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The Right To Know Commission About To Gut RSA 91-A With HB 626

If there is one thing liberal tax and spenders hate it is RSA 91-A, “The Right To Know Law.” If you are a taxpayer and regular NH citizen you will find access to public documents the single best way to track government activities. Without 91-A you might as well stop going to meetings or voting. It really is that simple.

So along comes a thinly veiled attempt by the usual suspects, lawyers and other NH Municipal Association toadies to address “problems” with the law.

The reason we are visiting the 91-A issue:
In 2001, the New Hampshire Supreme Court issued its decision in the case of Cassandra Hawkins v. New Hampshire Department of Health and Human Services.1 Hawkins involved a request under the Right-to-Know Law for computer records of individual Medicaid recipient’s dental bills showing services, charges and payments.

The court's response and directive:

After deciding the issues presented, the court said:
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.2

The major change in 91-A proposed by the Commission:

II. Any communications outside a meeting, in whatever form, among a quorum of the membership of such a body which bear upon such matters shall be disclosed fully at the next meeting of the body before any decision may be made, including a decision not to act. If such communications are in writing, copies or printouts shall be made a part of the minutes. Communications among less than a quorum of members need not be disclosed. Sequential communications on the same matter shall be disclosed if the total number of members participating would constitute a quorum if meeting contemporaneously. Disclosure shall be made by those who know, or should know, that the number of participating individuals constitutes a quorum.

So here we are right at the very heart of public participation on government. As a proponent of the publics right to know since I won my first case in Superior Court in 1991. I will explain what this new paragraph is designed to do. Let's break it down.

Sentence 1.

“Any communications outside a meeting, in whatever form, among a quorum of the membership of such a body which bear upon such matters shall be disclosed fully at the next meeting of the body before any decision may be made, including a decision not to act.”
a. This sentence creates legal quorum-sized meetings outside of public meetings because that is what “communications” are.
b. Keeping written minutes of the new “outside communication meetings” (OCM) is no longer necessary as it will be disclosed from memory at the “next meeting of the body.”
c. If the next meeting is another “OCM” the possibilities are endless for a board to create policy, make plans, or create schedules for future “OCM's.”

Sentence 2.

“If such communications are in writing, copies or printouts shall be made a part of the minutes.”
a. “If such communications are in writing” proves my first point. Under current law all communications are to be in writing.

b. “copies or printouts shall be made a part of the minutes.” ? Which meeting. Are you afraid to say, subsequent meeting, as it would limit the number of OCM's?

Sentences 3 – 4

“Communications among less than a quorum of members need not be disclosed. Sequential communications on the same matter shall be disclosed if the total number of members participating would constitute a quorum if meeting contemporaneously.”
a. The possibilities are endless with this scenario but I will keep it simple. If you are a member of a five person board you may NEVER be invited to an OCM and therefore not ever be able to know what will occur at a public meeting. The chair need only contact one person at a time or a two person group could have a member contact one of the second two person group. This is illegal now and is done all the time. With a 15 member board several members could be left out of all deliberations not held at a public meeting. Picture a “School Board Survivor” TV show.

Sentence 5
“Disclosure shall be made by those who know, or should know, that the number of participating individuals constitutes a quorum.”

a. The phrase “or should know” is too stupid to even comment on as it begs for endless litigation at taxpayers expense on both sides. Just what lawyers like. Anyone responsible for this wording should be removed from the commission.

This has been Part I of a series that will appear on 91-A, or the Right To Know Law.

Ed Naile, Chair, CNHT
www.nhtaxpayerradio.com