THE RIGHT-TO-KNOW law applies to the private non-profit corporation that provides health insurance for most of the state’s municipal workers, the Supreme Court held late last month. The unanimous opinion affirmed a lower court ruling on that point, but remanded for an in camera review before release of the subject documents.

Observers say the ruling means that a host of other legislatively created entities will need to reconsider whether they are also subject to the Right-to-Know law (RSA 91-A).

In Professional Firefighters of New Hampshire (PFFNH) v. HealthTrust, Inc., issued on November 30, the Supreme Court also reversed an award of attorney’s fees for withholding the documents, finding that HealthTrust had no reason to know, until now, that it was subject to the Right-to-Know law.

PFFNH, which represents nearly 3,000 active and retired public employees, sought disclosure of various HealthTrust meeting minutes and contracts in an effort to understand why healthcare premiums are rising so steadily, according to PFFNH attorney Greg Milner, of the Concord firm of Cook & Molan.

"Because HealthTrust handles the contracts, the municipalities themselves often don’t have the specific information to give the employees," Milner said. "Every time the Firefighters [union] goes to the bargaining table, it is getting hit with big increases in premiums. We want more information so we can see where our healthcare dollars are going."

HealthTrust had refused to disclose the documents, which included a contract with Anthem Blue Cross & Blue Shield. Superior Court Judge Gillian L. Abramson orderedthe documents disclosed, and awarded PFFNH attorney’s fees.

The Supreme Court opinion, authored by Justice James E. Duggan, notes that HealthTrust was formed under RSA Ch. 5-B (Pooled Risk Management Programs), by 322 governmental entities – including cities, towns, and school districts – to provide general health insurance benefits for public employees.

Five-Part Test of ‘Public Body’

The court first looked to whether HealthTrust could be deemed a "public body" under the Right-to-Know law, even though it is admittedly a distinct legal entity from the political subdivisions it serves.

"[I]n determining whether HealthTrust falls within the ambit of the Right-to-Know law, we recognize that we must construe the law to further the statutory objectives of increasing public access to governmental proceedings," Duggan cited five factors that tipped the balance:

1. HealthTrust is comprised exclusively of political subdivisions that are subject to the Right-to-Know law;
2. it is governed entirely by public officials and employees;
3. it provides an essential governmental service - health insurance benefits for public employees;
4. it operates for the sole benefit of its constituent governmental entities and for the sole purpose of managing and providing health insurance benefits for public employees;
5. it manages money collected from governmental entities and enjoys the tax-exempt status of public entities.

"To hold otherwise," Duggan wrote, "would create an anomaly in which the constituent political subdivisions of pooled risk management programs would be, in the same situation, individually subject to the Right-to-Know law, but could avoid the law by forming an association under RSA Ch. 5-B."

An amicus brief was filed by the New Hampshire School Health Care Coalition, a private not-for-profit entity that operates pooled risk management programs for 56 member school districts and other public entities for over 5,500 public employees and their dependents.

The school coalition’s attorney, MonicaA. Ciolfi, of Sheehan Phinney Bass + Green, argued that RSA 91-A, by its plain language, does not apply to private non-profit corporations formed independently under RSA Ch. 5-B to serve political subdivisions of the state. Because the plain language of the RSA 91-A limits its application to political subdivisions, Ciolfi argued that the court did not need to look beyond the language of the statute.

Ciolfi was disappointed with the ruling. "Rather than suggesting a legislative response or clarification, the Court determined HealthTrust’s status even though neither RSA 5-B nor RSA 91-A clearly addressed that status," Ciolfi said. "As a result of the Court’s approach, other quasi-governmental entities that have not to date considered themselves ‘public bodies’ will need to revisit that assessment."

"This opinion affects any number of legislatively created entities whose status with respect to the Right-to-Know law has not been expressly addressed in the legislation," Ciolfi said.

In Camera Review

HealthTrust argued that the requested contract is exempt from disclosure because it contains confidential information, and that the minutes of the meetings are exempt under the legal consultation clause of RSA 91-A.

Finding insufficient facts in the record about any of the requested documents, the Supreme Court remanded for the trial court "to either conduct an in camera review of the materials or order HealthTrust to prepare a Vaughn index to determine which portions of the materials fall within the statutory exemptions," Duggan wrote.

Attorneys’ Fees

Finally, the court reversed the trial court’s award to PFFNH of attorneys’ fees, finding that even though the lawsuit was necessary to make the information available, HealthTrust did not have reason to know that it should have disclosed the information.

"HealthTrust is a quasi-public entity that does not clearly fall within the ambit of entities covered by the Right-To-Know law and, thus, HealthTrust neither knew nor should have known that its conduct violated the statute," Duggan wrote.

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