Beyond RSA 91-A: How Public Is That Information?
By C. Christine Fillmore, Esq.
A lot of information flows through town and city offices in New Hampshire, and a lot of local officials and employees are expected to manage it. Town clerks, tax collectors, selectmen, town managers and administrators, office staff, public safety professionals, land use boards—virtually everyone in local government collects, creates, submits, organizes, uses and/or safeguards information about a variety of topics. Some of this information is public; some of it is not. While most officials and employees have a working knowledge of New Hampshire’s Right to Know Law, RSA Chapter 91-A, it is not the only law affecting the way information must be handled. Many other laws prohibit or limit the release of certain information. How many can you identify?
The following list includes many, but by no means all, of the lesser-known restrictions on the release of municipal information.
Names of Local Welfare Recipients
Regardless of any other legal requirement to release information about municipal expenditures, RSA 165:2-c prohibits all local officials from publishing or disclosing the name, address or any other identifying information about any person who has received local welfare assistance, except as necessary to administer that assistance. This means that the welfare administrator may (with properly signed releases) discuss the information as required to verify eligibility and coordinate assistance, but otherwise the information may not be published in the annual report or any other document, it may not be released to the public, and it may not be included on internal reports that will be seen by anyone other than welfare officials. Any taxpayer may see an itemized account of welfare assistance furnished by the municipality, without the names or other identifying information of those who have received it.
Eligibility for Certain Property Tax Exemptions
Some local property tax exemptions have income or asset limitations. It is often necessary to collect information from people who are applying for those exemptions to verify that they meet these limitations. Unless otherwise provided by a different law, all documents submitted by the applicant for these purposes are confidential. They must be handled in a way that protects the privacy of the individual and may not be used for any other purpose except the purpose for which they were obtained. All documents submitted by the applicant (and copies) must be returned to the applicant after a decision is made. RSA 72:34, II.
Elderly Exemption to Property Tax
The names of people receiving an elderly property tax exemption under RSA 72:39-b may not be disclosed or printed in any list, with one exception. Under RSA 74:2, when the selectmen make the list of property eligible to be taxed, they must make a separate inventory of all property which would be taxable if it was not exempt under some other statute. RSA 72:40-b.
Motor Vehicle Records
Motor vehicle records are not public and may not be disclosed to anyone except for certain categories of persons identified in the statute. RSA 260:14, II. One exception that may be relevant to municipal officials is RSA 260:14, III, which states that motor vehicle records may be made available “in response to a request from … a political subdivision of a state … for use in official business. The request shall be on a case-by-case basis. Any records received pursuant to this section shall not be further transferred or otherwise made available to any other person or listed entity" not otherwise permitted to see the records under this statute. Department of Safety regulations deal with this process at great length. See N.H. Admin. Code Saf-C 5600 et seq., which may be found at www.gencourt.state.nh.us/rules/saf-c5600.html. It is not clear whether Department of Motor Vehicles (DMV) officials would be inclined to grant a request for, say, information verifying the residence of a person who applied to a municipality for the elderly property tax exemption. However, if they were to release such information to a municipality for this purpose, the municipality would be prohibited from disclosing the information any further.
Enhanced-911 System Information
Information and records compiled under RSA Chapter 106-H (Enhanced-911 System), such as listings of streets and house number ranges in a municipality and lists of all numbered structures on each street with multiple structures within the municipality, are not public records for the purposes of RSA Chapter 91-A regardless of the use of that information for Enhanced-911 purposes. The State bureau of emergency communications will only make this information available on a case-by-case basis to law enforcement for investigative purposes, or to the New Hampshire Department of Environmental Services solely for the purpose of estimating the location of wells by the State water well board under RSA 482-B. RSA 106-H:14.
Pistol Permits and Application Materials
Towns and cities administer applications for pistol permits under RSA 159:6. All papers and records pertaining to the issuance of pistol permits, including applications and the permits themselves, are confidential and may only be disclosed to federal, state or local law enforcement officials while in the performance of official duties, or upon order of the superior court in the county where the permit was issued. RSA 159:6-a.
Local Dog Registrations
Town and city clerks are required to register dogs owned by residents, and to record the names of the owners and the names, descriptions and registration numbers of the dogs. RSA 466:11. Except for the specific disclosures required or permitted by the statute, no dog registration records, information or lists may be sold, rented, transferred or otherwise made available in whole or in part, in any form, directly or indirectly, to anyone. RSA 466:1-d, I.
Some of the required or permitted disclosures include:
1. Lists given annually by the clerk to the governing body of those owners who have failed to renew their license, for use in preparing the warrant of unlicensed dogs. RSA 466:11, I. The governing body then issues the warrant to a local official authorized to issue a civil forfeiture for, and/or to seize, each unlicensed dog. RSA 466:14.4
2. With the owner’s consent, a veterinarian may report the euthanizing or death during treatment of a licensed dog to the clerk to have the record reflect that the dog was euthanized or died. A veterinarian providing such a report may also provide the clerk with the mailing and street addresses of the owner of the dog. Written reports, if any, shall be destroyed after receipt by the clerk, and any resulting record reflecting the dog’s death shall not specify the manner or cause of death. RSA 466:11, II.
3. The clerk may release information under a court order or in response to a request from the federal, state or local government or a law enforcement agency solely for use in official business. The request shall be on a case-by-case basis. The recipient of such information may not make it available to anyone else except for the purposes of forfeiture under RSA 466:13. RSA 466:1-d, II.
4. The municipality may release information relative to health or safety from investigative files on a limited basis to those whose health or safety may be affected, or to someone attempting to provide for the welfare of an animal. RSA 466:1-d, III.
Information Regarding Abandoned Property
On occasion, local officials provide information to the State Treasurer’s department of abandoned property regarding unclaimed or abandoned property. The State then notifies people of abandoned property using the lists forwarded by local officials. Any information furnished to the State in this manner is confidential except as necessary in the proper administration of the notification process by the state. Any identifying information included in any report, record, claim or other document submitted to the State concerning unclaimed or abandoned property is a confidential record and may be made available to the public only in the discretion of the State Treasurer. RSA 471-C:20, VII.
Public checklists: The public voter checklist as corrected by the supervisors of the checklist must be open to public inspection by any person at all times before the opening of a meeting or election at which the list is to be used. This means that, once the supervisors have corrected the list, anyone must be allowed to view it. RSA 654:31, II. However, “no person shall use or permit the use of checklist or voter information provided by any supervisors of the checklist or by the secretary of state for commercial purposes." RSA 654:31, VI.
Nonpublic checklists: If a voter presents the supervisors of the checklist with a valid protective order under RSA Chapter 173-B, that voter’s name and address shall not appear on the public checklist. The name, address and mailing address, if different, of such a voter shall be maintained on a separate, nonpublic list of voters, which shall not be available to the public and is not subject to RSA Chapter 91-A. If it is necessary to establish such a nonpublic list, the public checklist shall be marked at the end with a notation of the number of voters whose names are maintained on the nonpublic list. RSA 654:25.
With three exceptions, criminal records are not available to the public: (1) law enforcement officers may obtain criminal records for official purposes; (2) a person may obtain copies of his or her own records; and (3) a person may authorize another person in writing to obtain a copy of the criminal record. RSA 106-B:14.
Municipalities may require a background investigation and criminal records check on any prospective employee who would be required to work with or around children or the elderly, to enter the homes of citizens or to collect and manage money. However, once obtained, the municipality must maintain the confidentiality and security of all criminal history records information it receives pursuant to this authority. RSA 41:9-b.
Police Personnel Files
Personnel files of police officers are generally confidential. RSA 105:13-b provides an exception when an officer is a witness or prosecutor in a criminal case. If the judge in the case determines that there is probable cause to believe that the personnel file contains evidence relevant to that criminal case, the judge may order the police department to turn over the file for the judge to review. Only those portions of the file that the judge determines are relevant to the case are released for use in the case; the remainder of the file is treated as confidential and returned to the department. RSA 105:13-b.
Vital records are certificates or reports of birth, adoption, death, fetal death, marriage, divorce, legal separation or civil annulment. RSA 5-C:1, XXXVI. Generally speaking, the town or city clerk may only disclose vital records to a person who demonstrates a “direct and tangible interest" in the information. RSA 5-C:9; RSA 5-C:98. Who has this interest? According to RSA 5-C:102, only the following people:
1. The registrant (the person about whom the record was made);
2. Immediate family members (parent, child, sibling, spouse, grandparent, grandchild, great-grandchild, step-parent, step-child, aunts, uncles, nephews and nieces; and, in the case of divorce, legal separation and civil annulment records, the person’s for-mer or separated spouse from a legal separation or a marriage ending in divorce or civil annulment);
3. Legal guardian or representative (“legal representative" is an attorney, physician, funeral director or other representative, who through written authorization from the registrant is acting on behalf of the registrant or his or her family);
4. Persons demonstrating a need for information for the determination or protection of a personal or property right;
5. Members of the news media when the information requested is of a public nature;
6. Persons authorized by the immediate family to conduct genealogical research; and
7. The spouse of a legally divorced or separated person requesting certified copies of such divorce, legal separation or civil annulment record.
However, the natural parent of an adopted child who has been adopted outside the natural parent’s immediate family does not have a direct and tangible interest in the vital records of the adopted child.
Media requests: Media requests may only be granted by the State, so town and city clerks receiving requests from the media for vital records should refer them to the State Division of Vital Records Administration. RSA 5-C:104.
Official requests: Law enforcement officials, court officials and representatives of the Attorney General’s office demonstrating a direct and tangible interest may obtain access to vital records on a case-by-case basis, at no charge.
Municipal reports: It is common in some towns to print certain vital records in the annual report. However, there is no statutory requirement to print any vital information in the town report unless a written request has been made by the registrant. If a resident asks in writing that a particular vital event be omitted from the annual report, the town must always comply with that request. If a resident asks in writing that a certain event be published in the report, including the birth of a child to an unwed mother, the town must also grant that request. Items included in a report for birth must be limited to the child’s and parents’ names, place and date of birth. Items included in a report of death must be limited to the name of the deceased, the place and date of death, the name of the father and the maiden name of the mother. Items included in a report of marriage must be limited to the names and places of residence of the bride and groom and the date of the marriage. RSA 5-C:102, XI.
Paternity judgments and affidavits, legitimation and change of sex documents: State agencies shall be granted access to these records when a specific legal authority is presented. The registrant and parents, legal guardians or legal representatives may also access the record, and any disclosure order from a court of competent jurisdiction shall be honored. RSA 5-C:107, II.
Requests from genealogists: Birth records more than 100 years old, and death, marriage and divorce records more than 50 years old are considered to be part of the “public domain." RSA 5-C:105. A person authorized in writing by the registrant or his/her immediate family to be a genealogist may request records from a municipal clerk. RSA 5-C:106.
Christine Fillmore is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.