And Now You Really Know

I came into some insider info taxpayers and citizens of NH should find interesting. This is how you lose your rights.

Following my little history lesson is a communication from a lawyer at Orr and Reno (Bill) to Attorney John Lassey who is one of the Right to Know Commission members. This RTKC has been trying to allow secret meetings of public officials through a clever re-write of RSA 91-A. They have failed miserably since the RTKC creation several years ago.

And why do we have a RTKC in the first place?

Try Cassandra Hawkins vs. NH Health and Human Services for starters. This State Supreme Court case was decided in December, 2001. The short take is this:

HHS was sued under RSA 91-A for information regarding HHS records which have confidential information in them. HHS said no to the request but the court found that some of the info was public and had to be sorted out. This is what is known as “Vaughn Indexing” from a similar case in another state.

The NH Supremes suggested HHS put their records together in an orderly “Vaugh Indexed” fashion eliminating private info from public. So the RTKC was formed to take a second look at RSA 91-A with this in mind.

Here is what the NH Supreme 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.”

Did the Court say “Gut the Right to Know Law?”

Did the Court Say “Allow secret meetings?”

Did the Court say “Allow sequential meetings?”

Then why is THAT what the RTKC seems to have been trying to accomplish by drafting new tricky language?

How about some PENALTIES for violating RSA 91-A? No evidence that penalties has been brought up by the RTKC as of yet. CNHT has asked for that since the inception of the RTKC.

What about Vaugh Indexing, is that a priority, or are we to be sued again and again for information that has to be ferreted out of the private material.

Read the memo for yourself. Check question # 5:

John-

As a follow up to the Commission’s Nov. 16 meeting, I am working on a memo to press organizations and have a few questions that I thought you would be able to answer.

First, as I read the definition of “meeting” in section 2,I it covers “a quorum of the membership,” as the public body defines quorum, but subject to what may be described as section 2’s default rule that when a majority of the members convenes that constitutes a meeting for purposes of the Right-to-Know law. Stated differently, if a public body defines quorum as “more than a majority of its members,” section 2’s default rule would control so if a majority met, meaning the public body would be holding a “meeting” that would have to comply with the Right-to-Know law. Is this a correct?

Response: I believe your interpretation is correct. The intent, as I remember, is to ensure that a majority of the members of a public body that defines a quorum as a number greater than a majority cannot effectively decide things privately and then simply rubber-stamp the decisions at the next public meeting. This issue was brought to our attention by Claire Ebel a couple of years ago during discussions on HB 626.

Second, concerning a “chance, social, or other encounter not convened ….” If members do meet and discuss, but don’t decide anything, the encounter would not constitute a meeting. In other words, section 2,I does not prohibit chance discussions, and they don’t rise to the level of a meeting. Am I correct?

Response: Again, I believe your interpretation is correct. In its report of October 29, 2004, the Study Commission proposed different language, which would have imposed different results. We then recommended the clause exclude from the definition "[a]ny chance or social encounter neither planned nor intended for the purpose of discussing matters relating to official business and at which no such matters are discussed or decisions made regarding those matters. This language was included in HB 626 -- which didn't pass, as you know -- but wasn't carried forward into later proposed legislation. I believe that the House Judiciary Committee had some issues with the earlier version, but I am not sure if my memory is correct on this -- it may have been the Senate. Bear in mind, however, that such chance or social encounrters would still be be subject to the following prohibition in the proposed new 91-A:2-a, II: "Communications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the the spirit and purpose of this chapter as expressed in RSA 91-A:1." In other words, no "we're just discussing; we're not deciding [wink, wink, nudge, nudge]!"

Third, why is subparagraph (d) apart of section 2 since it deals with the circulation of drafts as opposed to a gathering of members of a public body?

It is included because, at the time it was first proposed, many attorneys counseling municipalities were fearful that such communications could be regarded as illegal meetings. The following is the explanation given in the October 29 report:

The Commission recommends that subparagraph (e) be added to address situations where a public body is required to file a written decision, or notice of decision, after actually taking action at a public meeting. For example, a land use board ( e.g. , a board of adjustment) must post a "written decision containing the reasons therefor . . . within 144 hours of [its] vote."[footnote omitted]. After a vote is taken, many boards will ask one member to draft the written decision for signature by the chairman. The Commission believes that circulation of such draft documents among the members in advance of posting would be helpful to prevent error, but also believes widespread fear that such communication would be regarded as a "meeting" has tended to discourage the practice.

Fourth, I read section 2,III(a) to contemplate a situation where a one or more members participate “in a meeting by electronic or other means of communication” where their physical attendance is “not reasonably practical,” and where their participation, when added to the members who physically attend the meeting, makes a majority of the membership (but assume not a quorum), with the result the meeting is subject [t]o the Right-to-Know law. Is this correct? If so, under section 2 there can be three different types of “meetings:” (1) a gathering of less than a quorum or majority, which would not be subject to the Right-to-Know law; (2) a gathering of a majority, but not a quorum, which would be subject to the law; and (3) a gathering of a quorum which would be subject to the law and at which the body could make decisions. Do you agree?

I would agree with this interpretation. As you recall from the last meeting of the Commission, however, a number of the members expressed a desire to revisit some of the language in this proposed paragraph.

Fifth, did the Commission give any consideration to requiring a Vaughn Index (see Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548-552 (1997)) for those circumstances where a public body decides not to produce a governmental record because it comes within an exemption in section 5, or redacts portions of a record because the portions come within section 5 ?

No. To my knowledge, we have never addressed the issue of a Vaughn Index.

Finally, what is the mandate of the “cost recovery” subcommittee that the Commission formed?

I do not recall any "mandate;" however, I believe the concerns which have been raised on this issue in the past couple of years center on how to ensure that public bodies fairly charge for the cost of providng access to governmental records, while also making sure that taxpayers are not paying for an inordinate amount of time spent by public servants in responding to out-of-the-ordinary requests. A typical example which has been discussed is the contrast between a situation where an assistant takes a couple of minutes to find and photocopy the minutes from the last meeting of the selectmen and that where the same assistant has to take a day away from his or her regular duties to retrieve a massive amount of records going back several years. The first could be regarded as within the assistants regular scope of duties; however, the second might reasonably be regarded as outside such scope. One approach which has been suggested is to come up with some sort of a set fee schedule, but this approach has not received universal acclaim.

I look forward to hearing from you.

Bill