Legal Q and A: 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.

Q. A citizen asked to see the text of the proposed wetlands ordinance that all of the members of the planning board have been considering during the last two monthly meetings of the board. I told her that the ordinance was only a draft, and that we didn’t know if the planning board would even bring it to a public hearing, or to town meeting for a vote. Since the language is not ready for a public hearing, I refused to let her see the document. Was I correct?

A. No. Once items have been disclosed, circulated, or made available to a quorum or a majority of the members of a public body, they lose their exemption from disclosure in accordance with RSA 91-A:5, IX, even though they are in “draft form” or otherwise “not in final form.” The New Hampshire Supreme Court reached the same conclusion in Goode v. N.H. Office of Legislative Budget Assistant, 145 N.H. 451 (2000). The court has determined that the time the draft document becomes subject to disclosure is the point that it is distributed to the quorum or majority of the public body. See ATV Watch v. N.H. Department of Transportation, 161 N.H. 746 (2011).

Q. Does that mean that every individual copy of a “draft” document that was provided to all of the members of the board must be collected and preserved in our files?

A. No. Important definitions are found at RSA 91-A:1-a, III and IV:

III. “Governmental records’’ means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records’’ includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records’’ shall also include the term "public records."

IV. "Information" means knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.

While the description of items that may be a governmental record is extremely broad, an item does not meet the definition until it is either received on behalf of a public body by an authorized person, or has been provided to a quorum or majority of a public body in furtherance of its official function.

Thus, while a working draft of a proposed ordinance becomes a governmental record when provided to a quorum or majority of a public body, the individual working copy kept by a board member is not a governmental record unless that specific copy has somehow been copied or shared with a quorum or majority of the public body, or it is the only copy remaining in existence, and a request for disclosure has been received.

Q. Does that mean that as board members we should not be using our individual or business email accounts to comment among ourselves when we receive draft documents?

A. Correct! These issues apply to any governmental record that is not in final form, which may range from proposed ordinance revisions, proposed budgets and other financial records, and draft minutes of the public body. It applies to documents in written form, and also to all electronic communications. There are actually two problems that could result from this practice.

First, RSA 91-A:2-a prohibits deliberation by public bodies on matters under their control in places or at times that are not properly posted as public meetings, or in places where citizens are not able to observe the public body at work. If members of a body start commenting on a draft document using email, or sending marked up versions of a document to colleagues as an email attachment, they are in fact deliberating outside of a properly posted public meeting, and in a place where the public cannot see the public body at work.

There is a limited exception to this principle in RSA 91-A:2, I(d) which permits the “circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting....” Thus, a draft of an adjudicative decision of a land use board may be circulated, but that does not allow email deliberation of proposed changes to the draft through sequential communications.

Secondly, the “sequential communications” of the electronic communications, as well as the various draft documents and comments, become governmental records when provided to a person authorized to receive them on behalf of the board or when available to a quorum or majority of the public body. While an individual member may only intend to direct an email or a reply to a single person, the recipient might hit “reply all” or may send the thread to others. Thus, every email communication has the potential to violate the Right to Know Law if anyone in the chain of the discussions redistributes the communication widely.

Q. You mentioned the minutes of all meetings of all bodies. I know that our “draft” written minutes must be available to the public within five business days of the meeting, even though the board hasn’t approved them. Are there other issues with the minutes?

A. A provision in RSA 91-A:4, II, reads:

II. After the completion of a meeting of a public body, every citizen, during the regular or business hours of such public body, and on the regular business premises of such public body, has the right to inspect all notes, materials, tapes, or other sources used for compiling the minutes of such meetings, and to make memoranda or abstracts or to copy such notes, materials, tapes, or sources inspected, except as otherwise prohibited by statute or RSA 91-A:5.

That is, whatever materials are used to create the minutes of the meeting are subject to disclosure, review and copying. Usually this involves the written notes of a staff person who will prepare the minutes of the meeting for the public body, but it could include the notes of a member of the body who will prepare the minutes. It could include an audiotape, videotape, a Power Point presentation, and the minute taker’s copy of a draft document that is used or discussed in the meeting. It is common for board members to provide a handwritten copy of a complex or detailed motion to the minute taker, and this document would be subject to disclosure. Since disclosure includes any notations or markings on paper, or any verbal comment preserved on an audio or video recording, it is important for all members of all bodies to remember to keep their notations and comments on a professional level if there is any chance that these materials will be used to create the written minutes.

Q. Does this duty to disclose extend to all preliminary documents or electronic files that our staff members create or share between themselves?

A. No. Going back to the definitions, such preliminary documents, communications, or files do not become governmental records until they have been received on behalf of a public body, or shared with a quorum or majority of the public body.

Here are some examples. The police chief and town administrator are working on an early draft of the next budget. The chief asks questions, and the answers are provided by the administrator by reference to the town’s accounting software. This is an example of staff work that will ultimately create the documents shared with the governing body, and the budget committee. The early staff work discussions at the staff level are not subject to disclosure under the Right to Know Law.

The chief makes a presentation of his draft budget to the selectmen at a public meeting. A copy of the draft budget document, which includes explanatory notes by each line, is given to each member of the board. That presentation is a governmental record subject to disclosure.

The selectmen ask for changes to the draft budget during the public meeting. One selectman makes notes on his copy of the presentation, and gives it to the minute taker to assist in the creation of the minutes. That marked-up copy of the presentation is subject to disclosure, since it will be used to create the minutes. Another selectman makes notes on her copy, and takes the copy home for her personal use. These notes are not a governmental record. See RSA 91-A:5, VIII.

Q. This makes me think we should have a policy for the retention and destruction of all of these materials that are not in final form. What can I use for guidance in creating the policy?

A. Such a policy is encouraged under both the Right to Know Law and the Disposition of Municipal Records Act, RSA 33-A. In RSA 91-A:4, the law specifically refers to electronic records which have been “initially and legally deleted.” In RSA 33-A:3-a, there is a detailed minimum retention schedule for many records created in the ordinary course of business. However, take special note of RSA 91-A:9. It is a criminal act (a misdemeanor) to destroy “information” to prevent its disclosure under the Right to Know Law. Thus, if someone has asked for certain information, it must be preserved until its status under the law is determined. However, if the material has been destroyed in accordance with a policy that complies with both the Right to Know Law and the Disposition of Municipal Records Act, and prior to any request for disclosure, there can be no violation of this section. Not only will such a policy preserve precious space for the retention of records that must be saved, it will prevent retention of items that were ultimately revised, and that do not accurately reflect the actions eventually taken by public bodies on the issues of the day.

Local officials in NHMA-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest, Monday through Friday from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.