Independent New Hampshire Journalism · Northfield, NH

Avoid the Unhappy and Unlucky

Greene says keep your distance from the unlucky. New Hampshire did, and chose the wrong unlucky: the Senate tabled the bill that would pay a winning requester’s lawyer and passed the one that charges requesters by the email.

On March 11, 2021, a Nashua resident named Laura Colquhoun asked her city for two months of emails between two employees: the administrative services director and the chief of assessing. A week later the city said no. The request was “overbroad and not reasonably described,” and a request for “just emails,” the city reasoned, could not be searched at all. She sued on March 25. Within six days of the lawsuit, the city found 547 of them.

Nineteen months after that, the New Hampshire Supreme Court ordered the city to pay her lawyer. The vote was three to two.

Robert Greene’s tenth law of power is about contagion. Avoid the unhappy and the unlucky, he says, because misery spreads by association; stay close to the fortunate and the fortune rubs off. It is advice to a courtier who can choose his company.

Governments do not get to choose their company. They get sued by whoever walks in the door. So the question for the tenth law in New Hampshire is not whether officials avoid the unlucky. It is what the state does once a city has become the place where Right-to-Know fights go to be fought. The record of the last five years gives a clean answer, and it is not the one Greene would predict.

The rule

The money does not follow the loss. It follows the knowledge. A city can withhold a record, lose, be ordered to hand it over, and pay nothing toward the other side’s lawyer, so long as a judge finds it should not have known it was wrong. That sentence, “knew or should have known,” has been in the statute since 1986. It is the state’s quarantine line, and it decides whether the citizen who won gets made whole or gets a bill.

A city that keeps getting sued

Nashua is the test case because Nashua is where the cases are. In July 2021 the city’s corporation counsel, Steven Bolton, told the Telegraph the city had “well over 100 RTK requests we’re trying to deal with.” Of a request that had gone ninety days without an answer, he said, “Yes, things slid more than they should have.”

The Colquhoun case was decided in October 2022. Chief Justice Gordon MacDonald, joined by Justices Hicks and Donovan, held that a blanket denial of a two-month email request between two named employees was something the city should have known was a violation. He reached back to a 1976 decision to say why fees matter: the ability to win them “is critical to securing the rights guaranteed by the statute.” Justices Bassett and Hantz Marconi dissented: the law was unsettled, and the trial judge could find the city had a reasonable basis. Two of five justices would have left a citizen who beat her city holding her own legal bill.

The other Nashua litigant is better known. Laurie Ortolano’s dispute with the city began with her property assessment; the state Board of Tax and Land Appeals eventually found the city had overtaxed her in 2018 and 2019. Along the way she asked for the assessing department’s field data cards, security footage from the day she went to inspect records, and recordings of police interviews with department employees. Judge Charles Temple found the city withheld what it should have produced, wrote that in most instances officials “knew, or should have known,” and set her attorney’s fees at roughly $63,400, a 68 percent reduction from what she claimed.

The Supreme Court took that away. On April 2, 2025, a four-justice panel reversed the fee award for the footage and the data cards and vacated it for the police recordings. People recorded going about their day have at least some privacy interest, the court said, so the city could not have known it had to release the footage. Whether a field card is a preliminary draft was a question the court had never answered, so the city could not have known that either. The recordings went back to the trial court for a private review that had never been done. Five days earlier, a Superior Court judge had dismissed a newer set of her claims against the city as frivolous and ordered her to pay the city’s fees.

Then on May 29, 2025, the same court sent a third Ortolano case back down. She had asked for the records of NPAC Corp., a for-profit company formed to help finance the city’s performing arts center and owned, through a city-owned corporation, by the city. The company said it was private; the trial court agreed; the Supreme Court said the trial court had skipped the “government function” test it has used since 1976 and told it to run the test.

Three Supreme Court decisions in thirty-one months: one loss on fees, one win on fees, one remand, plus a trial-court sanction the other way. If Greene is right, the city should be radioactive by now. Instead it has outside counsel from Portsmouth, three of its own lawyers on the brief, and a general fund.

What Concord did with the infection

The Legislature had the question in front of it the whole time, and answered it twice in one session.

House Bill 307, filed in January 2023 by Rep. Dan McGuire of Epsom and Rep. Marjorie Smith of Durham, one Republican and one Democrat, would have changed the sentence: a person who wins a Right-to-Know case would get their legal costs. House Judiciary sent it out 20 to 0 and the House passed it on a voice vote. The Municipal Association’s Margaret Burns called it “a dramatic change.” Senate Judiciary voted 5 to 0 for it with an amendment in December. On January 3, 2024, the full Senate adopted the amendments and sent it to Finance, which voted 4 to 2 for interim study on February 8. On February 15, Sen. James Gray of Rochester moved to lay it on the table. The motion carried on a voice vote. The bill never came off.

House Bill 1002, filed in January 2024 by Rep. Katelyn Kuttab, went the other direction: it let a public body charge a requester for emails. The House passed it 193 to 179, reconsidered and recommitted it, then passed an amended version 268 to 106 on March 21. The Senate committee voted 5 to 0 and the Senate passed it on a voice vote. Gov. Chris Sununu signed it June 14, 2024, as Chapter 49. Since August 13, 2024, a town may charge up to one dollar per electronic communication after the first 250, with waivers for the indigent, the public interest, and the press.

Same Senate, same session. On February 15 it tabled the bill that made the winner whole. Ten weeks later it passed the bill that made the asker pay, without a recorded vote, and sent it to the governor.

The third answer came in the budget. The Right-to-Know ombudsman, created in 2022 as a $25 alternative to Superior Court, had been filled by Thomas Kehr since late 2022. The 2025 budget trailer bill cut the office’s salary and spending from $105,000 to $30,000 and wrote the pay into the statute: a $200 stipend each pay period, $400 for a day of work, $50 an hour for drafting. Kehr resigned in July 2025. A year later the Bulletin asked the governor’s office why no one had been nominated and got no reply. In September 2026 a Concord Monitor column reported the office still empty.

So the cheap lane is closed, the expensive lane charges by the email, and the bill that would have paid the winner’s lawyer is on a table in the Senate.

The case for the fee

The Municipal Association’s argument deserves its hearing, because it is not foolish.

A request for “all emails” between two people over two months is cheap to write and expensive to answer. Somebody has to search, read, and redact each one, and the 2024 law lets that somebody recover part of the cost once a request passes 250 messages. A body cannot charge without a written policy, must waive the charge for the indigent, the public interest, and the press, and carries the burden of proving the estimate is reasonable if challenged.

Nor is the “knew or should have known” standard a loophole. It is why towns can take close questions to court without betting the budget. The Ortolano reversal shows it working as designed: a body should not be fined for guessing wrong on a question nobody had answered.

Even the ombudsman has critics on the open-government side. William Chapman, a Concord media lawyer, told the Bulletin the office was “an unnecessary step” whose rulings bind no one.

All true. None of it changes what the Senate did between January 3 and February 15, 2024.

Where the tenth law lands

Greene is describing a courtier’s survival instinct, and in Concord the instinct is real. Nobody wants to sponsor the bill that cost the towns money. The Municipal Association testifies at every hearing. The requesters show up one at a time, each carrying a grievance that makes legislators uncomfortable, and the unlucky ones carry a legal bill. One of them told the House Judiciary Committee in January 2023 that she faced almost a quarter million dollars in fees. That is her number, and the court later took most of her award away. But it is the number legislators heard, and they tabled the bill anyway.

The tenth law, applied to a state, comes out backwards. New Hampshire does not avoid its unlucky cities. It insures them with a fee standard that shields every honest mistake and most of the careless ones, and it staffs the one office built to settle these fights at a rate that drove the only person who held it out the door. The people it keeps at arm’s length are the ones who sued and won.

Where the tenth law does hold is in the courtroom. The Colquhoun dissent and the Ortolano reversal are the same instinct in judicial form: a reluctance to let one bad denial become a bill the town cannot predict. That protects the treasury, not the person who hired the lawyer.

How to stay out of the sick ward

Count to 250. A request under 250 emails cannot be charged, and multiple requests to the same body in 30 days are one request. Narrow by subject line, sender, and date, and ask for the public-interest waiver in writing.

Know which lane is open. The $25 ombudsman complaint exists in the statute and not in an office. Filing one forecloses Superior Court until a ruling or the deadline passes, and there is no one to rule.

Expect to pay your own lawyer unless the body knew. Winning the record is not winning the fees. Put the statute’s words and the Colquhoun citation in the request letter; a body that has been told the rule has a harder time claiming it did not know.

Next: Law 11, on keeping people dependent, tested against the state retirement system every New Hampshire town pays into and the share of the bill Concord stopped paying.

Fact check

Editor’s note: Commentary and analysis, not legal advice. No individual is accused of wrongdoing. Court findings against the City of Nashua and against a litigant are reported as the courts stated them, and both sides’ wins and losses appear. The characterization of the fee standard as a “quarantine line” and the GSR Power Index are editorial, not data. Granite State Report did not request comment from the City of Nashua, the N.H. Municipal Association, or the litigants for this piece; any of them may write to the address above and a response will be added with its date.