When the Courts Fail the People: A Troubling Case of Secrecy in New Hampshire

By Jeffrey Clay

In a case that should trouble every citizen who values open government, Judge Daniel I. Schulman of the Rockingham Superior Court upheld an agreement that attempted to strip away one of the most fundamental rights guaranteed under the New Hampshire Constitution: the people’s right to know. Even more inconceivably, the New Hampshire Supreme Court unanimously affirmed Schulman’s order, going so far as to call it “well reasoned.”

A Settlement Against the Constitution

The controversy began when the Town of Newmarket entered into a settlement agreement that barred me—not only me personally, but even my relatives or anyone acting on my behalf—from ever filing another public records request under RSA 91-A. This “gag clause” was designed to shield the Town from accountability, permanently closing the door on transparency.
Yet the law is crystal clear. In Stone v. City of Claremont (2024), the New Hampshire Supreme Court held that no one can contract away the public’s right of access under RSA 91-A. Any agreement that prospectively waives future access is void and unenforceable as against public policy. Judge Schulman knew of this precedent. Instead of following it, he twisted the reasoning, claiming that the waiver wasn’t “absolute” because I could still attend meetings, subpoena records in litigation, or request state records. But Stone drew no such distinction. Any waiver of future rights is unconstitutional, period.

Denying a Jury Trial

Worse, Schulman decided disputed issues of fact himself, despite my clear demand for a jury trial. Questions of public policy, prejudice, and government misconduct are precisely the kinds of issues that juries are meant to decide. By granting summary judgment to the Town, Schulman violated not only established rules for summary judgment—where all facts must be viewed in the light most favorable to the non-moving party—but also my fundamental right to a jury.

The “No Prejudice” Fiction

Perhaps the most astonishing part of his order came when Schulman addressed the Town Council’s illegal meeting. Rather than acknowledging the constitutional harm of secret governance, he wrote that neither I nor the public could prove prejudice from the violation. This reasoning stands the law on its head. Under RSA 91-A, an illegal meeting is itself a form of prejudice against the public. Citizens should not be required to prove how secrecy harmed them; secrecy is the harm.

The Supreme Court’s Abdication

One might expect the state’s highest court to correct such glaring errors. Instead, the New Hampshire Supreme Court unanimously affirmed Schulman’s order, adopting his reasoning wholesale and pronouncing it “well reasoned.” The Court offered no meaningful explanation of how a prospective gag clause could coexist with Part I, Article 8 of the New Hampshire Constitution, which promises that government must be “open, accessible, accountable and responsive.”
By endorsing Schulman’s decision, the Supreme Court effectively gave municipalities a green light to buy secrecy. With enough settlement money, a town can now silence citizens and cut off the public’s right to know. This undermines the very foundation of our democratic system.

A Dangerous Precedent

This case is not merely about me. It is about every citizen of New Hampshire. If government can purchase silence and courts will enforce it, then public access is no longer a right but a commodity—available only when officials choose to honor it.
The New Hampshire courts have a solemn duty to uphold the Constitution and ensure that government remains open and accountable. In this case, both Judge Schulman and the Supreme Court failed in that duty. Their decisions betray not only one citizen but the entire public they are sworn to serve.

The Bottom Line

When a court calls an unconstitutional decision “well reasoned,” it is not reason but deference to power that guides the law. New Hampshire deserves better. The people’s right to know cannot be signed away, bargained away, or judicially excused. Transparency is not optional; it is the lifeblood of democracy.