Independent New Hampshire Journalism · Northfield, NH

The Right to Know Is Not a Favor

Consent means nothing when the governed cannot see what their agents are doing, and New Hampshire wrote that principle into its constitution fifty years ago.

When a citizen asks a New Hampshire agency for a record and the agency says no, or says nothing at all, somebody owes somebody a justification. Which direction that debt runs decides everything practical that follows: who carries the burden of proof, whether a blown deadline is a paperwork problem or a wrong, and whether “trust us” can ever count as a reason.

Here is where I land; the rest of this piece earns it. Access to government records is a right the people hold prior to any statute, because it is a condition of legitimate government itself. Secrecy is the exception, and the exception argues for itself in writing, case by case, subject to review. The burden never sits with the citizen for asking. It sits with the state for refusing.

Full disclosure: Granite State Report has multiple RSA 91-A requests pending with New Hampshire agencies, and one of them, to the Meredith Police Department, sits weeks past the statute’s five-business-day response window as this piece goes to press.

Define the terms first

By “right to know” I mean something specific: an enforceable claim to inspect the records and proceedings of government, subject to narrow exceptions the government must justify, with review available when it refuses. That is different from “transparency,” a mushier word that usually means whatever the government chooses to push out: press releases and thousand-page document dumps. Call the first one access and the second one output. Hold that distinction, because the strongest objection ahead lives on the output side and the answer lives on the access side.

One more term. A government is legitimate when its authority over you is justified, and in the American tradition the justification is consent. New Hampshire’s constitution opens with exactly that claim: Part I, Article 1 says all rightful government originates from the people and is founded in their consent. John Locke built the philosophical case in the Second Treatise of Government a century before this state’s framers wrote it into the Bill of Rights. So the question sharpens. What does consent require?

Consent you cannot see is not consent

Sight, for a start. You cannot ratify, refuse, or correct what you are not permitted to inspect. A principal who signs whatever the agent slides across the table has not consented to the agent’s conduct; he has surrendered to it. Scale that up and you have the argument’s engine: a self-governing people must be able to know what is done in their name, or “self-governing” is a courtesy title.

James Madison put the engine into one sentence in 1822, writing to William T. Barry of Kentucky:

Honesty requires the context. Madison was praising Kentucky’s plan for public schools, not drafting a records law, and quote collectors routinely stretch that letter further than it goes. The mechanism still carries, because he tied self-government to the means of acquiring information. Schools are one such means. A statute that lets any citizen pull the government’s own file is another. A people who mean to rule themselves need a working supply line for facts about their own government, and no one else controls the warehouse.

The second premise is about agency. Article 8 of this state’s Bill of Rights has said since 1784 that officers of government are the people’s substitutes and agents, accountable at all times. An agent who decides what the principal may know about the agent’s own conduct is not accountable in any working sense; he is unsupervised. Jeremy Bentham worked this out in his 1791 essay on publicity in political assemblies: keeping deliberation and records open holds officials to their duty and gives the public real grounds for confidence rather than a demand for it. John Stuart Mill sharpened the point in 1861. “To be under the eyes of others—to have to defend oneself to others,” he wrote, steadies conduct; the bare obligation of giving an account pushes people toward conduct an account can survive. Louis Brandeis then compressed the whole tradition into the line editors have leaned on ever since, in Harper’s Weekly in 1913: “Sunlight is said to be the best of disinfectants,” with electric light as the most efficient policeman.

Kant’s test for state secrets

Immanuel Kant supplies the argument’s spine, and its limit. In the second appendix to Perpetual Peace (1795) he proposed a test for political action: a maxim that must stay hidden to succeed is unjust. If the rule your policy runs on could not survive being announced, the policy wrongs somebody. Two features matter for real records fights. It is a negative test, so passing it proves nothing while failing it condemns. And it applies to the rule, not to every individual fact. A state may keep the date of a drug raid or the name in a juvenile file secret, so long as the rule licensing that secrecy can itself stand daylight and debate. That is the philosophical shape of a legitimate exemption: enacted in public and invoked on the record, with review afterward. What the test forbids is the other thing, concealment that answers to no announced rule at all.

New Hampshire already answered

This is not an argument New Hampshire needs persuading on. In 1976 the voters amended Article 8 to add the country’s plainest constitutional sentence on the subject: government “should be open, accessible, accountable and responsive,” and the people’s access to governmental proceedings and records may not be unreasonably restricted. The words sit in the Bill of Rights, above every statute and department policy in the state.

The legislature built the machinery in 1967 and has kept tightening it. RSA 91-A, the Right-to-Know Law, opens by calling openness in public business “essential to a democratic society,” then carries the philosophy in its mechanics. Every citizen may inspect governmental records. An agency that cannot produce a record immediately gets five business days to hand it over, deny it, or explain the delay in writing with a cost estimate. A denial must name the specific exemption and explain how it applies to the record withheld. Even the closed door has to announce itself: a public body entering nonpublic session must state the exemption on the face of its motion and vote by roll call, and even sealed minutes go on a public list naming the date and exemption claimed. Secrets are permitted in this state. Unaccountable secrecy is not. That is Kant’s test written into Granite State law.

Why press the philosophy now? Because the enforcement half of the bargain is quietly rotting. In 2022 the legislature created a right-to-know ombudsman, a $25 alternative to suing in superior court when an agency stonewalls. Then it cut the position’s pay from $105,000 to $30,000. The first ombudsman, attorney Thomas Kehr, resigned in July 2025, and as the New Hampshire Bulletin reported this week, Gov. Kelly Ayotte has gone a full year without nominating a replacement; her office did not respond to the Bulletin’s questions about why. The Secretary of State’s office now warns filers that nothing can happen with their complaints until someone holds the job. The statute still promises every citizen a cheap referee. The chair is empty. A right whose referee has walked off is a right the state is quietly renegotiating.

The strongest objection, at full strength

The serious case against my thesis comes from Onora O’Neill, the Cambridge philosopher who used the BBC’s 2002 Reith Lectures to attack the transparency creed head-on. Her argument, compressed: decades of disclosure mandates did not restore public trust and may have corroded it. Floods of released material bury citizens in what they cannot assess. Institutions learn to perform compliance, generating paper where honesty should be. Forced openness chills the candid, tentative talk that good decisions need, and she warned that zeal for transparency can end up rewarding polished deception rather than curing it. History hands the objection its second barrel: the framers wrote the United States Constitution behind locked doors in Philadelphia in 1787, and Madison, the same Madison, later defended the secrecy, arguing that members who commit publicly to a position will defend it past the point of persuasion, while a closed room left every man free to change his mind.

Take the objection at full strength. If the case for openness is better government and warranted trust, and openness as practiced delivers box-checking and worse deliberation, then the presumption dissolves into a policy dial that officials may set wherever outcomes demand. On that view a blown deadline is a scheduling problem, a redaction is risk management, and “trust us” is a complete sentence.

Why the objection fails

Three moves put it down.

First, O’Neill’s target is output, and her own remedy gives the game away. What she asks for is assessability: ordinary people able to check what they are told. Checking presupposes access. A government that publishes ten thousand pages nobody asked for while refusing the one file a citizen requested has plenty of transparency and no right to know. Her critique lands on how states disclose. It never touches whether citizens may demand. If anything it sharpens the demand side, because the cure for unassessable disclosure is the power to pull the one record that settles a question.

Second, the argument here was never only about outcomes. Suppose a sealed, benevolent administration beat an open one on every scoreboard you like. It would still change what the people and the state are to each other: principals and agents traded in for wards and guardians. Nobody in New Hampshire consented to be governed on faith, and Article 8 exists so that no official can ask them to.

Third, deliberative secrecy belongs inside the right rather than standing against it. Philadelphia’s locked doors opened onto full publication and ratification debates in the states; the secrecy was one stage of a process that finished in the open, exactly as Kant’s test allows. New Hampshire’s law already builds candor-protecting rooms for personnel matters, private reputations, and pending litigation, and every entry into those rooms is public record: the motion, the exemption, the roll call. What no theory on offer defends, and what Kant’s test flatly condemns, is concealment that can never be examined even after the fact. Nothing in this state’s law licenses that. Officials who behave as if something does are freelancing.

Where that leaves a blown deadline

So the burden sits with the withholder, always. The five-business-day window in RSA 91-A:4 is a duty owed by agents to their principals, and delay is denial on layaway. When an agency lets a request age past the statute without the written explanation the law demands, it is making a small philosophical claim of its own: that the governed answer to the government. Part I, Article 8 says the opposite, and it has said so for fifty years.

I file records requests for a living. I do not owe any agency in this state a reason for asking; the constitution settled that in 1976 and the statute in 1967. Every agency owes me, and owes you, a reason for refusing: in writing, with the exemption named, inside five business days. Hold them to it. That is what the philosophy requires. Conveniently, it is also the law.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was verified against primary sources before publication; see the fact-check table. Three caveats. The status of GSR’s Meredith PD request is drawn from the editor’s own request log and should be reconfirmed against that log on publication day. Onora O’Neill’s position is characterized by paraphrase from her published 2002 Reith Lectures; no words are placed in her mouth. The Madison quotation exceeds this outlet’s usual 15-word cap deliberately, as a verbatim, attributed historical quotation whose exact wording carries the point. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.