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Bar Journal - Fall 2007

Electronic Records and Communications Under New Hampshire’s Right-to-Know Law

By:


New Hampshire’s Right-to-Know Law, RSA chapter 91-A, requires that “public records” be made available to any person upon request for inspection and copying,1 and that meetings of “public bodies” be open to the public.22 R.S.A. 91-A:2.  The statute was enacted in 1967, at a time when most government records were still created using manual typewriters or pen and ink. Although the statute has been amended many times since then, little has been done to address the technological changes of the last 40 years.

     

In Hawkins v. Department of Health & Human Services,3 the New Hampshire Supreme Court addressed, in a limited manner, the applicability of the Right-to-Know Law to public records stored in electronic form. At the end of its opinion, the Court stated:

The issues in this case foreshadow the serious problems that requests for public records will engender in the future as a result of computer technology. Unless the legislature addresses the nature of computerized information and the extent to which the public will be provided access to stored data, we will be called upon to establish accessibility on a case-by-case basis. It is our hope that the legislature will promptly examine the Right-to-Know Law in the context of advancing computer technology.4

     

Some members of the legislature—and in particular a legislatively created Right-to-Know Law Oversight Commission—have heeded that call and have been trying for several years to address the questions described by the court in Hawkins. Unfortunately, for various reasons, those efforts have not yet led to the enactment of legislation. Consequently, applying the statute to current technology remains a difficult task.

     

There are two primary issues of concern:  (1)  What are the requirements regarding retention and disclosure of electronic records (including e-mail) under the Right-to-Know Law? and (2)  To what extent do e-mail and other electronic communications constitute “meetings” that are subject to the law’s open-meeting requirements?

 

I. Electronic Records


The Right-to-Know Law states:

Every citizen during the regular or business hours of all [public] bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies, and to make memoranda, abstracts, and photographic or photostatic copies of the records or minutes so inspected [subject to certain exceptions].5

A. What is a Public Record?

Curiously, the statute has never defined “public record,”6 and the New Hampshire Supreme Court has never provided a comprehensive definition. It has defined the term only by its rulings on whether specific items are or are not subject to disclosure.7 However, the term has generally been understood to include any record created by, or in the custody of, a public entity and relating to that entity’s official function. House Bill 377, introduced in the legislature’s 2007 session, would have codified that definition as follows:  “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.”8    The word “information,” in turn, would have been defined as “knowledge, opinions, facts or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic or other physical form.”9 Those definitions together, although not formally adopted by the legislature,10 provide a good working definition of the term “public record,” consistent with court interpretations and probably with the understanding of most attorneys familiar with the statute.

 

B.   Electronic Records Under the Right-to-Know Law

The only mention of electronic records in the existing law is in RSA 91-A:4, V, added in 1986, which states that “any body or agency which maintains its records in a computer storage system may, in lieu of providing original documents, provide a printout of any record reasonably described.”  This makes it fairly clear that electronic records are subject to the law, and no one has ever seriously questioned this.

     

If there ever was any doubt on this point, the Supreme Court answered it in Hawkins. The plaintiff in that case had requested records of dental services provided to Medicaid recipients under the age of 21, and of Medicaid reimbursement payments made to their dental providers.11 The Department of Health and Human Services (“HHS”) argued that the requested information was stored in its claims processing system as discrete bits of information, and therefore did not constitute existing documents subject to disclosure. HHS also asserted that its programs were not capable of compiling the information into the format requested.12

     

The Court ruled that “a Medicaid claim form does not lose its status as a public record simply because it is stored within a computer system.”13 It held that the law does not require a public agency to “create new records”; thus, in this case, it did not require HHS to compile a document specifically identifying Medicaid services provided to recipients under the age of 21, if HHS did not maintain its records in that manner. However, the law “does . . . require that public records . . . be maintained in a manner that makes them available to the public.” HHS, therefore, was required to make the records available in their original form.14


Once it is accepted that electronic records are subject to disclosure just as paper records, a number of questions follow. The answer to many of these questions is, in theory, straightforward:  treat electronic records in the same manner as paper records. In practice, however, the answers can be more complicated. Setting aside, for now, the vexing issue of e-mail and similar electronic communications, let us address the basic issues.

           

1. Creation and Storage of Electronic Records. What are the acceptable methods for creating and storing electronic records?  For the most part, this is not a Right-to-Know Law question. The Right-to-Know Law says nothing about the form or manner of creating records:  that is an issue that is typically addressed (or not) by the statute or rule that requires the keeping of a given record in the first place.

     

Once, however, a record is created, and regardless of its form or the medium on which it is stored, the Right-to-Know Law does govern two aspects of the record’s maintenance:  location and accessibility. The law states:

Each body or agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such body or agency shall be kept in an office of the political subdivision in which such body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.15

Records, electronic or otherwise, may not be stored in a place that is not under the control of the public body or agency. For example, if an e-mail between two selectmen constitutes a public record, it is not sufficient that it is stored on one of the selectmen’s home computer. It must be stored in the selectmen’s office, in either electronic or paper form.

     

The reference to “an accessible place” could be read literally to mean only that the location of the record must be accessible, without requiring that the record itself be accessible; but this would flout the intent of the Right-to-Know Law, which is “to ensure . . . the greatest possible public access to the actions, discussions and records of all public bodies.”16 The law requires records to be made available17; clearly, then, they must be in a form that allows the public to make sense of them. If a record is stored only on a reel-to-reel tape or a 5¼-inch floppy disk, it will be of little use to most citizens, and providing it in that form in response to a Right-to-Know Law request will not comply with the law.

     

With respect to municipal records, a separate statute, RSA chapter 33-A, provides some specific limitations on the manner in which records may be stored. That statute, which prescribes the required retention periods for all municipal records (see discussion below), states that electronic records that are designated to be retained for more than 10 years must be transferred to paper, microfilm, or both. Electronic records designated to be retained for less than 10 years may be retained solely electronically if so approved by the municipality’s record committee. The municipality “is responsible for assuring the accessibility of the records for the mandated period.”18  Thus, even for under-10-year records that are permitted to be retained solely electronically, they must be in a medium that allows a citizen to get access to them and read them. If the municipality implements an entirely new information system that is not compatible with the storage media for its existing records, it would be well advised to find a way to transfer those records to its new system.19 Of course, this is necessary not only to make records available in response to Right-to-Know Law requests, but also to enable government officials themselves to retrieve and use the records.

           

2. Retention Requirements for Electronic Records. As mentioned above, RSA chapter 33-A prescribes the retention periods for municipal records. The statute lists 154 types of records in alphabetical order, with a required retention period for each type. Thus:  abatements—five years; accounts receivable—until audited plus one year; aerial photographs—permanently; airport inspections, annual—three years; and so on.20  These retention periods apply whether the records are in paper or electronic form. The only issue peculiar to electronic records is, as stated above, the requirement that they be converted to paper or microfilm if the required retention period is more than 10 years.

     

Of course, public records, electronic or otherwise, may be retained longer than the statutory retention period, and if they are, they remain subject to the Right-to-Know Law for as long as they are retained. If, for example, an abatement record is requested eight years after it was created, and the record is still on file in the selectmen’s office, it must be made available, notwithstanding that it could legally have been destroyed three years earlier. The Right-to-Know Law does not require disclosure only of those records that are required to be kept; it requires disclosure of all records (other than those that are exempt) that are kept, whether pursuant to a legal retention requirement or not.

           

3. Disclosure of Electronic Records. The disclosure obligation with respect to electronic records is fundamentally the same as with respect to other records:  they must be made available in a manner that is accessible to the person requesting them. However, the statute does provide some more specific guidance on the disclosure of electronic records:  “[A]ny body or agency which maintains its records in a computer storage system may, in lieu of providing original documents, provide a printout of any record reasonably described.”21  Of course, if the person making the request asks for the record on a compact disc or in other electronic form, and if the public body or agency is willing to provide it in that form, that will suffice.

     

HB 377 would have amended the existing provision to state that a public body or agency “may copy governmental records requested to electronic media using standard or common file formats . . . . If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1.”22  This would have provided clearer guidance, but ultimately is probably no different from what the existing law would allow and require:  records may be provided in electronic form if both sides agree, but if the person requesting them asks for a different form, they may be provided on paper or in any other manner that reasonably satisfies the request.

           

4. Deletion of Electronic Records. With the volume of information that is created and transmitted electronically, it becomes a matter of routine—one that may be necessary to manage the flow of information—to delete electronic documents and files that are no longer needed. But when one is dealing with public records, one should think carefully about whether deletion is appropriate. Further, an issue arises as to whether there may be an obligation to retrieve a record that has been deleted.

     

Public records must be kept at least to the end of their legal retention periods. Anytime after that, they can be discarded. With paper records, this is a fairly easy matter:  they are thrown in the trash, shredded, or otherwise destroyed. For the most part, once they are gone, they are gone. The Right-to-Know Law requires only that a public body or agency disclose any public record “within its files.”23 Once the record has been tossed into the trash, shredded, burned, or sent to the transfer station, it is no longer within the public entity’s files,24 and the disclosure obligation ends.

     

With electronic records, however, the matter is less clear. An electronic document that is “deleted” from a computer may be retrievable with little effort, or with heroic efforts. If it has been “deleted,” but can still be retrieved from the computer’s hard drive or from a back-up tape within the public entity’s control, is it still deemed to be “within its files” so that the disclosure obligation continues?

      There is no easy answer under the existing law. HB 377 would have provided guidance:

A governmental record in electronic form shall no longer be subject to disclosure pursuant to this section after it has been initially and legally deleted. For purposes of this paragraph, a record in electronic form shall be considered to have been deleted only if it is no longer readily accessible to the public body or agency itself. The mere transfer of an electronic record to a readily accessible “deleted items” folder or similar location on a computer shall not constitute deletion of the record.25

This is probably the right result under the existing law as well. If the record has been “legally” deleted—i.e., deleted after the expiration of the retention period—and is no longer “readily accessible,” then it should not be considered to be within the public entity’s “files” and should not be subject to disclosure.

     

Of course, what is “readily accessible” may be subject to interpretation. At one end of the spectrum, HB 377 would have dealt with the fairly easy case of simply moving an e-mail or other record into a “deleted items” folder that is just a mouse click away. Such records should remain subject to disclosure because they are just as accessible as if they had never been “deleted.”  Indeed, they are, probably by anyone’s definition, still within the public entity’s “files.”

     

At the other end of the spectrum, if recovery of a legally deleted record would require several hours of work by an IT specialist, disclosure should not be required.26 The more difficult cases are in the middle; and, because there are all kinds of storage systems with varying levels of recoverability, it may never be possible to draw a bright line. Such cases may need to be resolved on a case-by-case basis.

     

C. E-Mail as a Public Record.

Whether e-mail is a public record can present some of the most difficult questions in this area. In many cases, the answer is easy. E-mail to, from, or within a municipal department or state agency clearly constitutes a record of that department or agency and is subject to disclosure under the Right-to-Know Law. A far more difficult issue arises when the e-mail involves one or more members of a “public body”—e.g., a local board of selectmen or planning board, a city council, or the state legislature. Here, the statute’s failure to define “public record” creates a real problem. The question becomes more manageable, however, if various kinds of e-mail are analyzed separately. An e-mail communication, or series of communications, may involve: (1) a quorum of a public body; (2) one member of the public body corresponding with one or more non-members; or (3) more than one member but less than a quorum.

           

1. E-Mail Among a Quorum. An e-mail communication that is received by a quorum of a public body should be deemed a public record. Although the statute does not state that written communications among a quorum constitute a public record, failure to treat them as such would defeat the purpose of the statute. No one would doubt that a document relating to public business that is presented to a board of selectmen at a public meeting is a public record. The same document, delivered to all of the members outside a meeting, would just as clearly be a public record. A letter or e-mail sent to the entire board (either by a member of the board or by a non-member) should be viewed no differently.

     

The conclusion should be the same if the communication goes to a quorum, but less than the entire board. Since a quorum, by definition, has authority to act for the board, the public should have the right to see any non-exempt information that is seen by a quorum of the board.

Implicit support for this conclusion is found in RSA 91-A:5, IX, which exempts from disclosure “[p]reliminary drafts, notes, and memoranda and other documents not in their final form and not disclosed, circulated, or available to a quorum or a majority of [a public body].”  Since one of the conditions of this exemption is that the document in question not be disclosed to a quorum or a majority of the public body, it follows that if it is disclosed to a quorum or a majority,27 there is no exemption.

     

As indicated, this provision is an exemption from disclosure, rather than a definition of what constitutes a public record. This is an important distinction, in theory if not in practice. There is a two-step inquiry in determining disclosure issues under the Right-to-Know Law:  (1) Is the requested record a “public record”?  (2) If it is a public record, is it nevertheless exempt from disclosure?  The provision discussed above addresses only the second question by providing an exemption, so it leaves open the question of whether such records are “public records” in the first place. However, it could be suggested that if they were not public records, there would be no need for an exemption.

     

In any event, the statute does suggest that disclosure of a document to a quorum or a majority of a public body is considered relevant for purposes of determining whether the public should have access to it, whether that question is viewed as one of “public record” status in the first place or as a question of what public records should be exempt. If an e-mail relates to the official business of the public body and is sent to a quorum of the body, there is no apparent reason that it should not be available to the public.28

           

2. E-Mail Involving Less than a Quorum. Although written communications, including e-mail, among a quorum of a public body almost certainly constitute public records, the answer is far less clear as to communications involving less than a quorum. The New Hampshire Supreme Court has never addressed the issue, and no useful case law from other jurisdictions has been found. Reason and longstanding accepted practice, however, suggest that communications involving less than a quorum should not be considered public records.

           
(a)  E-Mail Between Member and Non-Member of Public Body. As to communications between a member and a non-member, the answer seems fairly clear. Members of the state legislature, for example, may receive hundreds—more likely thousands—of letters and e-mails from constituents every year. It is unlikely that anyone considers such communications to be records of the legislature that are required to be kept “at its regular office or place of business.”  No such practice has ever been followed, and any attempt to institute it would create an administrative nightmare. Rather, such communications are records of the legislator—who is not, himself or herself, a “public body” or “public agency.”

The same issue would present itself, on a much smaller scale, for boards of selectmen, planning boards, and other local boards and committees. On a controversial issue, members of local boards may get flooded with e-mail; nothing is likely to be accomplished by treating every such communication as a public record that must be kept on file and made available to the public upon request. A communication between a member and a non-member of the public body does not involve any kind of deliberation between members of the public body, so it cannot be said that disclosure is necessary to keep the public apprised about discussions that are occurring behind the scenes.

It also is worth noting that the Right-to-Know Law would not require that oral communications between a member and a non-member of a public body be disclosed or open to the public. A selectman or legislator is perfectly free to talk to a constituent about public business, in person or by telephone, without inviting public attendance and without keeping minutes of the discussion and making them available to the public. If oral communications are permitted without restriction, it is difficult to imagine why the same should not be true for written communications, including e-mail. Thus, it seems fairly clear that e-mail between a member of a public body and a non-member is not subject to disclosure under the law.

(b)  E-Mail Involving Two or More Members, Less than a Quorum. A written communication involving at least two members, but less than a quorum, of a public body presents the most difficult case of all. Because the communication involves more than one member, it begins to resemble the kind of deliberation that ought to occur in public. On the other hand, if the communication does not involve a quorum, it is unlikely, by itself, to affect the outcome of any matters before the public body.29

There is no clear answer, but the better answer seems to be that e-mail and other written communications involving at least two members, but less than a quorum, do not constitute public records. Again, these communications, if conducted in person or by telephone rather than in writing, would not be subject to disclosure or public access requirements,30 and they ordinarily do not, by themselves, lead to action by the public body. If they are not shared with a quorum of the body, it is difficult to see how they could be deemed records of the public body. Further, in the case of large public bodies, such as the 400-member House of Representatives, treating all written communications between two members as public records simply would not work as a practical matter.

However, the exemption discussed earlier, RSA 91-A:5, IX,31 could be read to support a different conclusion. That paragraph provides an exemption for “[p]reliminary drafts, notes, and memoranda and other documents not in their final form and not disclosed, circulated, or available to a quorum or a majority of [a public body].”  First, as stated previously, the fact that this is articulated as an exemption suggests that such documents must be considered public records as a threshold matter, because if they are not public records, then there could be no need for an exemption. Second, since the exemption by its terms applies only to documents “not in their final form,” one could infer that documents that are in their final form not only are included as public records but are non-exempt, regardless of whether they are available to a quorum of the public body. Under this interpretation, an e-mail that is in “final form” and is sent from one city councilor to another, or from one state representative to another, would not qualify for the exemption and would be deemed a public record subject to disclosure.

Whether the legislature thought the matter through this carefully is questionable at best. This exemption was added to the statute in 2004, and there is no evidence that the legislature focused on the inferences that might be drawn by exempting documents “not in their final form” and “not available to a quorum.”  The goal was simply to make sure that such documents were protected from disclosure, whether that protection came in the form of an exclusion from the definition of “public records” or in the form of an exemption from disclosure, and without consideration of whether exempting some documents might be interpreted to mean that other documents must be disclosed.

It thus seems inappropriate to read anything into this exemption beyond its obvious intent, and it remains an unanswered question whether written communications, whether on paper in electronic form, among less than a quorum of a public body are public records that are subject to disclosure. For the reasons stated above, the better answer seems to be that they are not. This is a question that should be clarified by the legislature. HB 377 would have done exactly that, by defining a public record as “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.”32

           

3. Retention of E-Mail Records. To the extent that e-mail does constitute a public record that is subject to disclosure, the question of retention must be addressed. As previously stated, retention of municipal records is governed by RSA chapter 33-A. Under that statute, most e-mail would be in the “correspondence” category, of which the statute designates three types. “Administrative” correspondence must be retained for one year; correspondence relating to “policy and program records” must be retained for as long as the record to which it refers; and “transitory” correspondence must be retained “as needed for reference.”33 This article will not try to explain the distinctions among the various types of correspondence. Suffice it to say that much e-mail is probably in the “transitory correspondence” category and therefore may be deleted soon after it is read.

 

Questions of where and how e-mail should be retained are subject to the principles discussed earlier. Like any other record, it must be maintained at the public body’s place of business, either in electronic form or in hard copy.34 Once the retention period has passed, hard copies of the e-mail may be destroyed and the electronic version may be deleted; once it is no longer readily accessible to the public body, there should be no obligation to disclose it to the public.


All of this may be more easily said than done. It means that when selectmen or councilors send an e-mail to each other, they should be sending a copy to the person at the town or city hall who is responsible for maintaining the governing body’s records. That person should then decide how long—if at all—the communication must be kept. Knowledge of these requirements may serve as a disincentive to conduct the governing body’s business by e-mail.

 

II.   Electronic Communications as “Meetings”

       

Beyond the issue of electronic communications as public records is the even more vexing question of whether such communications constitute meetings that are subject to the Right-to-Know Law. Again, the answer is far from clear.

     

The Right-to-Know Law defines a “meeting” 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.”35  If a particular event constitutes a “meeting,” there are three consequences:  (1) public notice of the meeting must be provided; (2) the meeting must be open to the public; and (3) minutes of the meeting must be kept and made available to the public.36  Since it would be difficult or impossible to satisfy these requirements—especially the open-meeting requirement—with respect to a discussion held by e-mail, such a discussion would be illegal if it is, in fact, deemed a meeting under the law.

     

It is possible to narrow the field of uncertainty somewhat by eliminating certain communications that clearly are not meetings. First, any e-mail communication involving less than a quorum is not a meeting, since the presence of a quorum is a sine qua non of the definition.37 Second, if one member of a public body simply sends an e-mail to all of the other members and no one replies, there is no meeting, because a quorum has not been “convened.”  A standard dictionary definition of “convene” is “to cause to assemble,”38 and no one has assembled in this scenario. There also has been no discussion or action—just a one-way conveyance of information, the same as if one member had sent a letter by first-class mail to the other members. The e-mail is probably a public record, as discussed above, but it certainly is not a meeting.

     

At the other end of the spectrum, a meeting probably does occur if all members of a public body agree to sit down at their computers at a specific time and send messages back and forth about a matter over which the public body has jurisdiction. One might still quibble about whether the members have “assembled,” since they are all in different locations and the discussion is not exactly contemporaneous; but this kind of arrangement is so clearly inconsistent with the spirit of the Right-to-Know Law that it is hard to imagine that any court would allow it.

     

In the murky area between these two extremes is a more difficult scenario, in which one member of a public body sends an e-mail to the other members, and sometime later—maybe a few minutes, or maybe a few days—one or more of the other members reply. There may be several rounds, with some or all of the members participating.39

     

Whether this is a meeting could be debated forever. On one hand, it is not much different from the prior scenario—all members e-mailing at the same time—except that it occurs over an extended period of time. On the other hand, it is not much different from a series of letters sent by first-class mail—which hardly seems like a “meeting”—except that it occurs during a condensed time period. Further, there has been no prior agreement to “convene,” and some of the members may not be paying any attention to the exchange.

     

There is no easy answer to this conundrum. The best that can be suggested is an approach to deciding cases between the extremes. The more closely an exchange resembles a one-way transmission of information, the more appropriate it is to deem it not a meeting. The more closely it resembles a debate or deliberation among a quorum of board members, the more appropriate it is to deem it a meeting, and therefore illegal because it cannot possibly comply with the open-meeting requirements.

     

There have been several legislative attempts to solve this problem, but none has gained enough support to pass both houses, and this issue ultimately has been responsible for the failure of the overall legislation dealing with electronic records and communications over the last three years. One proposal, offered in the 2006 legislative session, would have required that any communications among a quorum of a public body outside a meeting, in whatever form, be disclosed at the next meeting of the public body; it also would have prohibited the use of communications outside a meeting to circumvent the spirit of the law.40  That proposal was criticized based on the false argument that it would have encouraged public officials to “conduct business in private with only a promise to disclose any decisions they make at a later date.”41 For that and other reasons, it failed to pass.

     

Another proposal, offered as an amendment to HB 377 in 2007, would have clarified that public bodies “shall deliberate on matters over which they have supervision, control, jurisdiction, or advisory power only in meetings held pursuant to and in compliance with [the Right-to-Know Law],” and affirmed that communications outside a meeting, including “sequential communications,” may not be used to circumvent the law.42  This would have clearly prevented back-and-forth e-mail discussions among a quorum on matters of substance, while still allowing the conveyance of information—the critical distinction being whether the public body was “deliberating.”43  That suggestion was rejected as not going far enough to restrict communications outside a meeting—even though it would have gone further than current law.

     

Opponents of this approach insisted, instead, on an amendment that would have prohibited all communications among a quorum outside a public meeting except for “purely administrative matters such as for the delivery of public records or materials for a meeting, or to confirm the time or location of a meeting or the attendance of members at a meeting.”44  This proposal was obviously unworkable, in that it would have prohibited, for example, one selectmen from providing any significant substantive information in advance to other selectmen—whether by e-mail, phone, letter, or face-to-face conversation—about an issue that needs to be addressed and decided at a future meeting. The amendment nevertheless passed the Senate, but House members of a committee of conference refused to agree to it because of the significant problems it would have created, especially for small-town governments. As a result, HB 377, in its entirety, was killed.

     

Along the way, critics of the legislative efforts to clarify the law’s application to electronic records and communications have insisted on handcuffing these efforts to other issues, such as placing greater restrictions on extra-meeting communications generally, as described in the preceding paragraph, and establishing more severe penalties for violating the law.45 Those are issues that may merit consideration, but they are not critical to the more urgent matter of clarifying how the law applies to current technology, and there is no reason for them to hold up legislation that addresses that subject. Until those issues are separated, the status of e-mail communications under the Right-to-Know Law will remain very much in doubt, and it will be left to the judicial branch, as the Supreme Court stated in Hawkins, “to establish accessibility on a case-by-case basis.”46

 

Endnotes

1.     R.S.A. 91-A:4, IV.

2.     R.S.A. 91-A:2.

3.     147 N.H. 376 (2001).

4.     Id. at 380.

5.     R.S.A. 91-A:4, I (emphasis added).

6.     Actually, “public record” is defined in section 10 of the statute, but only for purposes of that section, which was enacted in 2002 and is limited to the release of statistical tables and limited data sets for research.  See R.S.A. 91-A:10, I(j).  There is no definition for purposes of the general disclosure requirement.

7.     See, e.g., Chambers v. Gregg, 135 N.H. 478, 480-81 (1992) (state agency budget requests and income statements submitted to commissioner of administrative services are public records); Menge v. City of Manchester, 113 N.H. 533, 536-37 (1973) (computer tape containing city’s revaluation records, including details of subject properties, is a public record); Mans v. Lebanon School Board, 112 N.H. 160, 162 (1972) (teachers’ contracts with school board are public records).

8.     H.B. 377 §3, 160th Gen. Court (N.H. 2007) (definition of “governmental record”).

9.     Id.

10.   Actually, both houses of the legislature did approve these definitions, because both houses passed HB 377, in slightly different form.  The only difference was the Senate’s addition of an amendment dealing with communications outside a meeting.  Because the two chambers could not resolve their differences on that point, the bill died.  The definitions, however, received the approval of both the House and the Senate.

11.   147 N.H. at 377.

12.   Id. at 378.

13.   Id. at 379.

14.   Id.

15.   R.S.A. 91-A:4, III.

16.   R.S.A. 91-A:1.

17.   R.S.A. 91-A:4, IV (records must be made “available for inspection and copying”); accord Hawkins, 147 N.H. at 379 (“RSA chapter 91-A . . . require[s] that public records . . . be maintained in a manner that makes them available to the public.”).

18.   R.S.A. 33-A:5-a.  In an unfortunate oversight, section 5-a addresses the required storage medium only for records required to be kept for “more than 10 years” or for “less than 10 years.”  It fails to state a requirement for records that have exactly a 10-year retention schedule—and there are several kinds of records in that category, see, e.g., R.S.A. 33-A:3-a, VI (annual audit reports), XLVI (fire calls/incident reports), XCVII (police, accident files—fatalities).

19.   Of course, this is necessary not only to make records available in response to Right-to-Know Law requests, but also to enable government officials themselves to retrieve and use the records.

20.   R.S.A. 33-A:3-a.

21.   R.S.A. 91-A:4, V.

22.   H.B. 377 §4, 160th Gen. Court (N.H. 2007)

23.   R.S.A. 91-A:4, IV.

24.   Presumably, the “round file” does not count.

25.   H.B. 377 §4, 160th Gen. Court (N.H. 2007).

26.   The commission that made a first attempt at revising the law to deal with electronic records, then known as the Right to Know Study Commission, explained the matter this way:  “The situation is roughly analogous to throwing a piece of paper in the trash.  The paper may actually still exist after it is discarded; however, the public body which once had custody of the paper would not reasonably be expected to go through a dumpster or landfill to find it.”  Final Report of the Right to Know Study Commission at 18 (Oct. 29, 2004) (on file with New Hampshire Senate and House Clerks’ Offices).

27.   The rare distinction between a quorum and a majority adds another twist to this issue.  Although a quorum is defined as a simple majority for almost all public bodies in New Hampshire, there are occasional exceptions.  For example, at least one New Hampshire town has a charter defining a quorum of its town council as two-thirds of the members.  See Charter of the Town of Durham §§ 3.1, 3.7.B.  The question thus arises whether a communication to a majority but less than a quorum—for example, five out of nine councilors in the case of Durham—is a public record.  No effort will be made to answer that question here, on the premise that if a time ever arrives when this is the only unanswered question on the topic of e-mail under the Right-to-Know Law, it will be a great day indeed.

28.   This entire discussion assumes the communications in question are not otherwise exempt from disclosure under the provisions exempting, e.g., confidential, financial, personnel, or medical information.  See R.S.A. 91-A:5, IV.

29.   However, a communication among, for example, three members of a seven-member board could be determinative if, at the meeting where the matter is to be decided, only two of the other four members attend.  The three members who shared the communication, although not a quorum of the board, would be a majority of those present and taking action on the issue.

30.   An in-person or telephone discussion among members of a public body is subject to the Right-to-Know Law only if it constitutes a “meeting,” and a “meeting” is defined as “the convening of a quorum of the membership of a public body.”  R.S.A. 91-A:2, I (emphasis added).

31.   See text accompanying note 27, supra.

32.   H.B. 377 §3, 160th Gen. Court (N.H. 2007) (definition of “governmental record”) (emphasis added).

33.   See R.S.A. 33-A:3-a, XXV-XXVII.

34.   See notes 15-19, supra, and accompanying text.

35.   R.S.A. 91-A:2, I.

36.   R.S.A. 91-A:2, II.

37.   This might lead some public bodies to try to circumvent the Right-to-Know Law by relying on a sequence of e-mails, none of them individually involving a quorum but together reaching the entire body.  For example, on a five-selectman board, Selectman 1 sends an e-mail containing his opinions about a matter before the board to Selectman 2.  Selectman 2 adds his comments and sends it to Selectman 3, and so on, until all of the selectmen have discussed the matter with each other indirectly, but no single communication has gone to a quorum of the board.  Such an obvious attempt to avoid the spirit of the law, if challenged, would almost certainly be declared illegal, especially if it is clear that members were purposely using this method to avoid the quorum issue.

38.   See Merriam-Webster’s Collegiate Dictionary 272 (Merriam-Webster, Inc. 11th ed. 2003) (defining “convene” as (1) to summon before a tribunal, or (2) to cause to assemble).

39.   One thing on which almost everyone seems to agree is that an e-mail exchange that is used solely for administrative purposes, such as to schedule a meeting or to circulate a draft of the minutes (without comment), is permitted.  The discussion in the text assumes that members are addressing matters of substance.

40.   See H.B. 626 §7, 159th Gen. Court (N.H. 2006).

41.   “Right-to-Know Law Update Needs More Work,” Foster’s Daily Democrat (Apr. 5, 2006).  The bill would not have allowed public officials to do anything they are not already permitted to do.  Instead, it would have added a requirement that if there was a perfectly legal communication among officials outside a public meeting—e.g., during a “chance” or “social” encounter, or a one-way communication that did not involve the “convening of a quorum”—that communication would have to be disclosed.  This would have been a significant increase in the law’s disclosure requirements.

42.   See H.B. 377, amendment no. 2007-1380s, §7, 160th Gen. Court (N.H. 2007).

43.   It also would have addressed the sequential e-mail issue described in note 37, supra.

44.   See H.B. 377, amendment no. 2007-1891s, §8, 160th Gen. Court (N.H. 2007).

45.   See, e.g., “Government Must Not Hide Behind Technology,” Concord Monitor (March 2, 2006) (“Worst of all, the proposed law carries no penalties . . . .”).

46.   147 N.H. at 380.

 

Author

Attorney Cordell Johnston serves as Government Affairs Attorney for the New Hampshire Municipal Association.

 

 

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