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Bar Journal - March 1, 2002

What Do You Have The Right to Know?

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There is a law in New Hampshire known as the Right-to-Know Law. It is RSA 91-A. The law specifies the procedure for the public to gain access to public records. Despite the benefits of the law, there are many restrictions on citizens who want to access detailed records of public agencies and municipalities.

The New Hampshire Constitution itself provides that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. The New Hampshire Supreme Court has noted that it resolves questions relating to the Right-to-Know Law with a view to providing the "utmost information" in order to satisfy the objectives of the law. Union Leader Corp. v. N.H. Housing Fin. Authority, 142 N.H. 540, 546 (1997). The Court broadly construes the sections regarding disclosure of documents and construes the exceptions to disclosure restrictively. Public documents, even if not in their final form, are subject to the Right-to-Know Law. Henry F. Goode v. NH Office of Legislative Budge Assistant, 145 N.H. 451 (2000).

As a general rule, the law requires governmental bodies to provide access to meetings and access or copies of all records. The law applies to the State and most state committees as well as counties and towns and school districts. The law requires that if one of these public bodies has a meeting certain procedural requirements must be satisfied. Notice must be provided and minutes must be recorded.

The law also allows any citizen to inspect all public records of these bodies. The motives of the person seeking disclosure are irrelevant. There are, however, some specific records which are excluded from the definition of public records (privileged material, grand jury records, internal personnel practices).

The "immediately available" language in RSA 91-A:4(IV) refers to when a document must be provided not whether it must be disclosed. If the document is available and it is a public record, it must be made available. If it is not available for immediate release, the agency has five days to produce it or provide a written response. RSA 91-A:4(II) requires disclosure of notes, materials, tapes or other sources used for compiling minutes of meetings.

If a Town or agency refuses to comply with the law, a citizen can file a court action and request attorneys fees. The law does not provide a specific remedy for the situation where an agency fails to timely respond to a request for documents. The general rule to warrant an award of attorneys' fees is that the agency "knew or should have know that its conduct violated the statute." N.H. Challenge v. Commissioner, N.H. Dept. of Educ., 142 N.H. 246, 249 (1997). It is often difficult to prove that the agency should have known that it was violating RSA 91-A.

The New Hampshire Attorney General's office publishes an excellent Guide to the Right-to-Know Law. Copies can be requested by writing to: The Attorney General's Office, 33 Capitol Street, Concord, NH 03301-6397.

The Supreme Court recently ruled that the law requires an agency to maintain public records in a manner that makes them available to the public. The agency is not obligated to create any new documents or compile data in a certain format. Hawkins v. NH Dept. of Human Services (decided December 31, 2001).

The Court also ruled that cost is not a factor in determining whether the information is a public record. The Court has not yet decided who pays for the cost of producing the information existing in a certain form. If an agency uses a photocopy machine to copy the records, the person requesting the copy may be charged the actual cost of providing the copy.

The Rockingham Superior Court also recently ruled that RSA 91-A encompasses internet sites or addresses visited by computer users within a school district. James M. Knight v. SAU 16. Rockingham County Superior Court, Docket No.: 2000-E-307. The Court first noted that the Internet History Log File was a public record. The Court found that whatever confidential data existed on the log files could easily be redacted.

LIMITATIONS ON THE RIGHT-TO-KNOW LAW

What if a policeman in your town is alleged to have roughed up two citizens and those citizens filed suit against the Town. If those cases were settled by the New Hampshire Municipal Association Property Liability Trust, the public will never know the details of that settlement. If your town is insured by the Trust (which most Towns are), the payments made by the Trust to settle claims against municipalities cannot be disclosed. Although this confidentiality seems to contravene the purposes of the Right-to-Know Law, it is the current status of the law.

The same Legislature that granted the citizens the Right-to-Know Law also passed RSA 5-B:7. That law provides that settlements made by the NH Municipal Trust be kept confidential. Despite requests, Judges have refused to grant requests for disclosure of settlements made by the Trust.

If the Town has no involvement with the settlement and pays no funds, the details of the settlement will never be known by the citizens. See Merrill v. Town of Seabrook, Rockingham Superior Court, 1997-E-422. If, however, the selectmen review the settlement, or vote on whether to settle the case, any records relating to those decisions could be requested pursuant to RSA 91-A.

In an unusual case involving the Town of Tilton, the Town settled a case with a former employee and a Right-to-Know request was filed with the Town. The Town provided a copy of the release signed by the Plaintiff and a copy of a Town check made payable to the Plaintiff in the amount of $1,000.00 and the Town's Membership Agreement with the New Hampshire Municipal Association Property Liability Trust Inc. A newspaper report was then published suggesting that the case was settled for a total of $1,000. The actual settlement was higher and the remainder of the settlement was paid by the Municipal Trust. The Court ruled that the specifics of the trust's involvement with the settlement were to remain confidential. See Pierce v. Town of Tilton. Belknap Superior Court, 1995-C-258.

If, however, a Town or City which is not a member of the Trust settles a lawsuit, the terms of that settlement can be obtained pursuant to RSA 91-A. Even if the City and the Plaintiff entered into a confidentiality agreement as part of the settlement, the details of the settlement are subject to the Right-to-Know Law. See City of Manchester v. Roy. Hillsborough Northern District, 1995-E-0244. In Roy, the Court ordered the City to disclose to a newspaper a copy of the settlement agreement and the amount of money the City paid the Plaintiff as financial contributions are public records since they are documents in the hands of officers of the City. Menge v. Manchester, 113 N.H. 533, 537 (1973).

The Superior Court concluded that the agreement and monetary payment were not exempt disclosures under RSA 91-A:5. The rationale for this conclusion is that the benefits of disclosure to the public outweigh the benefits of nondisclosure.

The Supreme Court has previously ruled that taxpayers were entitled to full disclosure of public school teachers salaries. Mans v. Lebanon School Board, 112 N.H. 160, 163 (1972). The Hillsborough Superior Court has also previously ruled that the terms of a settlement agreement between the Town of Litchfield and a former employee must be disclosed because the public had a interest in the use of public funds. Telegraph Publishing Co., Inc. v. Town of Litchfield, Hillsborough Superior Court, Docket No.: 1994-E-341.

A Rockingham County Superior Court judge has also ruled that the confidentiality provisions of a Settlement agreement between the Town of Hampton and a former employee were unenforceable. Rockingham County Newspapers v. Town of Hampton, Rockingham County Superior Court, Docket No.: 1996-E-216. The Court noted that there was an overriding public interest in gaining knowledge of how and why tax dollars were spent in connection with the settlement.

Finally, a Hillsborough, Southern District Superior Court judge ordered the City of Nashua to disclose records relating to settlement of a case alleging civil rights violations by police officers. Telegraph Publishing Co. v. City of Nashua, Hillsborough Southern, Docket No.: 1998-E-474. The Court found that the public has a compelling interest in knowing about allegations that police offices have engaged in unconstitutional conduct and a similar compelling interest in knowing the event of financial impact of a settlement. The interest discovering improper conduct by officials is present regardless of whether the Town pays the settlement or an insurance company pays the settlement.

The following is another example of the limitations of the Right-to-Know Law. If a citizen calls the police for help and the police decide not to respond, if that person then requests a record of the call for assistance, RSA 106-H:14 provides that any "information" or "records" compiled under that section shall not be considered a public record for purposes of the Right-to-Know Law. Towns have used this law to block disclosure of computer dispatch logs recording calls made to the station and the dispatching of units.

The Right-to-Know Law also does not apply to a legislative body sitting as a Court such as the recent Senate trial of Chief Justice Brock. See Soltani, et al. v. Hollinsworth, Merrimack Superior Court, Docket No.: 2000-E-240. One would think that such an important aspect of government as an impeachment trial would be open and subject to the Right-to-Know Law.

The Legislature has also passed another law which directly limits access to Court proceedings. RSA 506:7 (VI) requires that hearings relating to Powers of Attorney shall be closed unless good cause is shown. RSA 506:7 (VI) creates a presumption in favor of closed hearings and a presumption in favor of keeping records confidential. This presumption conflicts with the holding in Petition of Keene Sentinel, 136 N.H. 121 (1992) and the NH Constitution Part 1, Article 8. This issue presently on appeal to the NH Supreme Court. Bertha Chapman, Administratrix v. Charles G. Douglas, III. Coos County Probate Court, Docket No.: 1998-240.

 

The Author

Attorney Kenneth D. Murphy is a partner with the firm of Coughlin, Rainboth, Murphy & Lown, Portsmouth, New Hampshire.

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