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Bar Journal - Spring 2004

The Right to Know Law

By:
 

RSA 91-A, commonly known as the "Right-to-Know Law," governs access to public records in the State of New Hampshire. The preamble to RSA 91-A states:

Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. The Right-to-Know Law was intended to increase public access to governmental proceedings in order to augment public control of government and encourage administrative responsibility.1

The Right-to-Know Law provides access not only to documents, but also to meetings and other government proceedings. It outlines circumstances under which access is granted; and it provides exemptions in certain circumstances.

For over 30 years, the Attorney General’s Office has provided guidance in complying with RSA 91-A to state and local officials, the public and the media, in order to promote the principles of openness and access to state and local government. This article will provide a general overview of the statute as it has evolved through amendment and caselaw over the years.

I. SCOPE OF THE RIGHT-TO-KNOW LAW

The Right-to-Know Law establishes certain procedures to be followed by governmental bodies and certain rights of access by members of the general public to the meetings and records of those bodies. The Right-to-Know Law expressly applies to the Legislature, the Governor’s Council, the Board of Trustees of the University System of New Hampshire, and any board, commission, agency or authority of any county, town, municipal corporation, school district, school administrative unit, charter school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.2

RSA 91-A has been construed by the New Hampshire Supreme Court to apply to all state executive branch departments.3 Several state statutes create bodies, corporate and politic.4 Some of the statutes specify whether the entity is or is not subject to the Right-to-Know Law, but others are silent on this point. Absent express statutory language, applicability of the Right-to-Know Law will depend on the nature and extent of the governmental functions performed.

The New Hampshire Supreme Court has not reported any decisions holding that the courts of this State are subject to RSA 91-A. The court system has established procedures of its own for providing public access to its records and proceedings.5

II. PUBLIC MEETINGS AND PUBLIC PROCEEDINGS

The definitional sections of the Right-to-Know Law are critical. Set forth below are a number of the definitions used to define the scope of the statute.

Public Proceedings and Meetings. Public proceedings are defined as "the transaction of any functions affecting any or all citizens of the State."6 Meeting is defined as the convening of "a quorum of the membership of a public body . . . to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power."7

Quorum Requirements. The Right-to-Know Law provides that "all public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies."8 A majority of agency members constitutes a quorum absent some other controlling statute.9 When less than a quorum convenes, there is no meeting within the meaning of the Right-to-Know Law unless the group is a committee of the larger body. In that case, the Right-to-Know Law applies if a quorum of the subcommittee has convened.

Exemptions. Certain gatherings of members of a public body are exempt from RSA 91-A. Specifically, the Right-to-Know Law exempts "any chance meeting or social meeting, not planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made."10 Additionally, the Right-to-Know Law excludes strategy or negotiations with respect to collective bargaining and consultation with legal counsel.11

Notice. If the governmental body is subject to the Right-to-Know Law and intends to convene a meeting within the meaning of the Right-to-Know Law, notice must be given. Notice of the time and place of any meeting (including non-public sessions) must be posted in appropriate places 24 hours (excluding Sundays and legal holidays) in advance of the meeting, or printed in a newspaper of general circulation in the city or town at least 24 hours before the meeting, excluding Sundays and holidays.12

If the need for an emergency meeting arises, the chairman or presiding officer of the public body "shall employ whatever means are available to inform the public that a meeting is to be held."13

Failure to notify the public properly of a meeting subjects the agency to possible judicial sanctions, including an order declaring the meeting invalid, an order enjoining agency actions or practices, and an order assessing legal costs and fees.14

Minutes. Minutes of regular hearings must be recorded and must include the names of the members present, the names of persons appearing before the body, a brief description of each subject discussed, and a description of all final decisions made, including all decisions to meet in non-public session.15 Minutes are to be "promptly recorded and open to public inspection within 144 hours of the public meeting."16 There are no exceptions to the minute requirements for open meetings.

The right of the public to inspect public records, including minutes of meetings, specifically includes inspection and copying, after the completion of a meeting and during regular business hours of all notes, materials, tapes or other sources used by an agency to compile the minutes of a meeting.17 An agency is not obligated to retain notes, tapes or other draft materials used to prepare minutes after final minutes have been approved, prepared and filed.18

Non-Public Sessions. A body or agency may exclude the public and hold a non-public session in certain circumstances. A body or agency may exclude the public only if a recorded role call vote is taken on a motion to go into such a session, stating the statutory basis for the non-public session. Allowable grounds for holding a non-public session are limited to consideration of the following matters:

  1. the dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (i) has a right to a meeting and (ii) requests an open meeting in which case the request shall be granted;19
  2. the hiring of any person as a public employee;
  3. matters which if discussed in public, likely would affect adversely the reputation of any person other than a member of the body or agency itself unless such person requests an open meeting;
  4. consideration of the acquisition, sale or lease of real or personal property, which if discussed in public, likely would benefit a party or parties whose interests are adverse to those of the general community;
  5. consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the body or agency or any subdivision thereof, or against any member thereof because of his membership in such body or agency, until the claim or litigation has been fully adjudicated or otherwise settled;
  6. considerations by the Adult Parole Board under RSA 651-A;
  7. consideration of security-related issues bearing on the immediate safety of personnel or inmates at the county correctional facilities by facility superintendents or their designees;
  8. consideration of applications by the Business Finance Authority under RSA 162-A:7-10 and RSA 162-A:13, where the consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application; and
  9. consideration of matters relating to the preparation for and caring out of emergency functions relating to terrorist activity.

Just as with regular meetings, the Right-to-Know Law requires minutes of non-public sessions to be kept and a record of all actions taken" to be made available for public inspection", RSA 91-A:3,III. Minutes of non-public sessions must be disclosed within 72 hours unless two-thirds of the members present determine that divulging some of the information would likely affect adversely the reputation of any person other than a member of the body or agency itself; or render the proposed action ineffective; or the proposed action pertained to terrorism. The determination by two-thirds of the members present not to divulge the information is a "decision" which must be recorded together with the reasons for non-disclosure.

Records. The Right-to-Know Law does not define public record. It does provide that "every citizen . . . has the right to inspect all public records."20 Case law indicates that the term refers to specific, preexisting files, documents, or data in an agency’s files, and not to information that might be gathered or compiled from numerous sources.21 The New Hampshire Supreme Court has determined that certain records are public. These include individual salaries and employment contracts of public officials and employees, including school teachers,22 certain law enforcement investigative records,23 and state agency budget requests and income estimates submitted pursuant to RSA 9:4, 5 to the Commissioner of Administrative Services.24 Additionally, RSA 91-A was recently amended to state that records of any payment in addition to regular salary and accrued vacation, sick, and other leave made to any employee of any public agency or body listed in RSA 91-A:1-a, I-4, or to an employee’s agent or designee, upon the employee’s resignation, discharge, or retirement, is a public record.25

Lastly, public documents stored in computers shall be available in the same manner as records stored in public files if access to such records would not reveal work papers, personnel data or other confidential information.26

III. EXEMPTIONS FROM DISCLOSURE.

The following records are specifically exempted from the requirement of public access: (1) records of grand and petit juries;27 (2) parole and pardon boards;28 (3) personal school records of pupils;29 (4) records pertaining to internal personnel practices; (5) confidential, commercial or financial information; (6) test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; (7) personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute an invasion of privacy;30 (8) records pertaining to matters relating to the preparation for and the carrying out of all emergency functions, including training to carry out such functions that are directly intended to thwart terrorist activity.

In determining whether or not these exemptions apply, the New Hampshire Supreme Court has stated that invasion of privacy will not be so broadly construed as to defeat the purpose of the Right-to-Know Law. The Court has developed a balancing test to determine whether public inspection of requested information would constitute an invasion of privacy. The Court weighs the benefits of disclosure to the public against the benefits of non-disclosure to the party affected.31

The New Hampshire Supreme Court has also narrowly construed the term "confidential." A public body must have a basis for invoking an exemption and may not simply mark a document "confidential" in an attempt to circumvent disclosure. In Union Leader v. New Hampshire Housing Finance Authority32 the Court provided some guidance. It stated that the following standard test, while not being exclusive, can be used to determine whether or not a document is confidential. The Court stated that the party resisting disclosure must prove that disclosure is likely to: (i) impair the State’s ability to obtain necessary information in the near future; or (ii) cause substantial harm to the competitive position of the person from whom the information was obtained.33

Law Enforcement Investigative Files.

In Lodge v. Knowlton,34 the New Hampshire Supreme Court adopted relevant portions of the federal Freedom of Information Act35 for determining whether police investigative records are subject to disclosure. These records may be withheld if the agency can prove their production of these records would: (1) interfere with enforcement proceedings; (2) deprive a person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of privacy; (4) disclose the identity of a confidential source; (5) disclose investigative techniques or procedures; or, (6) endanger the life or physical safety of law enforcement personnel.

IV. REQUIRED ACCESS

Any citizen has the right to inspect all non-exempt public records during the regular business hours on the regular business premises of the public body.36 A citizen does not have to offer a reason or demonstrate a need to inspect the documents. If a record is public, it must be disclosed regardless of the motive for the request. Whenever access to public records is requested, the agency must make a diligent effort to produce the record. An agency is not required to create a record where one does not exist. If public information is requested in a format that does not exist, the agency is not required to create that format.37

If the requested records are not immediately available, the agency is required to, within five business days, make the record available, deny the request in writing with reasons, or furnish a written acknowledgement of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.38

Public bodies are not required to make copies of records for citizens. If the agency uses or has available a photocopying machine or other device maintained for use by the agency, the agency may charge the actual cost of providing the copy unless another fee has been established by law.39

V. REMEDIES

RSA 91-A:7 provides that a petition requesting an injunction against a public body may be filed with any clerk or Justice of the Superior Court. The petition need only state facts constituting a violation of the Right-to-Know Law and need not adhere to all the formalities normally required of court pleadings. These petitions are to be given priority on the courts calendar. Ex parte relief may be granted when time is of the essence.

RSA 91-A:8 provides that attorneys fees and costs may be awarded against a body, agency or person violating the Right-to-Know Law if the court finds (i) that the lawsuit was necessary in order to make the information available or the proceeding open; and (ii) that the body, agency or person knew or should have known that the conduct engaged in was a violation.

A court may invalidate an action taken at a meeting held in violation of the Right-to-Know Law.40 A court may also order summary disclosure when a public agency has improperly refused to disclose its records. Summary disclosure may also be appropriate when an agency refuses to provide an index when ordered by the court to determine whether documents are exempt from the Right-to-Know Law.41

Lastly, RSA 91-A:9 provides that a person is guilty of a misdemeanor who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter. If a request for inspection is denied on the grounds that the information is exempt under this chapter, a request of the material shall be preserved for 90 days or while any lawsuit pursuant to RSA 91-A:7-a is pending.

CONCLUSION

In the recent legislative session, Chapter 287, an act establishing a Right-to-Know Study Commission and relative to meetings open to the public, was passed. The purpose of Chapter 287 is that the General Court establish a commission to study clarifying the Right-to-Know Law in light of the Supreme Court’s December 31, 2001 decision in Hawkins v. New Hampshire Department of Health & Human Services increasing the use of electronic communication in the transaction of governmental business. The General Court recognizes that guidance is needed for all government officials, as well as for members of the public regarding what meetings and what documentation are considered subject to RSA 91-A.

Chapter 287 provides that the Commission shall study (i) the need for disclosure requirements or guidelines for e-mail and other electronic communication occurring between and among the state, county, and local government appointed and elected officials and employees of governmental entities; (ii) the need for disclosure requirements or guidelines for electronic communication with constituents of state, county, and local appointed and elected officials and employees of governmental entities; (iii) archival requirements for electronic documents; (iv) the status of proprietary data within the definitions of the Right-to-Know Law; (v) the ability to recover costs relative to the retrieval of electronic files and communications; (vi) issues relative to public records posted to websites of governmental entities; (vii) whether a member of a body subject to the Right-to-Know Law may participate in a meeting by teleconference or other electronic means; (viii) the extent to which the public will be provided access to stored computer data under the Right-to-Know Law; and, (ix) any other matter deemed relevant by the Commission.

Given this charge, it is apparent that the Right-to-Know Law may be substantially amended in the relatively near future, especially with regards to electronic communications. The Attorney General’s Office will be ready to provide guidance to public officials and members of the public once these amendments come into effect.

ENDNOTES

  1. Society for the Protection of New Hampshire Forests v. Water Supply and Pollution Control Commission, 115 N.H 192 (1975).
  2. RSA 91-A:1-a.
  3. Lodge v. Knowlton, 118 N.H. 574, 576 (1978).
  4. See RSA 162-A:3 (Business Finance Authority); RSA 204-C (Housing Finance Authority); RSA 35-A (Municipal Bond Bank); and RSA 12-G (Pease Development Authority).
  5. See Petition of Keene Sentinel, 136 N.H. 121 (1992).
  6. RSA 91-A:1-a.
  7. RSA 91-A:2,I.
  8. RSA 91-A:1,II.
  9. RSA 21:15.
  10. RSA 91-A:2,I(a).
  11. RSA 91-A:1,I(b); RSA 91-A:2,I(c).
  12. RSA 91-A:2,II.
  13. RSA 91-A:2,II.
  14. RSA 91-A:7; RSA 91-A:8.
  15. RSA 91-A:2,II.
  16. RSA 91-A:2,II.
  17. RSA 91-A:4,II.
  18. Brent v. Paquette, 132 N.H. 415, 420 (1989).
  19. RSA 91-A:3,II(a).
  20. RSA 91-A:4,I.
  21. Brent v. Paquette, 132 N.H. 415, 426 (1989).
  22. Mans v. Lebanon School Board, 112 N.H. 160 (1972).
  23. Lodge v. Knowlton, 118 N.H. 574 (1978).
  24. Chambers v. Gregg, 125 N.H. 478 (1992).
  25. RSA 91-A:4,I-a.
  26. RSA 91-A:4,V.
  27. RSA 91-A:5,I.
  28. RSA 91-A:5,II.
  29. RSA 91-A:5,III.
  30. RSA 91-A:5,V.
  31. See Mans v. Lebanon School Board, supra.
  32. 142 N.H. 540 (1977).
  33. Union Leader v. New Hampshire Housing Finance Authority, 142 N.H. 540 (1997).
  34. 118 N.H. 574 (1978).
  35. 5 U.S.C. 552 (b)(7).
  36. RSA 91-A:4,I.
  37. Brent v. Paquette, 132 N.H. 415 (1989).
  38. RSA 91-A:4,IV.
  39. RSA 91-A:4,IV.
  40. RSA 91-A:8l,II.
  41. Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540 (1997).

Author

Attorney Daniel J. MullenAttorney Daniel J. Mullen is an Associate Attorney General at the Department of Justice, Concord, New Hampshire.

 

 

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