MEMORANDUM

Amendment 2026-0946h to HB 1675

Applicability of the Right-to-Know Law (RSA 91-A)

to the Domestic Violence Grant Program Under RSA 173-B

For Members of the New Hampshire House of Representatives

The Amendment

Amendment 2026-0946h, recommended by the House Executive Departments and Administration Committee on a 9–7 vote of Ought to Pass as Amended, replaces the original text of HB 1675. The amendment does three things:

Section 1 amends RSA 173-B:16 to provide that the grant program coordinator, direct service grantees, and their subcontractors, in the furtherance of the domestic violence grant program, shall be subject to the requirements and exemptions of RSA 91-A as a public body established in 2000 pursuant to this chapter.

Sections 2 and 3 require annual reports on the domestic violence fund (from the Commissioner of Health and Human Services) and the victims’ assistance fund (from the Attorney General) to legislative leadership, the Executive Council, and the Governor. Each report must cover grant terms and compliance, oversight and monitoring, fund disbursement controls, identification of misused expenditures, public reporting of activities, and demographics and outcomes.

This memorandum focuses on Section 1 – the Right-to-Know provision – because that is where any constitutional objection might be directed. The reporting requirements in Sections 2 and 3 are straightforward exercises of legislative oversight authority and raise no legal concern.

1. What Section 1 Does in Plain English

Section 1 says: whoever serves as the coordinator or grantee under the domestic violence grant program – and their subcontractors acting in furtherance of that program – are subject to the Right-to-Know Law (RSA 91-A), with the same exemptions that protect privacy for every other public body in New Hampshire.

The existing confidentiality protections are unchanged. Victim-identifying information remains protected – both under RSA 173-B:22 and under the privacy exemptions of RSA 91-A:5. The amendment simply ensures that financial records, salary data, and compliance documentation related to the expenditure of public money are subject to the same transparency rules that apply to towns, school districts, and every other entity that spends public funds.

2. The Amendment Targets a Function, Not an Organization

RSA 173-B does not mention any specific organization by name. The statute uses functional terms: coordinator, grantees, fund. It describes a job to be done with public money, not a particular entity entitled to do it.

The amendment follows the same approach. It does not target any 501(c)(3) corporation by name or as a class. It says: whoever fills the coordinator and grantee roles under this chapter – whoever that happens to be, now or in the future – follows the same transparency rules as any other entity conducting the public’s business with public dollars.

This is why the amendment is constitutionally safe. It attaches a transparency obligation to a statutory function, not to a particular organization or corporate form.

3. RSA 173-B Is a Government Program, Start to Finish

RSA 173-B:15 through 173-B:22 is not simply a “domestic violence statute.” It is a public spending program. The Legislature created the fund (173-B:15), established a grant program to allocate that money to New Hampshire service providers (173-B:16), directed the Commissioner of Health and Human Services to administer it (173-B:17), prescribed thirteen specific duties for the coordinator (173-B:20), set detailed grantee selection criteria (173-B:21), and capped administrative spending at specific percentages (173-B:17 and 173-B:19).

Everything about this program – the money, the mandate, the structure, the constraints – is a government function. The Legislature built it. The Legislature funded it. The Legislature prescribed how it works. The fact that a private nonprofit happens to be the entity carrying it out does not change what the program is.

4. The “Public Body Established in 2000” Language

The amendment provides that the coordinator, grantees, and subcontractors “shall be subject to the requirements and exemptions of RSA 91-A as a public body established in 2000 pursuant to this chapter.” This language is precise and deliberate.

The grant program was established in 2000. RSA 173-B was enacted by Laws 1999, chapter 240, effective January 1, 2000. The fund, the grant program, the coordinator role, the grantee criteria – the entire statutory framework – came into existence on that date. The phrase “established in 2000 pursuant to this chapter” anchors the 91-A obligation to the program’s statutory origin. It is a statement of historical and legal fact.

“As a public body” sets the standard. By specifying that these entities are subject to 91-A “as a public body,” the amendment makes clear that the full architecture of the Right-to-Know Law applies: open meetings requirements, records access, the exemptions of RSA 91-A:5, and the enforcement mechanisms of RSA 91-A:7 and 91-A:8. There is no ambiguity about the standard. It is the same standard that applies to every town board, school district, and state commission in New Hampshire.

“Requirements and exemptions” is a complete phrase. The amendment does not impose only obligations. It explicitly provides that the same exemptions available to any public body under 91-A are available here. That means RSA 91-A:5, IV – which protects personal, medical, welfare, and other files whose disclosure would constitute an invasion of privacy – applies in full. Victim-identifying information is protected. The amendment gives with one hand the same thing it gives with the other: full participation in the 91-A framework, including its protections.

5. Four NH Supreme Court Cases Already Point to This Result

Over the past fifty years, the New Hampshire Supreme Court has developed a consistent test for deciding when an entity that is not formally part of government is nevertheless subject to the Right-to-Know Law. The Supreme Court calls it the “government function” test. It asks: is this entity conducting the public’s business? Four cases tell the story.

Bradbury v. Shaw, 116 N.H. 388, 360 A.2d 123 (1976)

The mayor of Rochester created an informal advisory committee of local businesspeople. It had no official legal status. But because it was involved in governmental decisions – reviewing city land purchases, negotiating sales of city property, discussing infrastructure – the Court held it was subject to the Right-to-Know Law. The Court established the principle that governs every case since: “The unavoidable fact is that each new arrangement must be examined anew and in its own context.”

Source: https://scholar.google.com/scholar_case?case=5199949993845411203

Union Leader Corp. v. N.H. Housing Finance Authority, 142 N.H. 540, 705 A.2d 725 (1997)

The Housing Finance Authority was a statutorily created entity with a “distinct legal existence separate from the State.” The Court examined its structure and function – it used public financing, performed governmental functions, and worked with state and federal agencies – and held it subject to the Right-to-Know Law despite its legal independence. The parallel to the domestic violence grant program is direct: both involve entities created or authorized by statute to carry out a public purpose using public resources.

Source: https://scholar.google.com/scholar_case?case=13701928427604455317

Professional Firefighters of N.H. v. Local Government Center, 159 N.H. 699, 992 A.2d 582 (2010)

This is the closest analogy. The Local Government Center (LGC) was a private organization, not a government agency. But the Court looked at the facts: it was funded almost entirely by dues paid with taxpayer money; it performed functions the Legislature recognized as governmental; it enjoyed tax-exempt status; and it was managed by public officials. The Court held that LGC and its subsidiaries were subject to the Right-to-Know Law – and that even the individual salary records of LGC employees had to be disclosed. The Court’s reasoning was straightforward: knowing how a public body spends taxpayer money in conducting public business is essential to the transparency of government.

Source: https://scholar.google.com/scholar_case?case=18202996959141745758

Ortolano v. City of Nashua, 343 A.3d 136, 2025 N.H. 23 (2025)

This is the most recent case, decided May 29, 2025. A for-profit corporation argued it was outside the reach of RSA 91-A because it did not fit the specific statutory definition of “public body.” The Supreme Court rejected that argument. It held that the government function test has not been abrogated, and it applies to any entity that does not fit neatly into the statutory definitions. The Court remanded the case for the trial court to apply the government function test.

Source: https://scholar.google.com/scholar_case?case=576344518282328236

What these four cases tell us: If someone with enough time, money, and legal skill filed a Right-to-Know lawsuit against the administrator of this grant program and fought it all the way to the Supreme Court, the Court would very likely hold that the administrator is already subject to RSA 91-A under the government function test. But that litigation path would take three to five years, cost significant money, and require someone with the determination and competence to see it through. The Legislature does not need to wait for that – and should not wait.

6. The Legislature Has the Authority to Do This

Some members may wonder: can the Legislature subject a private 501(c)(3) to the Right-to-Know Law? The answer is yes – and the four cases above prove it.

The New Hampshire Supreme Court has already held that private entities – including nonprofits and for-profit corporations – can be subject to RSA 91-A when they are conducting the public’s business. The Court reached that conclusion on its own, applying judge-made common law principles. If the Court can do it through case-by-case adjudication, the Legislature can certainly do it through statute. The Legislature’s authority over the Right-to-Know Law is at least as broad as the Court’s – and arguably broader, because RSA 91-A is a legislative creation in the first place.

Moreover, this amendment does not single out any particular organization. It attaches a transparency requirement to statutory roles that the Legislature created and funds. The Legislature is not reaching into the private sector and imposing new obligations on a stranger. It is saying: if you are the entity administering our program with our money under our statute, you follow our transparency rules. That is well within the Legislature’s power and raises no serious constitutional concern.

7. Could Someone Challenge This Amendment in Court?

In theory, anyone can challenge anything. In practice, a constitutional challenge to this amendment would have essentially no chance of success. Here is why:

The amendment does not restrict rights – it expands transparency. Part I, Article 8 of the New Hampshire Constitution provides that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” The Constitution favors disclosure. An amendment that increases public access to records about how public money is spent runs with the Constitution, not against it.

The Court has already said this is the right result. All four cases point in the same direction. The Legislature is not doing something novel or aggressive. It is codifying what the Supreme Court has already indicated the law requires. That is the safest kind of legislation there is.

The amendment targets a function, not an identity. It does not name any organization. It does not target nonprofits as a class. It says: whoever performs the coordinator and grantee roles under this chapter is subject to 91-A. If the current administrator were replaced tomorrow by a different entity, the same rule would apply. There is no equal protection problem, no bill of attainder problem, and no due process problem.

Victim privacy is preserved. The amendment explicitly incorporates the exemptions of RSA 91-A, including the privacy protections of RSA 91-A:5, IV. The existing confidentiality provision of RSA 173-B:22 remains in full force. No victim-identifying information is exposed by this amendment. The only records that become subject to public scrutiny are the financial, operational, and compliance records that show how public money is being spent – the same records that are public for every other entity that receives and administers public funds in New Hampshire.

The Bottom Line

The Legislature built the domestic violence grant program from the ground up: the fund, the duties, the spending caps, the selection criteria. It constructed an entire government program – except it did not make clear that the entities administering the program have to let the public see how the money is being spent.

The NH Supreme Court would very likely fix this if someone brought the right lawsuit and fought it for three to five years. The Legislature can fix it now, with HB1675 (as amended), with no constitutional risk and no cost to the State.

Amendment 2026-0946h does not create a special rule. It does not single out any organization. It does not weaken any privacy protection. It simply says: public money, public accountability. That is what the Right-to-Know Law has always meant. HB1675 (as amended) just makes it explicit.