What is the Right To Know Law in NH?
The Right to Know laws in New Hampshire comprise a part of the State’s statutory implementation of the common law right to access government records. The laws are set out in N.H. Rev. Stat. § 91-A, the Right to Know Law. Section 91-A provides, in part, as follows:
"91-A:1 Purpose and Policy. It is essential to the enumerated purpose of protecting the public’s right to know and to participate in government, that the administration of government remain accountable to the people whom it serves." 91-A:1.
"91-A:4 I. The public’s right of access to governmental records and meetings shall not be denied or hindered unless specifically exempted by statute." 91-A:4 I .
"91-A:4 I Public Pulse. The right of citizens to know and to participate in a democracy requires an informed electorate and free flow of information." 91-A:1
The Right to Know law is the product of the common law tradition of open government and arose in response to public demand for greater transparency and accountability of governmental bodies. The common law right to know the workings of government began in AD 1225 under the English Common Law. The Right to Know law implemented the common law by codifying a version of the Seven Principles of Openness that were developed by the Commission on Freedom of Information of the American Bar Association in 1959.
Key Aspects of the Right To Know Law
The starting point for transparency in NH state and local government is right there in RSA Chapter 91-A. That is the chapter of New Hampshire law devoted to "public records and instances where public access is protected." It identifies what public boards must do when: (a) continuing operations of that public body; (b) conducting a meeting or "session"; (c) making public records available, or (d) making requests for public access related to public records. In addition, the law requires each public board to appoint a compliance officer and strongly encourages public entities to develop or adopt a policy for the filing and responding to Right to Know requests.
There are two key aspects to the New Hampshire Right to Know Law; one pertains to public access (meetings and sessions) and the other to records. The law makes clear, however, that restrictions on access to either may not be found in a public record – only in provisions specifically outlined for exemptions to the general rules. In the end, the Right to Know Law "shall be liberally construed to effectuate its purpose and invalid excuses for noncompliance shall not be tolerated."
The actual provisions appear in RSA 91-A:1 "Declaration of Policy" as well as in RSA 91-A:2 "Definitions", 91-A:3 – 91-A:7 "Public Records and Their Availability" and 91-A:7-a "Governmental Records, Custodians, and Records Management." The law is both expeditious and comprehensive, requiring public meetings or sessions to be accessible (to the public and media) as quickly as possible (note the choice of words in "quickest]") and public records to be available in a timely fashion – "promptly."
Unfortunately, with such broad requirements, it is easy to have mistakes in the notification process of public meetings, "sessions", or the availability of records. To avoid any unintended release of information – or failure to provide notice of a meeting – it is best to be certain the individuals in charge of the specific body are familiar with the provisions of the Right to Know Law. Public bodies also need to be mindful of the requirements currently in effect in their area of responsibility. Specifics about meetings and sessions, administrative records, and minutes are outlined in these laws: RSA 91-A:2, XXII, "Quorum", XXIII, "Public Meeting", XXIV "Regular Meeting", XXV ‘Special Meeting", XXVII "Policy-making Sessions", and "Site Visits" XXIX "Medical Records", XXVII "Non-Meeting", and XXXI "Minutes."
Although there is much more to the Right to Know Law, these are the critical provisions: (1) Every orphaned child in New Hampshire has the right to know; (2) Public bodies must give public notice at the beginning of every meeting; and (3) there is no such thing as a secret meeting. What else has the NH Right to Know Law accomplished?
How Does the Right To Know Law Affect Public Meetings?
Under the Right to Know Law, public bodies and agencies are required to conduct their meetings, with a few exceptions, in public sessions. In general, public bodies are agencies of state or local governments, or authorities or other entities established by such governments, and public meetings are sessions of these agencies (or two or more members of such a body) where deliberations with respect to the body’s business occur. As the New Hampshire Supreme Court noted in Appeal of McLain, "public meeting" is sufficiently broad to include any gathering, at which a quorum of a public body is present, and at which the members of the body deliberate or take action on any matter within the body’s jurisdiction, power, or authority, regardless of whether the gathering is formal or informal.
The law defines "meeting" to mean "stipulated by policy or law to address a specific subject matter within its jurisdiction," and "deliberation" is defined as the "discussion of the public body or agency or its members on matters within its jurisdiction." This language is broad enough to capture all the ways in which public authorities do business and take action.
Open meetings requirements are at the heart of the Right to Know Law, and constitute a significant part of what the law requires of public bodies. When a public body meets, is it subject to the "meeting" requirements of the Right to Know Law? In almost every case. Meetings of public bodies and public agencies must be open to the public, with the exception of public body meetings that are "named in RSA 91-A:2, II," meaning the statutory exceptions to the open meeting requirements discussed below. "All meetings of any public body" as defined in RSA 91-A:2 are also considered public meetings under the Right to Know Law. As long as a gathering is official – even if casual in nature with little formal decision-making taking place – the public has a right to observe the interaction of public officials.
In practice, however, there is not much push back to this right by public officials. The more pressing concern is with the statutory exceptions to the open meeting requirements. Also, public bodies are required to provide the public certain information in advance, in the form of public notices for meetings and minutes of meetings.
Seeking Public Records Through the Right To Know Law
The New Hampshire Right to Know Law provides a mechanism for citizens to access public records. The process is simple but requires an appropriate request by the citizen. The citizen’s request may be in writing and may be addressed to the body keeping the records, but it may also be oral and directed to the body’s designee. Citizens should assume that a written request will generate a more efficient response. The request will be patterns of how the records are kept for the requested body. Staff may be frustrated by complex or sophisticated requests which are not within the body’s ability to provide in the form requested.
The Law defines a record as "any information kept in any form, including paper minutes and recordings, electronic mail stored on a computer, or recorded telephone conversations, created, accepted or adapted by the public agency, board or commission during the course of carrying out its public functions." There are many types of records kept by the various public bodies subject to the Law . It’s more than likely that a particular record already exists in the form desired by the requestor. Commonly available records include correspondence, records of meetings, documents assessing real property, criminal records, and billing statements.
According to the Law, there are a few exemptions to the presumption of availability. These include: records pertaining to the reputation of a person, personal financial information, identification and medical history, juveniles and young people, and personal information about a member of the body. Such exemptions generally must be relied upon by the authority asked for the record and therefore the presumption of availability remains. The presumption may be overcome only with clear and convincing proof which justifies the exemption. Generally speaking, the presumption is overcome only when a compelling public interest is preserved by withholding the record. A body refusing to provide the record will issue a written response to the requestor setting forth the ground for withholding the record.
Common Issues and Legal Considerations
Common challenges and legal issues associated with the Right to Know Law encompass a gamut of scenarios, including disputes over what constitutes a public record, the timely disclosure of said records, and the proper procedure for appealing a denial. These often complex and nuanced issues play out in a variety of forms. One common legal challenge involves determining whether a document is considered a public record. New Hampshire’s Right to Know Law defines a public record very broadly as "any written document . . . including, but not limited to, . . . paper, magnetic or optical storage, electronic storage, email or other medium regardless of physical form or characteristics." This is a broad definition that would include, for example, a video recording, a digital photo or even a computer software program. However, this broad definition has its limits, as certain personal and private information is exempted from disclosure. Other challenges often encountered include disputes over whether the requestor has provided sufficient information to properly identify the record sought, whether the document is exempt from disclosure, or whether it is subject to the three part test set forth by the Supreme Court of New Hampshire. See Appeal of N.H. Coalition v. King’s Estate, 134 N.H. 132 (1991) (stating that public body may withhold a public access request if (1) there is a privacy interest in the document at issue, (2) that interest outweighs the public interest in disclosure, and (3) the requestor cannot demonstrate a sufficiently strong public interest in it that outweighs that of the public body). Deciding whether to appeal a denial of a Right to Know request and the proper venue to file such an appeal is yet another common source of contention. In the case of public body denial, for example, an appeal must be made within 30 days to the superior court or the state police, where a hearing on the merits of the record or minutes sought would take place. However, if a body such as a "town school board" or "municipal corporation" denies a Right to Know request, there is no right to appeal the denial and the requestor must file a petition in court. Most often, they file it in superior court, but such petitions may also be brought before circuit court. The New Hampshire Attorney General’s Office also provides legal support to citizens and municipalities in the appeal process for Right to Know denials.
Recent Changes and Impending Revisions
The New Hampshire legislature has made significant amendments to the Right to Know Law (NH RSA 91-A) over the last few years. These updates have emerged in conjunction with the ascendance of new forms of digital communication in government, the increased scrutiny regarding the stewardship of the public records, and the demand for transparency from the public.
Among the recent changes made to the NH Right to Know Law are the following: The addition of a public body website provision, allowing government agencies to provide electronic access to the public; the creation of an enforcement provision for violations of the right to know laws, allowing for the recovery of attorney’s fees where a requester prevails; and the limitation of the dedicated focus of the attorney general’s office to enforcing and aiding in the interpretation (via writs of mandamus) of public interest right to know law provisions (with a focus on municipalities in which an AG’s role as the prosecutors is difficult due to a conflict in appointing a future counsel) .
The momentum towards reform and amendment of the NH Right to Know Law will continue in light of recent decisions with i.e. attending to the differences in the New Hampshire Right to Know law from that of the Federal Electronic Communications Privacy Act (ECPA), prior to warrants being required for revealing email. (as highlighted in the recent U.S Supreme Court Glazner decision), and increasing press demands for review and access to public records, against a backdrop of state police investigations with the use of social media, i.e. Facebook, etc.
At the national level, the federal Freedom of Information Act, the federal E-Discovery law, and other state FOI statutes will likewise continue to see amendments and revisions. At the NH level, increased demand will continue to be placed on the state attorney general’s office to provide guidance and rulings on right to know law issues.