. The New Hampshire Supreme Court held in ATV Watch v. DRED that a body cannot escape the five-day limit by pleading good intentions, a staff oversight, or that it produced the records within some “reasonable” time. The law does not grade on effort.

FOIA is slower by design. A federal agency gets twenty business days to make a “determination” on a request. A determination is not the documents. The D.C. Circuit has held it is only a statement of which records the agency will release and which exemptions it will claim; the actual production can take far longer, and routinely does. Five days versus twenty is the headline difference, but the deeper one is that New Hampshire’s clock demands a real answer while the federal clock demands only a plan to answer.

New Hampshire bodies still get the five-day rule wrong, sometimes in writing. When a pre-printed records request form tells the public an agency has ten business days to respond, the form is wrong by five. The statute is exact for a reason, and when a form and the law disagree, the law controls. The clock the law sets is the only one that counts.

Different roots

FOIA is a statute. Congress passed it in 1966 and can amend or gut it whenever it chooses, and over the years it has done both. New Hampshire’s access right sits higher than that. RSA 91-A is a statute too, enacted in 1967, but standing behind it is the state constitution. Part I, Article 8, amended by the voters in 1976, declares that government should be open and accountable and that the public’s right of access “shall not be unreasonably restricted.” In 2018, voters amended Article 8 again to give taxpayers standing to sue their own government.

New Hampshire is one of only a few states that wrote the right to know directly into its constitution. The practical effect is real: a future legislature can trim the statute around the edges, but it cannot quietly erase the constitutional command that the statute exists to carry out.

The press gets no special door

Here is a myth worth killing. A stubborn belief floats around New Hampshire that journalists enjoy some higher tier of access under the Right-to-Know Law. They do not. RSA 91-A draws no lines between the people who ask. A reporter, a retiree, a county commissioner, and an out-of-state data firm all stand in the same spot with the same right. There is no press lane, because there is no lane at all; everyone gets the front door.

FOIA does sort requesters, but for one purpose only: money. Federal law recognizes a “representative of the news media,” and a requester in that category pays only duplication costs, with the first hundred pages free, while a commercial requester pays for search, review, and copying on top. That status changes the invoice, not the entitlement. FOIA opens its records to “any person,” and you do not have to be a citizen, a journalist, or a lawyer to ask. So the federal news-media category is about what a request costs. Under RSA 91-A there is no such category to claim, for the simple reason that the access is already identical for all.

Different ways to fight a “no”

When a federal agency turns you down, FOIA makes you climb a ladder. First you file an administrative appeal inside the same agency. Only if that fails can you sue in U.S. District Court, where a fee-shifting provision can stick the government with your legal bills if you substantially prevail. The in-house appeal is not optional; skip it and a court can throw you out for failing to exhaust.

RSA 91-A skips the ladder. Any person aggrieved by a violation can petition the Superior Court directly for injunctive relief, with no in-house appeal required first, and the statute orders courts to give these cases high priority on the docket. If the body knew or should have known it was breaking the law, RSA 91-A:8 lets the court award attorney’s fees. A petitioner can even appear without a lawyer.

New Hampshire did build a cheaper off-ramp than a lawsuit. In 2022 the Legislature created a Right-to-Know Ombudsman: a $25 filing fee and an attorney empowered to rule on records disputes without a courtroom. That off-ramp is now closed. Lawmakers cut the office’s funding to $30,000 a year in 2025, the ombudsman left, and as of this spring the position remains vacant, with every case left unresolved at the cutoff dismissed. Until the seat is filled, the courtroom is the only enforcement with teeth.

Why this matters right now

The two laws are about to resemble each other in one uncomfortable way. FOIA has always been open to “any person,” resident or not, American or not. New Hampshire’s statute uses the older word “citizen,” but in practice the state has not screened requests by where you live or why you want the record. A 2026 bill aimed to change that. Legislation led by Sen. Bill Gannon, a Sandown Republican, moved to restrict Right-to-Know requests to people who live in New Hampshire or own property here, while carving out an exemption for news organizations.

The ACLU of New Hampshire and the New England First Amendment Coalition opposed the bill; the New Hampshire Municipal Association, buried under out-of-state data-mining requests, asked for it. SB 626 was tabled, and a related measure advanced narrowly out of a Senate panel before Senate President Sharon Carson said she could not back it as written. Watch what the fight is really about. For the first time, New Hampshire would sort the people who ask by who they are: residents in, outsiders out, with a special pass for the press. That is the FOIA move, imported into a law that has never worked that way.

The takeaway for anyone reaching for a record in this state is short and worth getting exactly right. At the federal building, file under FOIA. Everywhere else in New Hampshire, file under RSA 91-A. Cite the correct statute, hold them to the five-business-day clock, and do not ask for a press privilege the state law has never granted. Under RSA 91-A you already have the same right as everyone else. That equal footing is not a loophole or a courtesy. It is the entire point of the law, and it is worth defending before someone in Concord decides only the right kind of person should get to ask.

Fact check

Editor’s note. Every factual claim above was checked against primary sources — the statute text, the federal code, the state constitution, and the bill text — before publication; see the fact-check table. One item is marked ATTRIBUTED rather than VERIFIED: the current status of SB 626 is a moving target and rests on current news reporting. New Hampshire General Court (gc.nh.gov) statute links may need to be opened directly in a browser. Nothing here is legal advice. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.