In the name of efficiency, New Hampshire recommends treating some requesters differently
Now that I’ve put my brain box back together — you see, it exploded into tiny, tiny bits after reading this article — I feel I can finally sort out just why both the subject of the article and the article itself lit the cranial TNT this morning.
The article came to me from New Hampshire, via the Governing website, which I trawl every day for headlines.
- My niece lives in Concord, less than a mile from the gold-domed State House. As a government/legislative nerd, the building fascinates me both because of its auditorium-style seating for members with voting buttons on the armrests, because there are no desks, and because it is devoid of legislator offices. Where do they meet with lobbyists and advocates, I asked a tour guide, who looked back at me as if I were the very undraped virtue on the seal of Virginia. At their home offices, where else? And with one House representative per 3,500 residents, I suppose that’s entirely feasible.
The article is about the final report of the governor’s Commission on Government Efficiency (that’s COGE, cousin of DOGE), created in January 2025 to “help our state find better ways to do things with fewer taxpayer dollars.”
The final report is 77 very wordy pages long. There are no illustrations, no photos, no graphs, no tables, no bullet points. And no page numbers! Just page after page of grievance about why this program is bad, that program could be better, or this thing should be completely overhauled.
Despite the lack of page numbers, if you scroll to the 32nd page of the PDF, you’ll find four paragraphs about something COGE thinks should be overhauled: New Hampshire’s version of FOIA, which is called the Right to Know Law.
After “strongly” affirming COGE’s commitment to the public’s right to know, the report goes on to criticize the “sheer volume” of RTK requests, which has “placed a growing strain on agency resources, consuming months of staff time and delaying responses to the very citizens the law was designed to serve.”
This isn’t quite “the law is for you, just don’t use it so much.” There’s an actual culprit, or culprits: “data mining firms, special interest groups, or out-of-state organizations seeking to compile or resell government information.”
The proposed reform is fairly mild: allow agencies to prioritize in-state requests over these for-profit requests, such as, I assume, the entire real estate industry.
- I say “mild” because in 2011, the McDonnell administration’s Government Reform Commission recommended eliminating the Virginia FOIA Council.
But the report jumbles it all up — out-of-state with data miners, commercial requests with special interest groups — without giving any specifics. Just four conclusory paragraphs to justify “thoughtful reforms” to ensure that “government remains accessible to all, without compromising its ability to function effectively for the people it serves.”
- Pro tip: In my two-plus decades tracking the people’s right to know, I think I can say with some authority that the people the government serves would choose accessibility over efficiency every time.
Media response
Enter the reporter. He will ask the hard questions, right? Which state agencies did you talk to? Does your recommendation assume local governments and school districts are similarly burdened? What constitutes a data miner? Is the free market system compatible with restrictions on reselling government data? What is meant by “burden”? What kinds of budgets and staff are these agencies equipped with? Have citizens complained about the delay in processing their requests? Are the agencies doing any proactive disclosure? Is the news media a “commercial requester”? Is there a mandate that all requests be processed on a first-come, first-served basis, regardless of size or complexity? Are in-state commercial requesters filing similarly burdensome requests? How many requests are we talking about, and how many employee hours?
The reporter does not offer much in the way of answers to any of these questions except the last.
- Department of Safety: 3,472 requests (total)
- Department of Transportation: 115; 12 of which — 10% — were from “commercial entities”
- Department of Justice: 403 (at least; some requests aren’t logged)
Aaaand, that’s it. Total number of requests from three agencies. Commercial request totals from just one of those agencies. And no confirmation that the 12 commercial requests were from in-state or out-of-state requesters. And no examples of what these requests ask for. We are, I suppose, just supposed to assume that the requests were large, complex, burdensome, etc.
The article goes on to discuss the ACLU’s position in Pennsylvania that commercial requests should not be treated differently from everyday requests (access for all, or access for none). And also how the ACLU takes largely the same position in New Hampshire, including when it opposed a bill that would have restricted RTK requests to New Hampshire residents.
So, just as the report does, the reporter jumbles up all of these knocks on government efficiency — “data mining firms, special interest groups, or out-of-state organizations seeking to compile or resell government information” — without any testing for evidentiary or logical soundness.
- Virginia — the home of the 2013 U.S. Supreme Court decision saying it’s OK to treat out-of-state requesters differently — will be taking a look at its restriction this summer, prompted by a bill by Del. Otto Wachsmannthat rests on the premise: Why shouldn’t a North Carolina resident who owns property in Virginia be able to FOIA information related to that ownership?
- I’d take it much further, something I’ve written about extensively over the years, but Wachsmann’s bill elegantly showcases the absurdity of assuming that interest in what government is doing stops neatly at geographic borders.
Next steps
I don’t know what’s in store for New Hampshirites in the wake of the COGE report. (The McDonnell administration obviously abandoned its plans for the FOIA Council), but here’s what I do know: When government proposes to make it harder for the public (and the public includes business and commercial interests, as well as out-of-state requesters and special interests) to access government information, they sure as heck need to articulate specific interests, backed up with concrete data and illustrated by cogent examples, that can be addressed with tightly drawn legislative proposals.
And reporters covering proposals like this (and, really, any legislative proposal) need to ask questions that will test conclusions, poke holes or confirm well-supported allegations as needed.
I’m begging them both to think critically. Because my brain box can only take but so many explosions.