In the dusty basement of the State House Annex, the floor littered with chunks of cement dislodged from the construction above, a lawyer in a black suit clicked on his tape recorder.

Thomas Kehr was now on the record.

Sitting at the head of a long table with three selectmen and their attorney on his left and a man on his right who argued for access to public information, Kehr got straight to business. He explained the rules of the game: that he’s not a judge, and that he can only rule on questions pertaining strictly to New Hampshire’s right-to-know law, officially RSA 91-A.

This was to be an informal conference, he said, and if necessary it could become a more official hearing. He posed a question: Could the two opposing parties work it out first?

Kehr is New Hampshire’s right-to-know ombudsman: a little-known position created by the Legislature in 2022, designed to give New Hampshire residents a more accessible path to redress complaints when they believe the right-to-know law has been violated. Lawmakers hoped it’d be a faster and cheaper option than a lawsuit, and a way to relieve some of the burden on the state’s court system.

The transparency advocacy group, Right-to-Know New Hampshire, worked for eight years to get this position established, seeking to streamline right-to-know challenges for members of the public, said Katherine Kokko, the organization’s president. She cited her own experience living in Milford, where she’s challenged government officials several times over potential violations of the right-to-know law.

“This is the kind of thing that happens in a community, where it’s small-scale enough that the average person is not going to want to bring this to court,” Kokko said. “And yet, there’s probably a justified feeling on the part of the member of the public who’s following this, that this is not right, and so the ombudsman’s office provides a path for challenging decisions like that and trying to get course correction from the public body that you’re working with. Otherwise, it requires a very long and drawn-out court battle.”

Those who’ve navigated the ombudsman process – government agencies and claimants alike – appreciate the alternative to a courtroom. However, some who’ve filed claims feel the process is still too legalistic and time-consuming to be accessible to the layperson. Though some cases are clear-cut and can be shorter than a lawsuit, others drag on for months, with a handful dating back to 2023 that are still unresolved.

“The whole thing just wound up looking like a legal case anyway,” said Andrew Osterman, a Peterborough resident who filed a complaint against the state Department of Safety in December 2023. His case was dismissed this February and he estimated he spent “a couple hundred hours” managing it over the past 15 months.

The law establishing Kehr’s position was written with a sunset date, meaning unless the Legislature renews it, the Office of the Right-to-Know Ombudsman will cease to exist on July 1. The legislation that would extend the role another two years, House Bill 111, has been all but killed by the House Finance Committee. Lawmakers still plan to fund the position but would change the office’s makeup, leaving Kehr – and his dozens of cases – in limbo.

While some would like to see improvements in the office – like more staffing for Kehr and more resources for people representing their own cases – right-to-know advocates don’t want to see it abolished.

How the process works

As of March 9, the office had closed 51 cases since its inception in January 2023, and 29 cases were still active. By the end of 2024, the ombudsman’s office had handled cases against 35 municipalities, 13 state entities, five school districts, two counties and one college.

Any New Hampshire citizen can submit a complaint to Kehr if they think a government agency has violated a portion of the right-to-know law. This can include closing off meetings that are required to be open to the public, failing to respond to right-to-know requests within five days and improperly exempting or redacting certain documents.

Once Kehr receives the claim, he has to notify the government official or agency that someone has accused them of violating the law. Each party sends in evidence, and by the 60th day after the claim is filed, he must decide whether to grant or deny the claim or, more often, schedule a meeting to hear more.

He invites both parties to meet in the State House Annex basement, not far from where his office is tucked away at the end of a long, dimly lit hall. There are exposed pipes in his office ceiling and an air conditioning unit to fight the heat that builds up in the basement during the summer.

Kehr’s desk barely contains the expanse of paperwork spread out on top of it. There are more papers on the coffee table by the armchairs, and thousands more stored away in a tall, deep filing cabinet kept in a dark closet toward the back of his office. Most case files are several inches thick, nearly bursting out of their accordion folders.

Around the corner from his office is a conference room, where Kehr gets both parties together to talk about the case. He tries to encourage and mediate an informal resolution, to see if the two sides can agree on a compromise.

“I see if we can reach a common ground, common understanding. I see if we can resolve matters,” Kehr told the Monitor. “I see what people are actually looking for. Sometimes it’s unclear what people are looking for, and we try to clarify that.”

When an agreement can’t be reached, the process continues on to a separate hearing, which operates more like a court. Witnesses are put under oath, evidence is reviewed and Kehr makes a ruling.

Kehr is careful to remind people that he isn’t able to address all disputes that might come up between a petitioner and the government – like a complaint about taxes – his scope is narrowly tailored to the right-to-know law.

The Office of the Right-to-Know Ombudsman is a far cheaper option than the court system. Submitting a complaint to Kehr costs only $25, compared to $280 to file a lawsuit with one of New Hampshire’s Superior Courts. 

Erin Cregan, general counsel for the New Hampshire Court System, testified to lawmakers in January that there has been a “substantial decline” in the number of right-to-know cases pursued in the courts since the ombudsman’s office was established. Based on an informal survey of colleagues across the state, she said, around 45 right-to-know cases used to be filed each year. That number is now down to 10 or fewer in the past year.

‘Exceptionally legalistic’

Kehr’s cases often vary in length. Some are straightforward and handled within a month or two. Others have stretched more than a year.

When the office was created, the Legislature did not budget for any support staff, meaning administrative duties take up a large chunk of Kehr’s time. He’s responsible for sending both parties all the relevant information and scheduling all of his own conferences and hearings, not to mention presiding over each case.

“The longer cases are the ones in which everybody files a whole bunch of different motions,” Kehr said. “Rescheduling is something I spend a lot of time on, because I send out a notice, people say ‘I’m out of the country that day.’ I have to look at that, I have to change all the notices … Rescheduling takes up a lot of time, delays things. Failure to show up delays things – then I’ve got to send out an order saying what happens because you didn’t show up, etcetera.”

He’s a “one-man band,” as Kokko put it, and she thinks the Legislature could’ve done a better job at setting the office up for success.

Kokko, who’s been through a right-to-know lawsuit before, said she found the ombudsman’s process more straightforward – and much less costly – than the courts. She filed a complaint with Kehr back in 2023, when a board in her town didn’t disclose in meeting minutes its reasoning for going into a non-public session.

Her case was rather cut-and-dry, with Kehr deciding in her favor after reviewing the non-public meeting minutes. Kehr made his ruling within three months of Kokko’s initial filing, and she didn’t have to go through the full adjudicative hearing.

Towns, which are generally on the receiving end of these complaints, have also found the ombudsman’s office to be a helpful alternative to the court system. 

“It seems like we’re getting more decisions quicker,” said Jonathan Cowal, municipal services counsel at the New Hampshire Municipal Association. “When municipalities find themselves in front of the ombudsman for an issue, they’re able to get an answer in a bit of an easier process than going through a full superior court case … Moving quickly through the system is beneficial for everyone involved.”

For anyone new to the process, it can be difficult to navigate. Kokko said she wants to see more support and resources for people filing a claim. Kehr’s role, as it’s set up, is that of an adjudicator. Kokko said he’s limited in what he can do to support the parties.

“He is working very hard to make sure that he is clear, that he is unbiased and that people understand the process,” Kokko said. “I think the process that is being navigated can be extremely difficult for a layperson.”

Kehr said he’d like the Office of the Right-to-Know Ombudsman to do more outreach and education on RSA 91:A. He doesn’t expect most citizens to know that law as well as he does, but he tries to explain it during hearings, he said.

Osterman, whose case against the Department of Safety went through the ombudsman’s mediation, described his experience as “exceptionally legalistic.” He felt equipped to hold his own, Osterman said, but only because he’d spent two decades working in the subject matter that became the center of his case.

He recommended that people undergoing the process should get a lawyer, though that’s not the case for most. Residents overwhelmingly represent themselves, according to an annual report from the office, while most responding agencies use an attorney.

Kokko said she wants to see improvements, including more resources, but as the ombudsman’s office faces a battle in the Legislature, she doesn’t want the office’s current issues to tank its chances for renewal.

“Although there are challenges in how [it’s set up], we can’t address those if the office is not continued,” Kokko said. “Right now, I’m not seeing the overwhelming support for the office that we expected to see when this year started.”

Kehr, too, knows something needs to change.

“The current structure is unsustainable as an institution because I am doing a lot of different jobs,” Kehr said. “Everything I do impacts something else. If I’m processing a case that comes in, I am not deciding a case that has been submitted.”

On shaky ground

Despite passing the House of Representatives last month, HB 111 to renew Kehr’s position was all but killed in committee. Lawmakers in the House Finance Committee voted on Monday to retain the bill, halting its path to the Senate. Dan McGuire, who chairs one of the Finance Committee divisions, said they’ll still allocate money for the ombudsman function in the state budget trailer bill but that the role may look different.

McGuire, a Republican from Epsom, said he wants to make the ombudsman a part-time role and slash its budget. He didn’t share the exact number but said it could be reduced to “maybe a fifth of what we’re spending now.”

“There really isn’t, in my opinion, enough work for a full-time person,” McGuire said. “The cost per case – that’s how we look at these things – is way too much.”

The total budget for the Office of the Right-to-Know Ombudsman – which includes salary and benefits for Kehr, plus all office supplies and other expenses – was slated to be $170,000 in fiscal year 2026 if renewed. If split by the average 37.5 cases received by his office in each of its two years in operation, that would work out to $4,533 per case. Each case varies widely and takes a different amount of time and work, however.

McGuire is looking to attach a part-time ombudsman to the state’s Public Employee Labor Relations Board, a group staffed with several other attorneys that deal mostly with collective bargaining and labor practices for state workers. Boards like those also have some administrative support, which could help the ombudsman with answering phones and other office tasks.

The budget process can drag out, and provisions are often added and removed to the trailer bill, House Bill 2, at the last minute. Changes could still be made.

And, unless it’s passed and signed by Gov. Kelly Ayotte by  June 30, Kehr’s office will cease to exist on July 1. With the future of his position uncertain, Kehr said, he’s started advising the parties in his cases of his potential expiration date. He may also have to start expediting his remaining cases.

“If anything’s not wrapped up by June 30, and there’s no law continuing me,” Kehr said, “everything’s dismissed without prejudice.”

 

Charlotte Matherly is the statehouse reporter for the Concord Monitor and Monadnock Ledger-Transcript in partnership with Report for America. Follow her on X at @charmatherly, subscribe to her Capital Beat newsletter and send her an email at cmatherly@cmonitor.com.