"Right to Know Law" (RSA 91-A)
- RSA 91-A Access to Public Records and Meetings
- Attorney General's Office Releases Updated Right-to-Know Memorandum
The New Hampshire Attorney General's Office has updated its comprehensive memorandum on RSA Chapter 91-A, New Hampshire's Right to Know Law, 7/15/09
- Legal Q & A articles from New Hampshire Town and City published by the Local Government Center
- Records Compiled for Enforcement of Statutes, Ordinances and Regulations: To What Extent Are They Exempt from Disclosure?
Although law enforcement records are not included as such in the list of government records exempt from disclosure under the Right to Know Law, RSA 91-A:5, the New Hampshire Supreme Court has long recognized that certain law enforcement records may be withheld from public disclosure in accordance with the exemption for such records in the federal Freedom of Information Act (FOIA). This exemption has been important for police departments, but until now, of little interest to other municipal officials and employees. Recently, however, in the case of 38 Endicott Street North, LLC v. State Fire Marshal, the Court expressly held that the law enforcement records exemption applies more broadly. The case raises many questions as to what municipal records, other than police department investigatory files, may be withheld from public disclosure as “records compiled for law enforcement purposes.” (See this month’s Court Update column for a summary of 38 Endicott Street North, LLC v. State Fire Marshal.)
- The Inside Scoop on Nonpublic Sessions
New Hampshire’s Right to Know Law, RSA Chapter 91-A, is a critical statute for local officials and employees to understand. One of the more difficult areas to navigate is nonpublic sessions. Recently, we have received an incredible number of legal inquiries about this subject. Here are some of the most frequently-asked questions about nonpublic sessions.
- Right to Know Law: Disclosure of "Draft" Documents
A core principle of the Right to Know Law involves the right of citizens to inspect and copy governmental records. Questions often arise about documents and electronic communications that are created as staff and officials study an issue, deliberate about how best to approach the matter, and review and refine language of policies, ordinances, or adjudicative decisions. These documents will likely contain information that is incomplete and language that will ultimately be rejected prior to approval by public bodies. Thus, staff and officials are reluctant to allow this work-in-process information to be circulated, since it could easily be misinterpreted or cause confusion in the community. This short article is about where the legislature and the courts have drawn the line on disclosure, and what information should be shared upon request.
- Media Relations and the Right to Know Law
On March 18, 2011, members of the New Hampshire Municipal Management Association gathered at the Local Government Center for a panel discussion on media relations and the Right to Know Law. Coordinated by the New Hampshire Local Government Center (LGC) with participation by the New Hampshire Press Association, panelists included Foster's Daily Democrat Executive Editor Rod Doherty, New Hampshire Municipal Association (NHMA) Government Affairs Counsel Cordell Johnston, Orr and Reno Attorney Bill Chapman and Town of Durham Administrator Todd Selig.
- Local Property Tax Information: Public or Not?
In recent months, New Hampshire Town and City articles have examined aspects of New Hampshire’s Right to Know Law and other state laws and regulations that require certain information to be made public or kept confidential. Many of the questions we receive involve the confidentiality of local property tax information. While much of that information is public, there are a few important exceptions of which local officials should be aware.
- The Not So 'New' Right to Know Law
In 2008, the New Hampshire Legislature adopted the most extensive set of amendments to New Hampshire’s Right to Know Law (RSA Chapter 91-A) in the statute’s 41-year history. At first glance, these amendments can seem a bit unwieldy because of their sheer volume. This has caused some municipal officials to worry that the law has changed in some fundamental way and that local procedures need to be overhauled completely.
- Dealing with E-mail Communication Under New Hampshire's Right to Know Law
One of the thorniest problems for local officials these days is determining how to deal with e-mail communication under New Hampshire’s Right to Know Law. Recommended amendments to the law put forth by the Right to Know Law Study Commission, which became this year’s HB 626, would have clarified many of the issues raised by electronic communications. Unfortunately, however, the bill was effectively killed in the Senate, so the legislative clarification long-awaited by local officials did not come to pass. The legislature will probably take up a similar bill again next year, but in the meantime, the current requirements of the Right to Know Law must continue to be applied to e-mail and other electronic communication issues. Here are some guidelines for local boards and officials for making decisions about these issues.
- The Right to Know Law
New Hampshire Local Government Center – Information on:
- Governmental Records
- Electronic Communications
- Planning Board Minutes (Brent v. Paquette)
- Final Report of the Right to Know Study Commission (Chapter 287, Laws of 2003), October 2004
- "Free Speech at Public Meetings - The New Hampshire Right to Know Law"
by H. Bernard Waugh, Jr., Esq., SNHPC Planning Board Training Workshop, May 1994
Warning: Please refer to the current statute to ensure you have the most up to date statutory references. This document, despite recent changes in the law, continues to remain available given it's valuable information found in Section II "DOES THE PUBLIC HAVE A 'RIGHT TO SPEAK' AT PUBLIC MEETINGS?"
- Legislation Affecting RSA 91-A the Right-to-Know Law:
- HB1223 - relative to remedies under the right-to-know law (Chapter Law 206, 2012)
Effective January 1,2013, the remedy section of the Right to Know law changed in very significant and important ways.
The law that now makes it possible for a court, if it is found that an officer, employee, or other official has violated any provision of the Right to Know law in bad faith, to impose a civil penalty of not less than $250 and not more than $2,000. Such person or persons may also be required to reimburse the public body or public agency for any attorney's fees or costs paid by the public body or public agency in defending a Right to Know law suit.
In addition to the changes in the Right to Know law made in 2012, it is also important to remember that RSA 91-A:8 also allows the award of reasonable attorney's fees and costs incurred as a result of litigation to implement the law. It also allows a court to invalidate an action of a public body or agency taken in violation of the law "if the circumstances justify such invalidation." And lastly, the law empowers the court to enjoin future violations and can require any public officer or employee found to have violated the Right to Know law to undergo appropriate remedial training at their expense.
- HB206 – relative to retention of governmental records under the right-to-know law (Chapter Law 299, 2009)
- HB210 – relative to public access to minutes of local land use boards (Chapter Law 49, 2009)
- SB189 – relative to decisions of local land use boards (Chapter Law 266, 2009)
- HB1408 - relative to the right-to-know law (Chapter Law 303, 2008)
- Court Cases Relative to RSA 91-A the Right to Know Law (See the AG’s Office Memorandum above for a more exhaustive review of case law and its impacts on the state’s right to know law.)
- Cady v. Deerfield Selectmen
No. 218-2001-EQ-00498, Rockingham County Superior Court, 4/23/2012
Frivolous motions under RSA 91-A result in award of fees and costs to defendant town (LGC summary)
- Cameron v. Marlborough Board of Selectmen
No. 213-2011-CV-00337, Cheshire County Superior Court, 2/27/2012
- Thomas Ettinger & a. v. Town of Madison Planning Board
Argued: October 13, 2011 Opinion Issued: December 8, 2011
"Consultations with legal counsel" are not considered "meetings" under RSA Chapter 91-A, New Hampshire’s Right to Know Law. RSA 91-A:2, I(b). This is significant because gatherings which are not "public meetings" do not have to follow the ordinary requirements for notice, minutes and public access. This case explores for the first time the boundaries of what a "consultation with legal counsel" is.
- Lambert v. Belknap County Convention , 157 N.H. 375 (2007) – Regarding filling a vacancy in an elected office
- WMUR Channel Nine v. NH Department of Fish and Game , 154 N.H. 46 (2006) – Regarding public right to access
- Hounsell v. North Conway Water Precinct , 154 N.H. 1 (2006) – Regarding invasion of privacy
- Lamy v. NH Public Utilities Commission, 152 N.H. 106 (2005) – Regarding invasion of privacy
- Hughes v. Speaker of the New Hampshire House of Representatives, 152 N.H. 276, 290 (2005) - Regarding public right to access
- NHCLU v. City of Manchester, 149 N.H. 437 (2003) – Regarding governmental records
- Goode v. New Hampshire Office of the Legislative Budget Assistant, 148 N.H. 551 (2002) – Regarding balancing the competing interests between disclosure and non-disclosure
- Hawkins v. N.H. Department of Health and Human Services, 147 N.H. 376 (2001) – Regarding electronic records
- Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540 (1997) – Regarding access to governmental records
- Webster v. Town of Candia, 146 N.H. 430 (2001) – Regarding meetings
- Brent v. Paquette, 132 N.H. 415 (1989) – Regarding note taking and non-disclosure
- Orford Teachers Association v. Watson , 121 N.H. 118 (1981) – Regarding non-public sessions
- Gallagher v. Town of Windham, 121 N.H. 156 (1981) – Regarding proposed construction plans
- Town of Nottingham v. Harvey, 120 N.H. 889, 894-95 (1980) - Regarding the recess of a meeting until a later date
- Rochester School Board v. N.H. PELRB, 119 N.H. 45 (1979) – Regarding salary and contract information
- Lodge v. Knowlton, 118 N.H. 574, 576 (1978) – Regarding state agencies
- DiPietro v. City of Nashua, 109 N.H. 174 (1968) – Regarding the level of detail required in meeting minutes
Duty to Assist Applicants
- PRESTON T. KELSEY, II & a. v. TOWN OF HANOVER [Argued: May 21, 2008
Opinion Issued: August 20, 2008] 157 N.H. 632
No constitutional duty to take initiative to educate abutters about project and permit/appeal process.
- The Richmond Company, Inc., Individually and as Agent for ATCNH Realty, LLC, v. City of Concord, Argued: February 12, 2003, Opinion Issued: April 11, 2003
Richmond argued that the planning board did not provide meaningful assistance because it did not comment on or question the substance of the application during the public hearings. The supreme court found that Carbonneau and Savage were aimed at preventing municipalities from ignoring an application or otherwise engaging in dilatory tactics in order to delay a project and that those cases did not involve a board’s actions during the public hearing process, in which the board must maintain a certain level of impartiality. Here, the applicant acknowledged that its site plan project received "rigorous review," there was public comment and rebuttal testimony with the applicant filed a detailed letter on the final day the board accepted evidence, addressing issues raised throughout the hearing.
"That the board did not comment on the suitability of the project in response to Richmond’s inquiries prior to its deliberative session and vote is neither inappropriate nor unusual since the purpose of the board’s deliberative session is to decide the issues."
"In light of the record, we cannot conclude that the board acted unreasonably in this case or that it failed to fulfill its constitutional obligation to provide assistance to its citizens."
- Paul Carbonneau v. Town of Rye et al. No. 79-150. Supreme Court of New Hampshire. February 14, 1980 120 N.H. 96 (N.H. 1980)
"We strongly suggest that the town of Rye quickly get "in the business" of attempting to negotiate a workable plan acceptable to both parties. The town's apparent unwillingness to engage in such discussions to date leads us to question seriously whether it is dealing in good faith."
- Savage v. Town of Rye, 120 N.H. 409, (1980)
The town planning board failed to approve or disapprove a site plan application within ninety days as prescribed by statute. In rejecting the trial court’s reasoning that the board did not have to respond to the application because it was improper in form, the court stated that '[n]ot only is such a reading in direct contravention of the statute, but it is also in violation of N.H. Const. pt. 1, art. 1.' Id. The court reminded towns that it is their function to provide assistance to their citizens, and that the "measure of assistance certainly includes informing applicants not only whether their applications are substantively acceptable but also whether they are technically in order."
E-mail Communication Between Board Members
- RSA 91-A: Are We Having a Meeting? - LGC Legal Q & A, New Hampshire Town and City, September 2003
- Dealing with E-mail Communication Under New Hampshire’s Right to Know Law - LGC Legal Q & A, New Hampshire Town and City, July/August 2006
- Chapter Law 287, 2003 AN ACT establishing a right-to-know study commission and relative to meetings open to the public.
- Electronic Communications (published August 2008 by the Local Government Center)
Under amendments that became effective in 2008, public bodies may not conduct official business via e-mail. Municipal Web sites may be used as one of the two places for publicly posting notice of meetings. Electronic records must be made available to the public upon request and must be kept for the same length of time as a paper counterpart. Electronic records are considered "deleted" (and no longer available to the public) when they have been "initially and legally deleted" so that they are no longer readily accessible to the public body itself. This means (a) the record wasn't required to be retained any longer, and (b) it has been deleted and the "trash" or "recycle bin" folder has also been emptied.
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