LEGAL QA: The Right-to-Know Law Ombudsman – an Update
Thomas F. Kehr, New Hampshire’s Right-to-Know Law Ombudsman, officially opened his office to receive complaints on January 27, 2023. The first filing he received was within hours of his being sworn in. The Ombudsman goes by the acronym RKO.
The RKO statutes contemplate the adoption of administrative rules governing the process for handling complaints. However, since the RKO had to commence processing complaints the moment he was in office, on an interim basis he has issued a procedural order temporarily implementing NH Admin Rules Jus 800, Model Rules of Practice and Procedure; RKO General Procedural Order 1 – pre-Rulemaking dated March 17, 2023. That order along with other notices issued by the RKO can be found at the following website address: https://www.sos.nh.gov/administration/office-right-know-ombudsman. At that website the RKO publishes Notices of Hearings, along with other notices, resources and an FAQ. The RKO also posts notices on the RKO bulletin board outside his office; on the welcome board on the first floor of the State House Annex and on the bulletin board in the State House basement, near the cafeteria.
When the RKO receives a complaint along with the filing fee he sends the parties an explanatory procedural letter. That letter delineates the current procedural rules under Jus 800, recites the statutory complaint process found in RSA 91-A:7-b, reminds the target of the complaint the duty to reply within 20 days, and requests both parties to file appearances.
Since January the RKO has received 12 complaints. Here is a list of those matters as of July 20, 2023, along with a brief summary of the status or disposition by the RKO;
2023-001: In Re: NH Department of Transportation-1: Issue: Did NHDOT comply with RSA 91-A:4 and provide records requested by the claimants Stephen and Patrice Rasche. Still pending as of July 20th.
2023-002: In Re: Town of Newmarket - 001 (Clay): Issue: Alleged failure to properly respond to various requests by claimant Jeffrey Thomas Clay. Dismissed with prejudice.*
RKO 2023-003 In Re: Town of Newbury -001 (Billado): Issue: Whether the Town complied with the claimant’s request for records under 91-A. Hearing held with decision issued (summarized below).
RKO 2023-004 In Re: Town of Milford – 001 (Koko): Issue: Whether reason for emergency meeting in must be reflected in meeting minutes. Decision issued (summarized below)
RKO 2023-005 In Re: Town of Newmarket -002 (Clay): Issue: Alleged failure to properly respond to various requests by claimant Jeffrey Thomas Clay. Dismissed with prejudice (settled).**
RKO 2023-006 In Re: Town of Deering -001 (Whisman): Issue: Alleged failure to provide recording of public meeting. Hearing held with decision issued (summarized below).
RKO 2023-007 In Re: Town of Kensington - 001 (Brandano): Alleged failure to respond to a document entitled “Remonstrance and Trespass,” and alleged failure to provide governmental records. RKO was going to rule on motions to dismiss by the town on or after July 21, 2023.
CONSOLIDATED. RKO 2023-008 In Re: Amherst School District Ways & Means Committee -001 (Hanson-Amherst Education Association): Issue: Alleged failure to properly respond to request for meeting and Zoom minutes of a meeting on an unspecified date. Still pending.
RKO 2023-009 In Re: Amherst School District Ways & Means Committee -002
(Ballard): Issues: Failure to identify motion maker in minutes and concern about committee business being conducted outside of a properly noticed meeting. On July 18, the RKO issued order dismissing case with prejudice by reason of settlement. *
RKO 2023-10 In Re: City of Rochester -001 (Beaudoin): Claimant city council member seeking ruling on whether nonpublic sessions were proper. On June 8, 2023 this case was dismissed with prejudice by the RKO.*
2023-011 In Re: NH Department of Health and Human Services – 001 (originally Flammia, on behalf of Soto, Halle, Mason and Jerome): Alleged failure to provide records, failure to acknowledge existence of records, whether claimed record exemption applies, whether DHHS administrative rules apply, whether record access denial violates public policy. Matter still pending, hearing scheduled for August 13.
2023-012 In Re: Carroll County – 001 (Deshaies): Alleged failure to respond to specific record requests. On July 6, RKO received notification from claimant, with thanks, stating that his RTK had been fulfilled. On July 12, case dismissed with prejudice effective July 20, if no further pleadings.*
Here is a summary of the three RKO decisions that merit attention:
RKO 2023-003 In Re: Town of Newbury -001 (Billado): Harry Billado claimed the Town failed to properly address his record request submitted on September 20, 2022. Billado submitted what the RKO characterized as a discovery request in the context of litigation as opposed to a request for documents under RSA 91-A. At the hearing a town employee testified she promptly gathered all town records that could possibly be responsive to the request, and she invited Billado to visit town hall to personally review those files. The RKO found the town’s response to Billado was within the 5-day response time dictated by RSA 91-A:4, IV (b). Regarding the files gathered by the town, Billado appeared to complain that too much, rather than too little, was offered for his review. He testified that he did not actually review the materials gathered for him in response to his broad inquiry because he did not know where to begin. Billado contended the town’s records should have been organized to better facilitate his review, and the RKO ruled that nothing in RSA 91-A required the town to compile, cross-reference or assemble information. The RKO concluded that the Town’s response to the Billado document request complied with the statutory provisions of RSA 91-A.
RKO 2023-004 In Re: Town of Milford – 001 (Koko): Katherine Koko's complaint alleged the Town of Milford improperly withheld information regarding an emergency meeting conducted by the Select Board. The RKO narrowed the issue down to whether the Town violated the provisions of RSA 91-A:2 by placing the need for an August 12, 2022, emergency meeting in non-public meeting minutes. During an emergency meeting of the Select Board where less than 24 hours’ notice of the meeting was provided, the Board voted to convene in nonpublic session under the provision of RSA 91-A:3 II (a) Personnel. Koko complained that the reason given for convening the emergency meeting was not stated in the public meeting minutes for August 12, 2022, instead the need for holding the emergency meeting was spelled out in the minutes of the non-public session. Since those nonpublic minutes were voted to be sealed by the Milford Select Board when the board resumed its public meeting, the reason for the emergency meeting was not publicly available. The RKO concluded that the reasons for holding an emergency meeting (of any type) are, in general, matters in which the public has a legitimate interest. The RKO ruled that the minutes of an emergency meeting shall "clearly spell out" the need for the emergency meeting. RSA 91-A: 2, II. The RKO concluded that, under the circumstances of this case, those reasons were not so "spelled out" to the public.
RKO 2023-006 In Re: Town of Deering -001 (Whisman): Trisha Whisman made a request of the select board’s minute taker, Elizabeth Kirby, for a copy of the audio recordings of board meetings held on February 2, 2023 and February 9, 2023. Kirby initially responded by stating the recordings were made on her personal phone and not available to the public. Whisman then made a follow-up request for seven audio recordings of select board meetings. In response to that request the Town Administrator responded the Town has no recordings of any of those meeting dates. Based on evidence provided at a hearing before the RKO, with the exception of the request for the February 9, 2023 minutes, the Whisman's requests for verbatim recordings were all made after the minutes themselves had already been approved. The RKO further found that a recording device and/or notes were fairly consistently used to document selectmen's meetings for the purpose of creating requisite minutes, and that a recording was made of at the February 2 and February 9 meetings. “Regardless of the ownership of the device used to accomplish that, there appears to be no disagreement between the parties as to whether such recordings were made for an official purpose or in furtherance of [the town's] official function.”
Relying on RSA 33-A:3-a, LXXX, since that provision of the Disposition of Municipal Records statute permits the disposal of a tape recording used to create meeting minutes once the minutes are approved, the RKO found no fault on the part of the Town for not providing recordings that had only been disposed of after the corresponding meeting minutes were approved, and before a request for the recording was made. However, the RKO concluded that since the minutes of February 9, 2023 were not approved at the time of the Whisman's request for that recording, that recording should have been made available to the her.
* Dismissed with prejudice means the same claim based on the same facts cannot be brought again.
** Dismissed with prejudice based upon a settlement agreement resolves a claim based upon the agreement of the parties.
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.