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LEGAL Q&A: The New Hampshire Right-to-Know Law: A Year in Review

New Hampshire Town and City, July/August 2018

By Stephen C. Buckley, Esq.

The Right-to-Know Law, RSA Chapter 91-A, imposes constitutional and statutory duties on all government officials to ensure access to governmental proceedings and records. N.H. Const. pt. 1, art. 8.   This review covers cases issued and legislation adopted touching upon compliance with the Right-to-Know law since June 2017.

Taylor v. SAU #55, 170 N.H. 322 (2017)
The New Hampshire Supreme Court held that the School Administrative Unit’s policy requiring use of a thumb drive to produce electronic records was valid under The Right-to-Know Law.  

The plaintiff, Taylor, requested school board minutes be sent to him by email. He was instead informed of the SAU’s policy that required electronic records to be produced on a thumb drive—either supplied by the requester or supplied by the SAU, in which case the requester must pay the actual cost of the thumb drive, which is $7.49. The plaintiff filed a lawsuit, alleging that the SAU’s refusal to send the minutes by email was a violation of 91-A. The trial court determined that the thumb drive policy did not violate the law.

The New Hampshire Supreme Court agreed with the trial court. The Court said that the SAU was properly charging the “actual cost” of copying as permitted under RSA 91-A:4, IV, since $7.49 was the actual cost of a thumb drive. The Court reasoned that there is nothing to suggest that statute was only meant to apply to paper copies. A thumb drive is just one permissible medium to which a record can be copied.

The Court also noted that there is nothing in RSA Chapter 91-A that requires actual delivery of records, nor does the law require delivery of electronic records in the manner requested here—email. The Court determined that copying records to a thumb drive satisfied the plaintiff’s request to provide the records in electronic form and did not limit his ability to review the requested records. 

Finally, the Court shared the SAU’s concerns about the unreliability of sending records via email and the potential cybersecurity threats that may be increased by sending attachments to emails. Even though the SAU and its staff may use email regularly for other purposes, due to the importance of documenting compliance with The Right-to-Know Law, it is proper for the SAU to use a more formalized process for responding to records’ requests.

Therefore, because the thumb drive policy did not diminish the use of governmental records, and served the important purposes of protecting public bodies’ and public agencies’ information technology systems, the Court held the policy was reasonable and did not violate RSA Chapter 91-A.  

Practice Pointer: This case reaffirms two important provisions of The Right-to-Know Law. First, there is no requirement that records be delivered to a requester, just that they be made available. Second, neither the Court’s decision in Green v. SAU #55, 168 N.H. 796 (2016) nor RSA 91-A:4, V requires a public body or public agency to send electronic records via email.

Legislative Changes from 2018 Legislative Session:

Content of Meeting Minutes.  An amendment to RSA 91-A:2, II (HB 1347) will now require that minutes of public meetings include the names of the public body members who made or seconded each motion considered at a public meeting.  Effective Date:  January 1, 2019. 

Court Procedures Governing Right-to-Know Complaints: An amendment to RSA 91-A:7 (HB 252) provides that all documents filed with the Court as part of a Right-to-Know petition shall be considered as evidence by the Court, subject to any objections by either party.  All such documents must be provided to the opposing party prior to a hearing on the merits.  Effective Date:  January 1, 2019. 

Legislative Changes From 2017 Legislative Session:

Retention of Electronic Records and Disposal of Paper Records. An amendment to RSA 33-A:5-a, clarifies that any municipal records in paper form that are listed in the disposition and retention schedule under RSA 33-A:3-a may be transferred to electronic form, and the original paper records may be disposed of as the municipality chooses (subject to other limitations in law). Electronic records with a retention period of 10 years or less may be retained solely electronically in their original format; those with a retention period longer than 10 years must be transferred to paper or microfilm or stored in portable document format/archival (PDF/A). The municipal committee established under RSA 33-A:3 must review documents and procedures at least once every five years for compliance with guidelines issued by the Secretary of State and the municipal records board. Statute effective date: August 7, 2017.

Commission on Processes for Resolving Right-to-Know Complaints. An amendment to RSA Chapter 91-A, adopting RSA 91-A:8-a, established a commission to study alternative processes to resolve complaints under the Right-to-Know Law. The work of the commission brought about the introduction of SB 555 that would have created a right-to-know appeals commission and a right-to-know law ombudsman establishing an alternative process to resolved Right-to-Know complaints.  SB 555 was voted inexpedient to legislate on April 26, 2018.

Recording Objection to Discussion by Public Body. An amendment to RSA 91-A:2 added RSA 91-A:2, II-a.  This new provision states that if a member of a public body believes that any discussion in a meeting of the body violates the Right-to-Know Law, the member may object to the discussion; if the discussion continues, the objecting member may request that his or her objection be recorded in the minutes and may then continue to participate without being subject to penalties under the Right-to-Know Law. The public body must record the member’s objection in the meeting minutes. Effective Date: January 1, 2018.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.

 

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