By C. Christine Fillmore, Esq.
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.
The good news is that the underlying principles of the law have not changed. Although many sections were rewritten significantly, the two basic principles remain the same: (1) meetings of public bodies must be properly noticed, open to the public and recorded in minutes; and (2) records of public bodies and public agencies must be made available to the public upon request for inspection and copying.
The original law was adopted in 1967, long before e-mail and other electronic communications existed. It is not surprising, then, that it has become increasingly difficult in recent years to handle these new methods of communication in compliance with a law that never contemplated their existence. Rather than changing the scope of the requirements for public meetings and public records, the bulk of the new law simply clarifies how to apply these requirements to electronic records and communications. The changes are consistent with the interpretations of the original statute shared by most municipal attorneys. This means that if local officials have been careful about their use of electronic communications and have maintained their electronic records conscientiously, they should not have to make significant changes to their practices.
So what has changed? Following is a brief description of the legal requirements for electronic communications under the new law:
E-mail as a Meeting?
No. Legal meetings may never be conducted by e-mail or any other format which does not allow the public to hear, read or discern the discussion contemporaneously at the meeting location.
Boards may (but are not required to) permit one or more members to participate in a meeting by telephone or other electronic means, if (1) physical attendance is not reasonably practical (note in minutes); (2) all members can simultaneously hear and speak with each other; (3) except in an emergency, a quorum is still present physically in the location where the public was told the meeting would occur; and (4) all parts of the meeting are audible or otherwise discernible to the public in that location.
What Is a ‘Meeting’?
When a majority of a public body convenes to discuss or act on any matter within its jurisdiction, it is a meeting whether the members “convene" in person, by telephone or electronic communication, or in any other way in which all members may communicate with each other contemporaneously (but, as noted above, meetings may not be held by e-mail or online chat because the public cannot hear, read or discern the discussion contemporaneously at the meeting location).
Public bodies may only deliberate in properly held public meetings and may not use communication outside a meeting (such as sequential e-mails or phone calls) to circumvent the spirit or purpose of the law.
Posting Meeting Notice on the Internet
Notice of meetings must be posted in at least two public places, one of which may be the public body’s website.
Formerly referred to as “public records," governmental records include any information created, accepted or obtained by a quorum of a public body or by a public agency (for example, the clerk’s office, police department or other municipal office), in any physical format, received in or out of a meeting, in furtherance of the body’s or agency’s official function.
Just like paper records, electronic governmental records must be made available to the public upon request unless an exemption applies.
Electronic governmental records must remain accessible to the public for the same length of time as their paper counterparts. Check RSA 33-A:3-a for a list of retention periods for certain categories of records. If a record must be kept for more than 10 years, it must also be transferred to paper or microfilm.
When Is an Electronic Record No Longer Subject to Disclosure Under the Right to Know Law?
When it has been “initially and legally deleted" so that it is no longer readily accessible to the public body. Simply deleting it is not enough; the “Deleted Items" or “Recycle Bin" folder must be emptied as well. A record is “legally" deleted if the retention period has ended and there are no outstanding or disputed requests for that item.
Of course, this is a very simplified overview of the new portions of the law. Municipal officials are well-advised to learn as much as they can about the Right to Know Law and how it applies to their positions within the municipality. More information is available in a variety of locations. LCG’s website includes a Right to Know Law page with links to the online version of the 2008 amendments and the full statute incorporating the amendments. There are also links on that page to three downloadable reference posters about public meetings, governmental records and electronic communications. Two other LGC publications that may be helpful are Part 1 of Land Use Legislation 2008 (LGC’s 2008 Municipal Law Lecture #1) and Chapter 5 of Knowing the Territory—A Survey of Municipal Law for New Hampshire Local Officials (updated edition to be available spring 2009).
In addition, the Office of the New Hampshire Attorney General has posted on its website a comprehensive memo regarding the Right to Know Law, available at http://doj.nh.gov/publications/right_to_know.html. Although this memo has not yet been updated to include the recent amendments, it is a very helpful resource regarding other aspects of the law.
As is the case with many legal issues, the correct answer under the Right to Know Law often depends upon the specific facts and circumstances involved. If you need more information or have specific questions regarding any aspect of the Right to Know Law, please refer to the full text of the law and consult with legal counsel.
Christine Fillmore is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.< Back to Town And City Home