Bar News - June 21, 2017
Municipal & Governmental Law: New Hampshire’s Right-to-Know Law: A Year in Review
By: Stephen C. Buckley & Margaret M.L. Byrnes
A public body may now enter nonpublic session to consider legal advice received from legal counsel, either orally or in writing, even if legal counsel is not present, under RSA 91-A:3, II(l).
Over the past year, personal and personnel information have taken center stage at the New Hampshire Supreme Court in cases dealing with the state’s Right-to-Know Law, while the NH Legislature has focused on nonpublic sessions and electronic records.
and Files Clarified
In 2015, a Strafford Superior Court judge concluded that rubrics used to evaluate candidates for superintendent were not exempt either as “internal personnel practices” or as records “whose disclosure would constitute an invasion of privacy” under RSA 91-A:5, IV (See Clay v. Dover, Strafford Sup. Ct., May 29, 2015). The City appealed.
Less than a month before oral arguments, the New Hampshire Supreme Court handed down Reid v. New Hampshire Attorney General (Dec. 23, 2016), reversing the lower court’s determination that records related to the Attorney General’s investigation into a county attorney’s misconduct were exempt as “internal personnel practices.” The Court reviewed at length its past decisions interpreting “internal personnel practices,” ultimately concluding that to meet this exemption, records must be both “personnel” and “internal.”
“Personnel,” it said, applies to the “selection, placement, and training of employees,” and the “formulation of policies, procedures, and relations with [or involving] employees or their representatives,” including “hiring and firing, work rules and discipline, compensation and benefits.” A personnel practice is “internal” when it “exists or is situated within the limits of” the employment relationship. Because there was no employment relationship between the Attorney General and the County Attorney, the investigation was not “internal” and not exempt as an internal personnel practice.
However, the Court remanded the case for a determination of whether the records could be exempt as “personnel files” under a two-part test: 1) whether the material can be considered a “personnel file” or part of a “personnel file” and 2) whether disclosure of the material would constitute an invasion of privacy. The justices explained that disclosure constitutes an invasion of privacy if it could “subject individuals to stigma, embarrassment, and reputational injury” and “harassment, disgrace, loss of employment or friends.”
Relying on the Reid analysis, the Court in Clay held that the rubrics were exempt as internal personnel practices: they were “personnel” because they related to hiring, and “internal” because they were created by members of the search committee, on behalf of the employer – the school board. The privacy argument was not addressed. See Clay v. City of Dover (NH, 2017).
Right to Privacy and
Although it did not factor into the Clay decision, the privacy exemption did receive some attention in New Hampshire Right to Life v. Director, New Hampshire Charitable Trusts Unit (NH, 2016). This opinion addressed multiple requests, but of particular interest was the Court’s analysis of surveillance camera footage, and whether footage of individuals on a public street could invoke a privacy interest.
The NH Supreme Court first said that individuals generally have “a large measure of control over the disclosure of their own identities and whereabouts” and an “interest in retaining the ‘practical obscurity’ of private information that may be publicly available, but difficult to obtain,” such as home addresses of public employees, even though the information may be publicly available through other sources. Furthermore, the Court concluded that even though “an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” The Court remanded the case so that additional information could be obtained regarding the level of privacy interest of those shown on the tapes, balanced against the public interest.
The Court’s decision regarding production of electronic records in Green v. SAU 55 (2016) led to an amendment to RSA 91-A:4: When governmental records are maintained in electronic format, the requested records may be copied “to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law.” If “copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method,” the records may be produced in another reasonable method, including providing a printout.
Shortly thereafter, a NH Superior Court judge ruled that SAU 55’s policy requiring electronic records production via “thumb drive” did not violate the law. Taylor v. SAU 55 (Rockingham Sup. Ct., Oct. 24, 2016). The judge noted that neither the Green opinion nor the legislature mandated a particular electronic format or mode of electronic production, such as email.
Finally, RSA 91-A:4 now prohibits a public body or agency from charging a fee for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.
The Legislature made three significant changes to nonpublic sessions over the past year. First, HB 1418 clarified that the minutes of nonpublic sessions must include the same information as minutes of public sessions: 1) members present; 2) individuals participating; and 3) brief summary of subject matter discussed and decisions made.
Second, nonpublic session minutes must “record” the individual votes of any decisions reached in nonpublic session, “in such a manner that the vote of each member is ascertained and recorded.”
Finally, a public body may now enter nonpublic session to consider legal advice received from legal counsel, either orally or in writing, even if legal counsel is not present, under RSA 91-A:3, II(l).
The NH Legislature has passed HB 178, creating a commission “to study processes to resolve right-to-know complaints,” with the goal of reducing the burden and costs of such complaints. As of this writing, the governor has yet to sign the bill.
Under HB 460, if a member of a public body believes the body is engaging in an illegal discussion (typically in nonpublic session), the member may object, require that the minutes reflect the objection, and also continue to participate without being subject to penalties. The bill has passed the House and Senate in different forms, and at this writing the two versions still need to be reconciled.
As passed by the House, HB 170 states that if the public body posts notices and minutes on its website, it must do so “consistently for all subsequent meetings.” The bill does not require all public bodies to post minutes. At this writing, the bill is still in the Senate, which is likely to amend it.
The NH Municipal Association (NHMA) supports local government by providing legal advice and legislative advocacy for local officials. Margaret M. L. Byrnes is staff attorney with NHMA. Stephen C. Buckley is NHMA’s legal services counsel.