Just Below the Surface:Current Issues under RSA Chapter 91-A

C. Christine Fillmore

With few amendments to RSA Chapter 91-A and no major New Hampshire Supreme Court opinions in 2015, one might think nothing new has been happening with the Right-to-Know Law. Do not be fooled. Over the past year, several of issues of municipal concern regarding public meetings and governmental records have swirled just below the surface in the legislature and the superior courts. These issues are likely to be among those in the forefront in coming months.

Discussing Written Legal Advice

When a board gets written legal advice from its attorney, when may the board discuss that advice? Must it occur in a formal meeting? This question was considered by the legislature in 2015 and is on the agenda again in 2016.

Under RSA 91-A:2, I(b), consultation with legal counsel is exempt from the definition of a “meeting,” even if a majority of the members are present. This exemption permits boards to meet with their attorneys to discuss legal issues outside of a formal meeting. However, when the lawyer provides written legal advice, the board may not discuss it outside of a meeting unless the attorney actively participates by being present or on the telephone with the board. Ettinger v. Madison Planning Board, 162 N.H. 785 (2011). If the lawyer is not available, the board may read the advice but cannot discuss it except in a formal meeting, and that discussion may only occur in a nonpublic session if it involves a topic for which a nonpublic session is permitted.

This situation presents some obvious practical difficulties. First, a public body may only enter nonpublic session for a reason listed in RSA 91-A:3, II. That list does not include “general legal advice.” Of course, litigation pending or threatened in writing may be discussed in a nonpublic session, but often, the point of legal advice is to prevent litigation. Second, written legal advice can be an efficient and cost-effective way for a lawyer to convey information to a board. However, if the board cannot discuss that information outside of a meeting and the subject matter is not appropriate for a nonpublic session, the board must incur the extra expense of the attorney’s time and travel, and municipal operations may be less efficient. This is the issue before the legislature.

Charging for Governmental Record Requests

RSA 91-A:4, IV states that the person requesting copies of governmental records may be charged “the actual cost of providing the copy,” but we have no real guidance about what this means. Can a municipality charge only for the cost of paper, toner, etc., or may it also recover costs of staff time to find, compile, and copy the records? What about attorney fees to review and redact records? Current best practice is to charge only for the cost of the copies themselves and not for staff or lawyer time. This is not an issue with the average request because it takes relatively little time. However, for larger requests, the time and costs can add up.

A bill addressing this problem was tabled in the House in 2015 for further study, but the subject created some lively debate. More than one bill was introduced in the 2016 session to tackle it. It boils down to who pays the cost of large document requests—the citizen or the government (which raises its funds from all citizens through property taxation)? One concern among legislators was the difficulty of distinguishing between legitimate and frivolous requests. Those opposed cited concerns about a chilling effect on the availability of governmental records and called the cost of providing records part of the “cost of government.” Those in favor of cost recovery noted that the vast majority of requests take less than an hour, and even the most aggressive proposals would have capped fees at minimum wage (far less than the actual costs). This is likely to generate significant discussion in the 2016 legislative session.

Do Applicants for a Municipal Job have a Privacy Interest in the Fact that they have Applied?

A governmental record may be exempt from disclosure if doing so would constitute an invasion of privacy. RSA 91-A:5, IV. When a person runs for elected office, everyone knows that fact and the records containing it are public. However, does a person who applies to be hired for a town or city job have an interest in keeping it confidential? An order by a superior court judge in 2015 implies that the answer may be “no.”

The case of Clay v. Dover (Strafford Cty. Superior Ct, No. 219-2014-CV-124, May 29, 2015) involved a request for records related to the process used by the School District to hire a new superintendent. One part of the request was for the names of all candidates for the position. The City denied the request, citing the privacy interest of the candidates. The Court’s order stated that there was “no information that any applicant expected his or her identity to be withheld,” and that “the argument that simply revealing the fact that a person applied for the position violates the person’s privacy is unavailing.” The Court later issued another order denying the City’s motion to reconsider (October 30, 2015), in which it cited a variety of opinions from other states to support its reasoning that (a) no facts suggested that the applicants had a reasonable expectation of privacy, (b) they had only a “modest privacy interest” in having their names withheld, (c) being rejected for a job isn’t something serious enough to require the names to be withheld, and (d) the public interest in the workings of the superintendent selection committee outweighs the applicants’ modest privacy interest.

What the Court seemingly dismissed is the common understanding that, as people who have applied for one job while currently holding another can attest, the fact that a person has applied for a job can be a sensitive fact. Moreover, a public body may enter nonpublic session to consider hiring any public employee (RSA 91-A:3, II(b)), which seems to imply that candidates have some privacy interest at stake. In addition, the Court seemed to find persuasive the fact that the candidates were not told their names would be confidential. This raises a question of whether the government can create a reasonable expectation of privacy in the job-application process, going against the long-established concept under RSA 91-A that privacy interests are judged by an objective standard. Lamy v. PUC, 152 N.H. 106 (2005).

The result in this case may have an unfortunate chilling effect on the willingness of qualified people to apply for public-sector jobs if they are concerned that their current employer can learn that they are looking elsewhere for employment. As a superior court order (not appealed by the City), Clay v. Dover is not controlling on other superior courts or the New Hampshire Supreme Court. However, it raises some significant questions going forward.

Police Videos and Body Cameras

In 2015, the Merrimack County Superior considered whether police video and audio documenting the death of a suspect as he was shot by police was discloseable under RSA 91-A. Estate of Esty-Lennon v. State of NH (Docket No. 217-2015-CV-376, September 4, 4015). The Court’s order focused on whether the footage, taken by dashboard and body cameras, was wholly or partly exempt from disclosure as records whose release would invade the privacy of the decedent’s family under RSA 91-A:5, IV. The Court used the three-part balancing test from Lamy v. PUC (152 N.H. 106 (2005)): (1) Does someone have a privacy interest in the record? (2) If yes, what is the interest of the public in having the record disclosed? (3) Balance the privacy interest and the government’s interest in not having the record disclosed against the public interest in disclosure.

This was the first time a New Hampshire court considered whether family members have a privacy interest in law enforcement records containing graphic and disturbing images of a decedent’s death. The Court found there was a “strong” and “heightened” interest in the portions of the video showing up-close and graphic images which outweighed the public’s interest in determining whether police action and the Attorney General’s response were proper. On the other hand, the family had a “lesser” privacy interest in the remainder of the video and audio which was outweighed by the public’s interest in disclosure, so those portions were ordered to be released.

On the legislative side, two bills were considered in 2015 regarding the use of police body cameras and were retained by the House (which means they may be taken up again in the 2016 session). Another bill has been introduced in the 2016 session, HB 1492, addressing the same issue. This bill would exempt body-cam recordings from disclosure under RSA 91-A. As we go forward in this new age of police videos, this issue bears watching.

C. Christine Fillmore is a municipal attorney with the firm of Gardner, Fulton & Waugh. She can be reached at cfillmore@townandcitylaw.com or 603-448-2221.