September 17, 2018
Author: Walter L. Mitchell
Organization: Mitchell Municipal Group, P.A.
1. Preamble (RSA 91-A:1)
RSA 91-A is commonly referred to as New Hampshire’s Right To Know Law. Its preamble expresses the spirit that drives conduct under the statute and the court’s interpretation of it. It simply states “openness in the conduct of public business is essential to a democratic society.” It then explains that the statute’s purpose is to insure the greatest possible public access to “actions, discussions and records” of public bodies and to assure the accountability of public servants to the general citizenry. That is a broad and blunt statement which requires that individuals who serve a public body (whether as employees, elected or appointed officials or volunteer board members) must continually keep in focus that they are not engaged in a private business. Instead, they are conducting the public’s business, and the public has the right to know about its own affairs.
New Hampshire courts often turn to this spirit, considering it the touchstone when deciding a Right to Know case. As our Supreme Court stated in its 2012 decision in 38 Endicott Street North LLC v. State Fire Marshall, 163 N.H. 656, “Although the statute does not provide for unrestricted access to public records, a court resolves questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives.” The Court also observed that it “...construes provisions favoring disclosure broadly, while construing exemptions narrowly. A public entity seeking to avoid disclosure under the Right-To-Know Law bears a heavy burden to shift the balance toward nondisclosure.”
2. Meetings (RSA 91-A:1-a)
The conduct of meetings under the Right To Know Law is governed by three specific statutory provisions; RSA 91-A:1-a, 91-A:2 and 91-A:3. RSA 91-A:1-a broadly defines governmental proceedings to which the Right To Know Law applies. “Governmental proceedings,” as that term is used in the statute, refers to the transaction of any functions affecting any or all citizens of the state by any of the following public bodies:
a. The legislature (known as the general court), specifically including executive sessions of that body and its committees.
b. The governor’s council, whether or not the governor is present.
c. Any board or commission of any state agency or authority. It is interesting to note that the legislature felt it necessary to specifically identify that this includes the board of trustees of the university system.
d. The broadest category applies to all political subdivisions of the state. It covers any board, commission, agency or authority of any county, town, municipal corporation, school district, school administrative unit, charter school or other political subdivision. It then explains that it is not just the main bodies of those entities that are covered; the statutory requirements also apply to any committee, subcommittee, or subordinate body of any of these political subdivisions, including advisory committees to any of the main bodies. Advisory committees are specifically defined as “any (emphasis added) committee, council, commission or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of public policy or legislation that may be promoted, modified or opposed by such authority.”
Example: A town wants to create a new town park, and the selectmen appoint a group of citizen volunteers as an advisory committee to the selectmen, to advise on the use and development of that property. Any meetings of that advisory group must be held in compliance with RSA 91-A.
e. Any federally tax exempt organization that has as its sole member the State or any political subdivision of the State.
3. Meetings Open to the Public (RSA 91-A:2)
The term “meeting” is defined by RSA 91-A:2, I. To constitute a meeting, there must first be a quorum of the membership of a public body as defined in RSA 91-A:1-a. For the purpose of the Right to Know Law, a quorum is a majority of the total number of members of the body, even if that term is defined differently by the rules and regulations of that body. The determination of that quorum takes into account both individuals there in person and those communicating by telephone or other electronic means (including computers). And in determining whether a quorum exists, it must be remembered that this requirement also applies to sub-committees.
Next, the body must be gathered to “discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power.” If a quorum of the body has gathered, but the gathering is not for the purpose of discussing a matter within the body’s jurisdiction, then it is not a meeting under the Right To Know Law.
Example: A seven member planning board appoints a three member subcommittee to work on updating the town’s master plan. If any two members of that sub-committee (a quorum) meet for any purpose connected with the task of that sub-committee, RSA 91-A requirements for notice, conduct of the meeting and minutes must be complied with. It does not matter that those two members do not constitute a quorum of the full planning board.
There are, however, certain activities that are excluded from the term “meeting”.
They are:
A. A chance or social meeting neither planned nor intended for the purpose of discussing matters related to official business, and at which no decisions are made. (RSA 91-A:2, I).
However, the statute does explain that “chance or social meetings” must not be used to circumvent the statute’s spirit. Therefore, a court will closely scrutinize any gathering of a quorum of any body, and may react with a great deal of skepticism if that board tries to hide behind the “chance meeting” excuse. While the statute does not state it explicitly, it is implicit that if a quorum of the body innocently finds itself gathered (at a party, for instance), discussion of matters within that board or committee’s jurisdiction should be avoided and certainly no decisions should be made..
B. Strategy discussions or negotiations with respect to collective bargaining. (RSA 91-A:2, I (a)).
This section recognizes the necessity of private meetings for a board to discuss and formulate its strategy with respect to collective bargaining. It also implicitly recognizes that labor representatives, unconstrained by the Right To Know Law, have the ability to meet in private. To withhold that same ability from a public body would put that public body at an unfair disadvantage. This exception also recognizes the importance of private negotiating sessions for the actual collective bargaining. Often the private nature of these sessions allows the parties to work through delicate or highly charged issues in a way that might not be accomplished in public. It must be remembered, however, that any final vote by the board to approve recommendations that result from the negotiations, must be in an open meeting.
C. Consultation with legal counsel. (RSA 91-A:2, I(b)).
If a public body meets with its attorney, that meeting is what might be called a “non-meeting,” and the requirements of the statute (notice, roll call vote for a non-public meeting, minutes, etc.) do not apply. Instead it is sufficient, if the consultation takes place in the context of an otherwise public meeting, that the minutes reflect that the board suspended its meeting to meet with legal counsel. It is interesting that until recently there has not been any published New Hampshire case law providing guidance on the scope of the consultation with counsel exclusion. While the simple words of the exclusion cover a broad range of circumstances, it is presumed that a court would not sanction taking advantage of this exclusion by having an attorney present merely as “cover” to hold a meeting that must otherwise be held in public. Specifically, a court would take a very dim view of a meeting held without RSA 91-A compliance, under cover of the meeting with legal counsel exception, when there was absolutely no purpose for the attorney being present other than to provide that cover.
Recently the Court has issued a decision that speaks to whether this exclusion applies when the attorney is not present, in person or by telephone, when a quorum of a board gathers to discuss the attorney’s legal advice. In Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (2011), the court ruled that in order to utilize the Right to Know law’s consultation with legal counsel exclusion, the attorney must be able to have “contemporaneous exchange of words and ideas” with the public body.
D. Circulation of Draft Documents which when finalized are intended to formalize decisions made at an earlier meeting. (RSA 91-A:2, I(d))
4. Meeting Requirements (RSA 91-A:2, II)
a. All meetings must be open to the public, except for the non-public sessions described below in section 7 below.
b. There must be prior notice given of any public or non-public meeting, unless it is an emergency, or a meeting of a legislative committee. That notice must at a minimum contain the time, date and place of the proposed meeting, and it must be posted in two “appropriate” public places or printed in a newspaper of general circulation at least 24 hours before the proposed meeting.
One of those appropriate places may be the municipality’s website. Sundays and legal holidays are excluded from these calculations. Therefore, if the proposed meeting is to be on a Monday, notice must be posted or published by Saturday. The posting requirement applies even if the Board is only going to conduct a non-public session. There is no requirement that an agenda be posted.
“Emergency” is defined as a situation in which the chairman or presiding officer of the body or agency decides that it is imperative to take immediate undelayed action. When this exception is used, the statute obligates the body to employ whatever means are necessary to notify the public. This may include, for example, public posting for a period shorter than 24 hours, asking the local radio station to make an immediate public service announcement, and/or perhaps calling individuals known to have an interest in the topic to be discussed.
Also, when an emergency session is called, the minutes of that session must clearly spell out what constituted the emergency. Because of the risk that a dispute may arise over whether there really was a true emergency, use of emergency sessions should be avoided whenever possible.
Publication of notice for meetings of legislative committees is sufficient if consistent with the rules of the House of Representatives or the Senate. Note: If the internal rules of a municipal body, or one of its boards or agencies, requires the giving of greater notice, that local requirement takes precedence.
c. There must be no voting by secret ballot at any meeting held under RSA 91-A, with the exception of statutory elections and proceedings at annual and special meetings of towns and school districts.
d. All public meetings may be recorded by audio or video tape by any member of the public.
d. Minutes must be kept of all meetings, and at a minimum must contain the names of the members in attendance, the names of persons appearing before the body, and a brief description of the subjects discussed and of any decisions made. Those minutes must be filed with the municipality and open to the public’s inspection within 5 business days of the meeting, at which point they become a permanent record of the town. The fact that the minutes have not yet been reviewed by the body for accuracy or accepted by the body does not excuse the filing requirement. They may, however, be marked “draft”, or marked with another similar notation, until the body has the time to accept or amend them.
5. Meeting Electronically (RSA 91-A:2, III)
A member of a public body may participate in a meeting electronically, but only if:
a. A majority of the members approve.
b. “In person” attendance is not reasonably practical, and an explanation of why it is not reasonably practical appears in the minutes.
c. A quorum of the board is physically present at the posted meeting location, unless there is an emergency declared by the chair. If there is an emergency meeting called, the reason for the emergency must be declared in the minutes.
d. Each part of the meeting must be audible to the public present at the meeting, and each of the participating members must be able to simultaneously hear and speak to each other during the meeting.
e. Each member participating electronically must identify all other persons present at the remote location.
f. No meeting shall be conducted by electronic mail that does not permit the public attending to hear, read or otherwise discern the meeting discussion contemporaneously with the members at the meeting location.
g. At all meetings which utilize electronic participation, roll call votes must be utilized for any votes taken, and the roll call results must be reflected in the minutes.
There is a prohibition on communications outside a meeting, including “sequential communications” (e-mail) among members of the public body being used to circumvent the spirit of the Right to Know Law. (See RSA 91-A:2-a).
6. Practical Tips, Questions and Ramifications
a. What constitutes an “emergency”? The answer requires a subjective judgement based on the particular circumstances. However, since that judgement may be reviewed by a court, keep in mind that to be consistent with the spirit of the statute, the emergency exception should only be utilized when circumstances absolutely compel its use and there is no reasonable alternative.
b. What constitutes an “appropriate” place for posting? While the statute is silent, common sense tells us that an appropriate spot is one to which the public has regular access. A bulletin board in an area of town hall to which the public has only limited access is insufficient. Likewise, a posting in a library which is only open two nights a week may be found to be insufficient.
c. If a meeting is not legally posted, action taken at that meeting may be invalidated. For instance, if a board terminates an employee at an improperly posted meeting, a large obligation to pay back pay may have accrued by the time the error is found and ordered corrected by a court (see Stoneman v. Tamworth School District, 114 N.H. 371 (1974) and Johnson v. Nash, 135 N.H. 534 (1992)). Similarly, action taken by a zoning board of adjustment may be depended upon by a property owner in beginning a building project; that owner, and the town, could be facing difficulties if it is later found that the ZBA action was taken at an invalid meeting (see Carter v. City of Nashua, 113 N.H. 407 (1973).)
d. Continued Meetings - If a meeting is properly posted and then the business of the board requires continuing that meeting to a second night, no further notice is required as long as a specific location, date and time of the continued meeting is clearly announced at the first meeting (and that action should be clearly reflected in the minutes). However, if a meeting is properly posted, but then canceled because of a snowstorm without a quorum of the board gathering to vote and announce a specific date, time and place to which it is continued, the continued meeting requires new posting.
e. Some municipalities use a permanent posting: e.g., “The Board of Selectmen meet every Monday evening at 7:00 P.M. at the Town Hall.” This type of posting is valid under RSA 91-A, as long as the notice does not disappear from its permanent locations.
f. It is important to save proof of the notice of posting, including the date and time of the posting and the person who did the posting. Otherwise, if it later becomes an issue, a municipality may be at a disadvantage in attempting to prove proper posting.
g. Although many communities are in the habit of posting an agenda for a meeting, that is not required by the Right To Know Law and, even with the posting of an agenda, topics may be considered that are not included on the agenda.
h. A common misconception is that a board or agency may not enter a non-public session if it has failed to mention that possibility on an agenda. A non-public session may be entered for any valid purpose from any properly noticed public meeting.
i. What is a newspaper of “general circulation”? The answer to that question may be difficult in rural areas.
7. The Use of Non-Public Sessions (RSA 91-A:3)
Although non-public sessions (sessions from which the public is excluded) seem inconsistent with the spirit of the Right To Know Law, the legislature has recognized that even a public body must sometimes utilize them. Therefore, the use of a non-public session is prohibited unless it is for one of the specifically excepted purposes described in RSA 91-A:3.
In order to validly enter a non-public session, the body must first follow the motion procedure described in the statute. The motion to enter a non-public session must clearly state the reason (the statutory exemption) for which the non-public session is being proposed. Voting on this motion must be by roll call vote of the members present, and approval by a majority vote is required. (see RSA 91-A:3, I(b)). That roll call vote must be reflected in the minutes.
Once a non-public session is entered, the discussion held in it, and decisions made, must be confined to the subject matter referenced in the motion to enter the session. If the body has other business to discuss that also validly qualifies for the use of a non-public session, but does not fall within the scope of the motion made to enter that non-public session, the body must conclude its business on the first topic, come out of that first non-public session, and then make a new motion to enter a new non-public session for the second reason (see RSA 91-A:3, I(c)).
Although the statute does not directly address it, the only persons that should be present in a non-public session are those necessary to the board’s handling of the topic under consideration.
Contrary to a common misconception, once properly in non-public session there is nothing to prevent the making of a decision in that session.
8. Statutory Reasons For Non-Public Sessions (RSA 91-A:3, II)
Under RSA 91-A:3,II there are only ten valid reasons for which a public body may enter a non-public session. Note: Although deliberations were at one time generally permitted in non-public sessions, the statute was amended long ago, and that is no longer generally permitted; instead, deliberations are now only permitted in non-public if there are circumstances that qualify under one of the statutory exemptions.
These exceptions are:
a. Personnel Issues. The body may utilize a non-public session to discuss and consider the dismissal, promotion or compensation of any public employee, or the disciplining of that employee, or the investigation of charges against that employee, except when the employee “has a right to a meeting” and requests that the meeting be open.
Prior to the legislature’s adding this “right to a meeting” language, the statute contained an exception for the situation in which the employee requested that the meeting be held openly. In Johnson v. Nash, 135 N.H. 534 (1992), the Supreme Court, in invalidating a decision made in non-public session to terminate the services of a public employee, based its decision on the theory that an employee’s right to ask for an open session was meaningless unless there was also an implied obligation to give that public employee prior notice that a disciplinary issue would be discussed. In that same year, soon after that Supreme Court decision, the legislature reacted by amending the statute, attempting to narrow the circumstances under which prior notice must be given.
While the scope and meaning of the phrase “right to a meeting” remains unresolved by the courts, it seems to refer to those situations where the employee has right to a hearing by law or by contract.
b. The hiring, or consideration of hiring, of any person as a public employee.
c. A broad exemption for any matters which, if discussed in public, would likely adversely affect the reputation of any person, other than a member of the body or agency itself. However, this exemption may not be utilized if the person being discussed requests an open meeting. The legislature felt the need to make clear that included in this exemption would be discussions of any application for welfare assistance, tax abatement or waiver of a fee, fine or other levy, if that request is based on a claim of poverty or inability to pay.
d. Consideration of the acquisition, sale or lease of real or personal property under circumstances in which, if the proposed transaction were discussed in public, there would likely be a benefit to a party whose interests are adverse to those of the general community.
Example: If the municipality is interested in acquiring property for the location of a new public building, and the property is not generally known to be on the market, it might be adverse to the community’s interest to publicize those negotiations since that publication might trigger interest in the property from other parties, and thus drive up the price.
e. Consideration or negotiation of any pending claims or litigation which have been threatened in writing, or are already filed against the body or agency, or against any member thereof, because of his/her membership in the body or agency. However, once the claim or litigation has been either fully adjudicated or otherwise settled, this exemption may no longer be used. The filing of an application for tax abatement does not qualify under this exemption. NOTE: This language covers claims against a public body, but not claims being considered or prosecuted by the public body.
f. Consideration of applications by the adult parole board under RSA 651-A.
g. Consideration of security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees.
h. Consideration of applications by the business finance authority under RSA 162-A:7-10 and 162-A:13, where consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application.
i. Consideration of emergency functions, especially those directly related to thwarting a deliberate act intended to result in widespread or severe damage to property or widespread injury or loss of life.
j. Consideration of confidential records that are exempt from disclosure under RSA 91-A;5,IV, but only when the consideration is taking place in the context of a proceeding under RSA 541 (appeals from state board decisions) or under RSA 541-A (the Administrative Procedure Act).
9. Minutes of Non-Public Meetings (RSA 91-A:3, III)
Minutes of non-public sessions must contain at least the same minimum content required for minutes of public sessions. Those minutes, and any decisions reached in non-pubic session, are required to be made available to the public within 72 hours of the non-public meeting, unless by a two thirds vote of the members present it is decided that divulging the content of the minutes 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 pertain to efforts to thwart terrorism or carry out the emergency functions referenced in RSA 91-A:3, II(I). If that motion is approved, the minutes are “sealed”, and not available to the public. However, those minutes can only be withheld from the public as long as the circumstances that led to the vote still exist. Once those circumstances no longer exist, there is an obligation to unseal the minutes. The determination of whether circumstances still justify keeping the minutes sealed should be made by vote of the board, rather than by administrative staff.
10. Remedies For Violations (RSA 91-A:7 and 8)
Any person, with or without the services of an attorney, may file a petition with the superior court claiming a Right To Know Law violation. The courts are mandated to, and do in fact, give such proceedings “high” priority on the court calendar.
The statute contains specific authority for the award of attorney’s fees, provided that the court finds that the lawsuit was necessary in order to make information available, or make a public proceeding open to the public. However, the legislature has made it clear that fees are not to be awarded unless the court first finds that the public body “knew or should have know that the conduct engaged in was a violation of this chapter.” If such a finding is made, the court must make an award of attorney’s fees.
Further, if the court finds that a public officer, public employee or other public official has acted in bad faith in refusing to allow access to a public proceeding (or to provide a public record), the court is authorized to award such attorney’s fees personally against that offending individual.
However, if the court finds that a lawsuit was brought against the public body in bad faith or was frivolous, unjust, vexatious, wanton or oppressive, it may award attorney’s fees against the plaintiff, to reimburse the public body for its costs in defending the case.
The court also has the statutory authority to invalidate any action taken at a meeting held in violation of the statute, “if the circumstances justify such invalidation.” Therefore, any action taken at such a meeting not fully in compliance with the Right to Know Law is not automatically void but rather voidable, at the discretion of the court.
In addition, the court, at its discretion, may issue an injunction to prohibit future violations.
Example: For a description of the application of these remedies, see the circumstances in Voelbel v. Town of Bridgewater, 140 N.H. 446 (1995), involving the dismissal of a police chief. The court found a violation of RSA 91-A, invalidated the vote to terminate the police chief’s employment, but also ruled that the plaintiff’s attorney’s fees could not properly be awarded against the town, finding that these selectmen should not have known that the conduct in which they engaged was a violation of the statute. This finding was based on a trial court determination that the selectmen had taken the precaution of consulting with town counsel and that, at that time, it was not generally understood, even among municipal law practitioners, that advance notice was required to be given to an employee that his/her dismissal would be considered in non-public session. (Reminder: the legislature has since revised that requirement).
Finally, unauthorized disclosure by a municipal official of information discussed in a non-public session may be considered a violation of that officer’s oath, and may lead to his/her dismissal from office, by petition to the superior court (see RSA 42:1-a). To have a basis to remove that person from office, the court must first find that either (a) the disclosure was made after minutes of the non-public session were sealed in accordance with the statute and that divulgence of the information discussed in the non-public session constituted an invasion of privacy, adversely affected the reputation of some person other than a member of the public body, or rendered the proposed municipal action ineffective, or (b) that the officer knew or should have known that the information was exempt from disclosure under RSA 91-A:5 and also knew or should have known that the divulgence would constitute an invasion of privacy, would adversely affect the reputation of some person other than a member of that board, or render the proposed municipal action ineffective.
11. Guidelines
Attached to this outline are two checklists, one that generally covers the full Right to Know Law, and one that is more focused on the use of non-public sessions. They are designed to be utilized by board members at meetings, and we trust that you will find them helpful.