Independent New Hampshire Journalism · Northfield, NH

A Town Policy Is Not a Law

New Hampshire towns hold only the powers the legislature handed them. When a local Right-to-Know policy narrows RSA 91-A, the policy loses — and the statute names the one records policy a town was ever told to write.

Somewhere in a New Hampshire town office there is a binder. Inside it is a document titled something like Right-to-Know Request Policy. A board adopted it on a Tuesday. It is printed on letterhead, it is posted on the town website, and everyone who works there treats it as the rule. It tells you which form to fill out, who has to sign off, what you will be charged per page, and how long you should expect to wait. Almost none of it has ever been read against the statute it claims to implement.

Full disclosure: I am an active RSA 91-A requester with open records disputes against several New Hampshire police departments. Those departments are not named here. Naming them belongs to the stories about them, which are still in production, and this piece is about the question of law those disputes have in common.

A town policy is an administrative document. It carries whatever authority the legislature handed the town and not one line more. Where it narrows RSA 91-A, it is void as to the narrowing. And under New Hampshire law it does not even have to contradict the statute head-on to fail. Getting in the statute’s way is enough.

That distinction matters because almost no town policy picks a fight with the Right-to-Know Law directly. Nobody writes “records shall be withheld.” What they write is friction. Use our form. Requests go to the administrator. Copies are a dollar a page. The chief reviews it first. You may view the video here but it will not be sent out. Each line reads like housekeeping. Stacked together, they are a private amendment to a state statute, adopted by a body with no power to amend it.

Where a town’s power comes from

Start with the thing most people get backwards. A New Hampshire town is not a small sovereign. It is a creature of the General Court and exercises the authority the General Court chose to delegate. The state’s high court said as much in State v. Grant more than half a century ago: general statutes come from the legislature, and the power to make local regulations may be committed to local bodies. Committed. Handed over, on terms, rather than held in reserve by the town in the first place.

The main grant sits in RSA 31:39, and the contents are specific enough to be funny. A town may make bylaws about cemeteries and parks. About horses going at large. About mufflers on gasoline-powered boats. About public dances and roller skating rinks. About tattoo permits, restaurant licenses, noise, local campaign finance reporting, and the retail display of throwing stars and nunchaku.

Public records access is not on the list. Sixteen enumerated subjects, and the one governing whether a citizen can see a police report is not among them. That is not an oversight. The legislature kept records access for itself, in RSA 91-A, and wrote the terms out in detail.

There is one clause worth taking seriously as a counterargument. Paragraph I(l) lets a town make bylaws for “making and ordering their prudential affairs.” That is a real grant, and it is where internal office procedure legitimately lives. Who opens the mail. Who logs the request. Which clerk scans the file. A records policy that does nothing but organize the town’s own labor is on solid ground.

But prudential affairs is a housekeeping power, not a rights-adjustment power. It authorizes a town to decide how it will meet an obligation. It does not authorize a town to decide how much of the obligation it feels like meeting. The statute book says the same thing elsewhere: RSA 31:130 forgives a town for imperfect wording in a ballot question, but only where the action stays “within the scope of, and consistent with the intent of, the enabling statute.” Scope and intent. That is the boundary of every municipal document, the binder included.

The preemption rule, in the state’s own words

New Hampshire’s rule on this is not obscure and it is not old. The Supreme Court restated it in 2019 in State v. Lilley, the case over Laconia’s ordinance on public nudity. Working from its 2007 decision in Town of Rye Board of Selectmen v. Town of Rye Zoning Board of Adjustment, the court laid the doctrine out in three steps.

First, towns cannot regulate a field the state has taken. Second, preemption follows from the principle that “municipal legislation is invalid if it is repugnant to, or inconsistent with, state law.” Third, an actual conflict exists where a local rule permits what the statute forbids, or forbids what the statute permits.

Then the part that does the real work. Citing Forster v. Town of Henniker, the court held that even where a local rule does not expressly conflict with a statute, it is preempted when it frustrates the statute’s purpose.

That is the test a town Right-to-Know policy has to survive, and it is harder than most towns realize. RSA 91-A:1 states the chapter’s purpose in its opening lines: openness in public business is essential to a democratic society, and the point of the chapter is the greatest possible public access to the records of all public bodies. Behind it sits Part I, Article 8 of the state constitution, amended in 1976 to provide that the public’s right of access to governmental records shall not be unreasonably restricted.

Measure a local form requirement against that. The form does not prohibit anything. It just means a request that would otherwise start the clock on Monday starts on Thursday, or never starts at all because the requester gave up. Multiply that by a per-page charge on an electronic file, a policy of in-person viewing only, and a review layer the statute never mentions, and you have a document whose entire function is to reduce access below what the legislature set. Under Forster, that is the definition of a preempted rule.

The one policy the legislature told towns to write

Here is the detail that settles most of these arguments, and almost nobody cites it. The legislature did tell New Hampshire public bodies to write a records policy. Exactly one, on exactly one subject.

It sits in RSA 91-A:4, VIII, the paragraph governing the per-communication charge on large email requests. After capping that charge at a dollar, exempting the first 250 communications, and defining what counts as a single communication, the statute directs the public body to create a policy so its practices are transparent, uniform, and consistent, with a waiver for indigent requesters and public-interest requests. That is the delegation: narrow, explicit, and fenced by guardrails written into the same paragraph. The legislature knew how to tell a town to adopt a records policy. It did so once, and confined it to fees on high-volume electronic requests.

Which tells you what the rest of a town’s Right-to-Know policy is. Every other provision in that binder is one of two things: a restatement of RSA 91-A, in which case it is harmless and unnecessary, or an addition to RSA 91-A, in which case the town is legislating in a field the state has occupied and its own enabling statute never handed over.

Sidebar: what a town records policy can and cannot lawfully do

Why an unlawful policy stays on the shelf

If the law is this clear, the obvious question is how these documents survive. The answer is enforcement, and New Hampshire does not have much of it right now.

The Right-to-Know Ombudsman seat has been empty since July 1, 2025, after the legislature cut the office’s funding to roughly $30,000 and the first ombudsman resigned. I walked through that machinery and what is left of it in a working guide to RSA 91-A and the empty chair meant to enforce it. The Secretary of State’s notice tells the public that no action can be taken on filings until someone is appointed, and as of this summer no replacement had been nominated. RSA 91-A:4, VIII routes a fee dispute to that office by name, with a ten-business-day decision requirement. The remedy the statute wrote into its own fee paragraph currently points at a vacant chair.

What is left is superior court. That is a real door and it works, but it costs a filing fee, a pleading, and months. The ACLU of New Hampshire is in court right now over a records request that took fourteen months to answer under a five-day law, which is what the delay looks like when a party can afford to litigate it. For a single record, almost nobody will walk through it. A town policy that quietly exceeds RSA 91-A is therefore close to self-enforcing, not because it is lawful but because challenging it costs more than the record is worth to the person who wanted it. That gap is where the binder lives.

What to do with the binder

For a requester, the move is narrow and it works better than arguing. When a records officer answers with the town policy, ask one question in writing: under what statutory authority was this provision adopted, and how does it square with RSA 91-A:4. Ask for the answer in writing. Most policies were assembled from other towns’ policies, and the question has never been put to anyone. A town that cannot name the enabling authority for a provision has told you what the provision is worth.

For a select board, the job is smaller than it sounds and it is overdue. Put the town’s Right-to-Know policy next to RSA 91-A:4 and read them line against line. Keep the internal routing. Keep the paragraph VIII fee policy, with the waiver. Strike everything that adds a condition the statute does not impose. It is an afternoon of work and it removes a live legal exposure, because a policy that frustrates the purpose of RSA 91-A is not a defense in superior court. It is an exhibit.

New Hampshire towns have real authority, and this outlet has never argued otherwise. A town can regulate its dances and its skating rinks and the throwing stars in its shop windows. What it cannot do is hold a vote on Tuesday and come out the other side with less Right-to-Know Law than the state passed. The binder is not the statute. It never was.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every statutory and case-law claim above was verified against the primary text before publication; see the fact-check table. Two limitations are worth stating plainly. First, this piece names no town or department: the local policies described come from the editor’s own pending records disputes, and those departments will be identified in the reporting on them, not here. Second, no public body was asked to comment, because no public body is accused of anything in particular — the argument is about a category of document, not a defendant. Any town whose policy is discussed by name in future coverage will be given the chance to respond before publication. This is journalism and legal analysis, not legal advice; the author is not an attorney. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.