Judge Schulman Got It Wrong: Why Newmarket Didn’t Earn Summary Judgment

Op-Ed

By Jeffrey Thomas Clay
Judge Schulman Got It Wrong: Why Newmarket Didn’t Earn Summary Judgment

Opinion
The promise of New Hampshire’s Right-to-Know Law (RSA 91-A) is simple: government must be open, accessible, and accountable to the people. Judge Daniel Schulman’s decision granting summary judgment to the Town of Newmarket betrays that promise. It does so not on a full record after a trial, but on paper—by resolving disputed facts, narrowing the law, and blessing a contract mechanism that lets a public body buy silence with taxpayer dollars. That is not transparency; it’s a blueprint for secrecy.
Below are the core errors that make this ruling unworthy of standing—errors the Supreme Court should correct on reconsideration and the Legislature should foreclose by statute.

1) The summary-judgment standard was misapplied

Summary judgment is appropriate only when no genuine dispute of material fact exists, with all reasonable inferences drawn for the non-moving party. Courts do not weigh credibility or pick among competing versions of events at this stage. Yet the order treats contested facts—what the agreement required, what conduct occurred, what officials knew and when—as settled in the Town’s favor. That is the textbook opposite of the summary-judgment lens.

2) Disputed facts about knowledge, scope, and effect were treated as “immaterial”

Whether public officials knew about and tolerated the practices at issue; whether consideration in the agreement was tied to withdrawing complaints and forgoing future RSA 91-A requests; whether residents were chilled from seeking records—those are material to illegality and public-policy analysis. Rebranding them as “immaterial” allowed the court to avoid a trial it should have held.

3) Public-policy analysis ignored RSA 91-A’s command and the Constitution

RSA 91-A:1 declares that openness “is essential” to a democratic society and must be interpreted broadly to ensure the greatest possible public access. Part I, Article 8 of the N.H. Constitution guarantees an open, accessible, accountable government. A deal that conditions payment on withdrawing pending RTK complaints and never filing future requests collides with both. Courts do not enforce contracts that undermine statutory duties or constitutional guarantees. This order does.

4) It conflicts with binding principles in New Hampshire law

New Hampshire precedent holds that public contracts cannot waive or contract around statutory duties. The order effectively authorizes public bodies to do exactly that—using settlement dollars to suppress current and future requests. That move doesn’t “settle” a case; it privatizes access to public records. The decision never reconciles this tension with the settled rule that duties owed to the public are not for sale.

5) It treats a private promise as if it could extinguish a public right

Even if one citizen could bargain away their request, RSA 91-A rights exist to benefit the public at large. Allowing an agency to purchase a person’s promise not to ask for records (ever) erodes the broader public’s access by removing a watchdog and signaling that scrutiny can be bought off. The order conflates private waiver with the public’s non-waivable interest.

6) It blesses prospective waivers that chill future oversight

Prospective gag-and-no-request clauses are uniquely damaging: they deter future petitions, distort the information ecosystem, and reward agencies that conceal. Courts routinely refuse to enforce contracts that prospectively waive statutory protections because they invite abuse. The order never grapples with that forward-looking harm or with the chilling effect doctrine.

7) It short-circuits severability and remedies

At minimum, any unlawful restraint on future requests should have been severed and declared void, even if a court were to leave a narrow case-withdrawal term intact. Instead, the order functionally validates the most offensive restraint while denying any remedy that would protect transparency going forward.

8) It denies the role of the jury on contested facts

Whether money changed hands to suppress complaints, what terms were demanded, whether officials knowingly tolerated the underlying conduct, and whether residents were retaliated against—those are fact questions. Denying a jury on those disputes, then using a paper record to declare the agreement lawful as a matter of public policy, inverts the process. Courts decide law, juries decide facts. The order crossed that line.

9) It misreads mootness and public-interest exceptions

Labeling the controversy “resolved” by contract ignores that restraints on future access are capable of repetition yet evading review, and that Right-to-Know issues carry a recognized public-interest dimension. Courts regularly hear such disputes precisely because they affect everyone, not just one litigant. The order’s mootness logic invites agencies to replicate the problem ad infinitum.

10) It rewards “voluntary cessation” tactics

When a government actor stops a challenged practice mid-litigation—or pays to sidestep scrutiny—courts do not simply declare victory and go home. They ask whether the conduct can reasonably be expected to recur. Here, the structure of the agreement encourages recurrence. The order waved that concern away.

11) It treats assertions, not admissible evidence, as dispositive

At summary judgment, admissible evidence carries the day, not lawyer characterizations. Where the non-movant offers affidavits, documents, or other proof that would allow a reasonable jury to find for them, the motion must be denied. The order’s reliance on conclusory assurances—and its discounting of contrary record material—was improper at this stage.

12) It invites a market for secrecy

Most troubling, the order invites public bodies to spend taxpayer funds to “purchase” silence and future non-use of RSA 91-A. That is the antithesis of Article 8’s accountability guarantee. If left standing, the message is clear: don’t fix transparency problems—pay to make them disappear.

The fix: judicial and legislative

The Supreme Court should grant reconsideration, restore the proper summary-judgment standard, and hold that any agreement restraining future Right-to-Know requests is void and unenforceable. And the Legislature should codify the obvious: public bodies may settle pending disputes, but they may not contract for prospective waivers of RSA 91-A rights, nor spend public money to chill future oversight.
New Hampshire’s Right-to-Know Law is not a bargaining chip. It is a public trust. This decision breaks that trust—and it should not stand.