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Bar News - June 15, 2016

Municipal & Governmental Law: The NH Right-to-Know Law: A Year in Review


The Right-to-Know Law, RSA Chapter 91-A, is perhaps one of the most important and challenging aspects of working in local government. In the past year, both the courts and legislature have actively addressed 91-A, both clarifying and adding to the law.

Green v. School Administrative Unit #55
(NH April 19, 2016)

This case began when the plaintiff – a school board member – made a Right-to-Know Law request for various financial information from the School Administrative Unit. The SAU refused to produce the original electronic version of the records, inviting the plaintiff in to “see” the records instead. The superior court judge ruled for the SAU, deciding that 91-A did not require electronic production of records.

At the center of the New Hampshire Supreme Court appeal was RSA 91-A:4 and its use of the word “may.” First, RSA 91-A:4, V provides, in pertinent part: “In the same manner as set forth in RSA 91-A:4, IV, any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, 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…”

In addition, RSA 91-A:4, IV requires a public body or agency to “make available for inspection and copying” governmental records “within its files when such records are immediately available for such release,” and allows charges for the actual cost of providing the copy.

The plaintiff argued that, because the original form of the requested records was electronic, the SAU was required to produce them electronically. Furthermore, she argued that the second sentence of RSA 91-A:4, V allows a hard copy to be produced only if copying the requested documents to electronic media is not “reasonably practical” or if a different method of receipt is requested. The SAU argued that electronic production is never mandated, because the statute uses “may” rather than “shall,” and that there is no affirmative duty of production anyways; the law requires only that records be “made available” for inspection and copying.

The NH Supreme Court found both interpretations to be reasonable, rendering the statute ambiguous. The Court determined that, because many records are maintained electronically, requiring electronic production in these circumstances was not only generally more efficient and cost-effective, but also achieved “the greatest degree of openness and the greatest amount of public access to the decisions made by the public officials.” Furthermore, the original documents were in electronic format, and there was no evidence that electronic production was not “reasonably practical.” Therefore, the SAU was required to produce the records electronically.

As a result of this case, when records exist electronically, the individual requests to receive them electronically, and it is reasonably practical to do so, the municipality must send them electronically. However, this case does not appear to require municipalities to create electronic copies of records that do not already exist electronically.

Clay v. City of Dover
Strafford County Superior Court, May 29, 2015

In May 2015, Strafford County Superior Court issued a controversial order in a case brought against the City of Dover. Among his many claims against the city, the plaintiff, Jeffrey Clay, alleged that the city improperly withheld names of various candidates for superintendent, as well as scoring sheets used to evaluate the candidates, although the city released a blank copy of the scoring sheet to the plaintiff.

The city argued that two exemptions justified non-disclosure: “internal personnel practices” and “privacy” under 91-A:5, IV. The judge did not find there was a sufficient privacy interest, reasoning that there was “no information that any applicant expected his or her identity to be withheld” and that “the names of unsuccessful finalists were made public as the process progressed.” The judge reviewed the scoring sheets in camera and ordered their release, finding that the sheets were not internal personnel practices because they did not “deal with personnel rules or practices” and because there was no serious privacy interest, and a strong public interest.

The judge’s decision and reasoning raise many questions. Does an applicant really have no privacy interest in keeping his or her name private, particularly when that applicant is employed elsewhere? Would this decision have been different if the city had informed all applicants that their identities would be private? If so, wouldn’t that be a subjective privacy test, which runs afoul of the objective standard established in Lamy v. NH Pub. Utils. Comm’n. (2005)? The New Hampshire Supreme Court recently accepted this case on appeal, and NHMA has joined as amicus curiae. Stay tuned.

Porter v. Town of Sandwich
Carroll County Superior Court, Aug. 14, 2015

In Porter v. Town of Sandwich, a Carroll County Superior Court judge ruled that if an email is sent to the entire membership of a public body, creating the potential for a contemporaneous exchange of information, then that email constitutes a violation of RSA 91-A, even if no member of the public body actually replies.

Essentially, this would mean that a one-way communication from one board member to the others, alone, constitutes an illegal meeting. Many municipal practitioners probably advise that a 91-A violation arises only when a sequential email conversation takes place among members of a public body. However, relying on language found in RSA 91-A:2, I, this judge concluded that when an email communication to a quorum of a public body creates even the opportunity for a contemporaneous exchange, an improper electronic meeting has occurred. This case may be appealed to the New Hampshire Supreme Court.

Legislative Changes

The NH Legislature has made several significant changes to the law as well, primarily clarifying or extending the provisions relative to nonpublic sessions.

The purposes for which a public body can go into nonpublic session have changed in two ways. First, due to Senate Bill 243, effective Jan. 1, 2016, a public body can now discuss all pending claims and litigation in nonpublic session, whether brought against the municipality or by the municipality.

Previously, RSA 91-A:3, II(e) applied to only those claims and lawsuits filed against a public body. Second, HB 285, adding new subparagraph 91-A:3 (II) (l), will allow a public body to enter nonpublic session for “consideration of legal advice provided by legal counsel, either in writing or orally, to one or more members of the public body, even where legal counsel is not present.” Both houses of the Legislature have approved this amendment, which will become effective upon approval by the governor.

Two other bills clarified procedural requirements relative to nonpublic sessions. First, a vote to “seal” minutes under RSA 91-A:3, III must now be taken in public session. Prior to the adoption of HB 108, which became effective Jan. 1, 2016, the statute simply required a two-thirds recorded vote to keep nonpublic meeting minutes nonpublic, but did not specify whether the vote had to be taken in public or nonpublic session.

Second, HB 1418, amending RSA 91-A:2, II and effective as of Jan. 1, 2017, will require nonpublic session minutes to include, at minimum, the same contents as public session minutes: names of board members present, names of persons appearing before the board, and a brief description of the subject matter discussed and final decisions. In addition, pursuant to HB 1419, effective Jan. 1, 2017, minutes of nonpublic sessions must also include the vote of each member on all actions taken.

Finally, House Bill 606 was approved by both Houses on June, 1, 2016, amending RSA 91-A:4 (IV). This amendment will prohibit public bodies and agencies from charging for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form. This amendment answers the question raised in Green v. SAU #55 about whether a governmental entity can charge for providing electronic records, and the answer is no.

Stephen Buckley

Margaret Byrnes

Stephen Buckley is legal services counsel and Margaret Byrnes is staff attorney for the NH Municipal Association. Both Buckley and Byrnes provide legal advice and training to municipal officials throughout New Hampshire.

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