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For the Public
Your Rights Under the Right-to-Know Law This pamphlet is based on NH Law in effect at the time of publication. It is issued as a public service for general information only. It is not a substitute for specific legal advice. This public information pamphlet discusses the rights of citizens to access public meetings and records under New Hampshire and federal law. AUGUST 2003 Principles Behind The Law
The purpose of New Hampshire's Right-to-Know Law, RSA 91-A, is to make state and local government accountable to the people by requiring that meetings and records be open to the public as much as possible. The law has a broad application and covers the records and public meetings of government agencies, including:
any board, commission, agency or authority of any county, municipality, school district, or any other political subdivision; any board or commission of any state agency or authority, including the board of trustees of the state university system; the governor and council; the legislature; and advisory committees established by any of the foregoing public bodies.
The Right-to-Know Law does not apply to the New Hampshire judiciary. Its proceedings and records, however, are presumptively open to the public under Petition of Keene Sentinel, 136 N.H. 121 (1992). There are certain exceptions to the general principles of openness and disclosure. This pamphlet will provide an outline of New Hampshire's Right-to-Know Law including the exceptions provided in that law. Other specific exceptions to the law may be provided under other provisions of New Hampshire or federal law. What Is A Public Meeting?
A meeting must fit the definition of a public meeting before it is subject to the Right-to-Know Law. A public meeting occurs whenever a quorum meets to discuss or act on any matter within the power of the public body. A quorum means a majority of the members of the body, unless there is a law with a different number for a quorum specified. Public meetings do not include chance meetings or social gatherings, as long as there is no discussion of official business. Meetings relating to strategy or negotiations regarding collective bargaining and consultations with legal counsel are also excluded from the definition of a public meeting.
Notice Requirements For Public Meetings
The Right-to-Know Law sets minimum notice requirements for public meetings: the time and place of the meeting must be posted in two appropriate public places or printed in a newspaper of general circulation in the city or town at least 24 hours (excluding Sundays and legal holidays), before the meeting. Stricter notice requirements may be set by another specific law. The notice requirements do not apply if the meeting is an emergency. An emergency means a situation where the presiding officer of the public body finds that immediate undelayed action is necessary. However, even when an emergency meeting is called, the presiding officer must still inform the public of the meeting, using whatever means are available. These notice requirements do not apply to a legislative committee meeting. Notice requirements for such meetings are set by legislative rule.
Rights Of The Public At Public Meetings
Any member of the public has these rights at any public meeting, although other local or state law or rule may provide for broader rights as follows:
No vote may be taken by secret ballot, except at town meetings, school district meetings, and elections. Any person may take notes or record the meeting using a recording device such as a tape recorder, camera, or video equipment. The minutes of the meeting must be open to public inspection within 144 hours (6 days) of the meeting. The minutes must include the names of the members present, the persons appearing before the body, a brief description of the subject matter discussed, and all final decisions. If the meeting was an emergency meeting, the minutes must spell out the need for the meeting.
When Can Members Of The Public Be Excluded From A Public Meeting?
At a public meeting, a public body may vote to meet in nonpublic session, but only for certain specific purposes. A public body may not go into nonpublic session (formerly called "executive session") simply for the purpose of deliberation, unless the matter being discussed is one of the allowable purposes for a nonpublic session. A motion to go into nonpublic session must state the specific section of the law that authorizes the public body to exclude the public. The vote on the motion must be by roll call and requires a majority vote of the members present. The following are matters which may be discussed and acted upon in nonpublic session:
the dismissal, promotion, compensation, or disciplining of any public employee, or the investigation of any charges against the employee, unless the employee affected has a right to a meeting and requests that it be open; the hiring of any person as a public employee; matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting; consideration of the acquisition, sale or lease of property which, if discussed in public, would likely benefit someone whose interests are adverse to those of the general community; consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or any of its members because of that person's membership in such body, until the claim or litigation has been fully acted on by the courts or otherwise settled; consideration of applications by the adult parole board; consideration of security-related issues bearing on the immediate safety of security personnel or inmates at county correctional facilities; consideration of applications by the New Hampshire Business Finance Authority under RSA 162-A:7-10 and 13, if consideration in public would cause harm to the applicant or would inhibit full discussion of the application; consideration of matters relating to the preparation and carrying out of emergency functions developed by state or local safety officials to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.
When Must Nonpublic Session Minutes Be Made Public?
Minutes taken and decisions made at a nonpublic session must be disclosed within 72 hours (3 days) of the meeting, unless 2/3 of the members vote that the disclosure of the information would be likely to affect adversely the reputation of any person (other than a member of the public body)or to render the proposed action ineffective, or pertains to the preparations and carrying out of emergency functions to thwart a deliberate act intended to result in widespread or severe damage to property or widespread injury or loss of life. The minutes can be made public in the future if a majority of the members votes that the danger no longer exists.
What Is A Public Record?
Generally speaking, public records include all records kept by a public body in any form, including documents, books, papers, recordings, or photographs, and records of payments made to an employee of a public body (or his or her agent) upon resignation, discharge or retirement where the payment is in addition to regular salary or fringe benefits. In the interests of confidentiality, there are certain records to which the general public does not have access. These are:
personal school records of pupils, including the names and addresses of the pupils and their parents; teacher certification records, provided that the Department of Education shall make available teacher certification status information; records pertaining to internal personnel practices. However, salaries and lists of employees may have to be disclosed; confidential, commercial or financial information if the benefits of disclosure are outweighed by the benefits of non-disclosure; data used to administer an examination for licensing or employment or an academic examination; records relating to library users, videotape sales or rentals, or other files whose disclosure would be an invasion of privacy; personal medical or welfare information; written legal advice; open police investigative files and material which may be used at trial; records of grand juries and regular juries (but not their verdicts) and parole and pardon boards; records pertaining to the preparation and carrying out of emergency functions to thwart a deliberate act intended to result in widespread or severe damage to property or widespread injury or loss of life; juvenile court records (delinquency, child abuse/neglect, Children in Need of Services, adoption and termination of parental rights proceedings); certain criminal records including applications for search, arrest and wire tap warrants; and certain vital records with respect to which specific laws and rules govern who may have access to these records and what information is to be released.
Access To Public Records
Any citizen may examine public records during the regular or business hours of the public body at its place of business. The right to examine the records includes the right to take notes or photographs or to make abstracts or photocopies. A public body may charge the actual cost of the photocopy, if a photocopy machine is used, or any other fee required by law.
If the public body maintains records in a computer storage system, it may provide a printout of any record reasonably described and which can be produced in a manner that does not reveal confidential information. With respect to data in a computer storage system, the public body is not required to compile such data into a format that does not already exist. If the information has been compiled in a convenient form, the public body cannot refuse to supply it in that form, although the public body does not have to compile the information for the person making the request. If a public body is unable to make a record immediately available for inspection, it has five business days to either: (a) make the record available; (b) deny the request in writing, giving the reasons; (c) give written acknowledgment of the request and a statement of the time needed to grant or deny the request. Remedies
Any person denied access to a public meeting or public record may bring a lawsuit under the Right-to-Know Law. If the court finds that the lawsuit was necessary in order to make the information available, and the person who denied the access should have known that the law required the release of the information, the person who brought the lawsuit may be awarded reasonable attorney's fees and costs. Conversely, attorney's fees may be awarded to a public body if the court finds that the lawsuit was instituted in bad faith or is frivolous, unjust or oppressive. If circumstances justify it, the court may invalidate actions taken at an improperly held meeting or issue an order to prohibit future violations.
A person who knowingly destroys any information with the purpose of preventing such information from being inspected or disclosed in response to a request under the Right-to-Know Law is guilty of a misdemeanor. For further information about the Right-to-Know Law, go to the New Hampshire Department of Justice Web site at http://doj.nh.gov/publications/right_to_know.html - "Right-to-Know Memorandum."
Access To Federal Records
So far, this pamphlet has described citizens' rights to attend meetings and review records of state and local governmental bodies. Federal laws also exist that allow access to records of federal agencies. The principal law is the Freedom of Information Act (FOIA). Like the state Right-to-Know Law, it allows open access to federal records, subject to similar exceptions.
The FOIA exemptions apply to: (1) classified national defense and foreign relations information; (2) internal agency personnel rules and practices; (3) material prohibited from disclosure by another law; (4) trade secrets and other confidential business information; (5) certain inter-agency or intra-agency communication; (6) personnel, medical, and other files involving personal privacy; (7) certain records compiled for law enforcement purposes; (8) matters relating to the supervision of financial institutions; (9) geological information on oil wells. The FOIA does not apply to Congress or the federal courts. Those branches of government have their own rules of access to documents which generally allow free access. To make a FOIA request you need to determine which federal agency or agencies may have the records you are looking for. The telephone book contains a list of federal agencies with offices in your area. The reference department at your local library can provide you with the United States Government Manual, which lists every federal agency and describes its duties and operations. You can also call the local Federal Information Center at (800) 347-1997. FOIA requests must be in writing. Your letter and envelope must clearly state that you are making a Freedom of Information Act Request. Be as specific as possible describing the records you seek. You do not have to indicate why you want the records, but doing so is often helpful to the agency in determining what records you want. Sometimes this can make the difference between the agency giving you the records or claiming an exemption from disclosure. If your request takes more than two hours of search time or involves copying more than 100 pages, the agency may charge you for the actual cost of searching for and copying the documents you request. You can request a waiver or reduction of any fees charged, if you can show that release of the information you seek will contribute significantly to public understanding of the operations or activities of government. The agency has no obligation to summarize, analyze or answer questions about its records. If your request is denied, in whole or in part, you should promptly notify the agency whether you want to appeal its decision. It is helpful to point out why you feel its decision was wrong. The agency usually has 20 days to respond. If it still denies your request, you can appeal to the federal district courts, where the agency has to prove that the withheld records fall within the exemptions under the FOIA. If you win a substantial portion of your case, the court may require the government to reimburse your court costs and attorney's fees. For further information about FOIA, go to http://www.rcfp.org/foiact/index.html - "How to Use the FOIA Act."
You also have the right under the Federal Privacy Act to obtain information about yourself, on file at federal agencies, if that information is indexed under your name or a personal identification number. Unlike a FOIA request, you cannot be charged for such a search. You have the right to dispute personal file information about you that is inaccurate and to have the agency correct it. There are exemptions from disclosure and rights of appeal similar to the FOIA.
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