In NH, When You Want Privacy - Go To An Open Meeting

This foolish opinion released today by the New Hampshire State Supreme Court weakens the Right to Know Law, RSA 91-A.

Here it is:

PFFNH (Professional Fire Fighters of NH) argues that LGC (NH Municipal Association) could not have reasonably expected that its communications with counsel were made in confidence because they occurred during the course of open meetings, and because LGC took no precautions to ensure the communications were private. PFFNH concedes, however, that no members of the public were present during the meetings. Because the ultimate touchstone is the speaker’s reasonable expectation that the communications were made in confidence, the fact that the meetings were technically open to the public under RSA 91-A:2, I, is of no import. As the superior court aptly observed, “The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation.” LGC could have reasonably relied on the absence of public attendees to ask for the candid advice of counsel. Had members of the public been present, the conversation could have progressed differently. Thus, because no third persons were present at the meeting, LGC was not required to take any further precautions – such as entering into executive session – to ensure the communications were private.


DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

Here is how this ruling came about:

The Firefighters wanted to make public, communications they had AT AN OPEN MEETING with the Municipal Association.

The Municipal Association objected with the excuse there were no members of the “public” in attendance.

This should have been an easy decision for the Superior Court and the Supreme Court.

All communications during an open meeting are public.

But no, that was much too easy for the courts.

My guess is that they must be protecting the NHMA lawyers from their own stupidity. NHMA should know better.

If an open meeting is in progress and anyone wants to go into an executive or nonpublic portion of the meeting, the people conducting the meeting must vote in the affirmative to do so under, in this case, legal discussions with counsel.

These courts have now opened up open meetings to secrecy because some lawyers want to keep quiet what the negotiations were with the firefighters.

So we can assume that from now on any lawyer can simply argue that since no one from the public was attending a public meeting, some communications are non-public. Then we can argue if a member of the public was actually a member of the public.

How about minutes of the meeting? If no one from the public is at an “open meeting” can we make portions of that open meeting secret when it comes to minutes as well?

Why bother having votes to go into non-public meeting at all? If no public member shows up its a free for all of secret conversations – and maybe documents, decisions, photos, votes, and signatures?

If one leaves a tape recorder on at a meeting and no one else is there, is that an "open meeting with no member of the public in attendance"?

The Courts just couldn’t leave well enough, and RSA 91-A, alone and let the lawyers for NHMA/LGC squirm while the public found out what else they have been up to besides skimming $100 million dollars off the top of the Professional Fire Fighters and various NH municipalities insurance premiums.