Non-Public Sessions Under the Right-to-Know Law: Practical Issues

Cordell A. Johnston, Government Affairs Counsel

Non-public sessions under the Right-to-Know Law are addressed in RSA 91-A:3. Although the law identifies the subjects that may be discussed and establishes a procedure for entering non-public session, it leaves many practical questions unanswered. This article addresses some of the practical issues related to non-public sessions. It is not intended to be a thorough discussion of the legal requirements for non-public sessions.

How and When to Enter Non-Public Session

Understand the difference between a “non-meeting” and a non-public session.

Things that are not meetings—consultation with legal counsel or strategy or negotiations with respect to collective bargaining—are exempt from the Right-to-Know Law and therefore are not subject to any requirements regarding notice, minutes, or anything else.

Non-public sessions—for discussion of matters listed in RSA 91-A:3—are subject to all requirements of the Right-to-Know Law, other than public’s right to attend. A public body may enter non-public session only at a public meeting that has been duly noticed in compliance with the Right-to-Know Law.

Does the public meeting agenda have to indicate that there will be a non-public session?

No. Often it is mentioned in the meeting agenda, but given that an agenda is not even required, there certainly is no requirement that the agenda include reference to a planned non-public session.

Further, sometimes the need for a non-public session is not apparent until a meeting is under way, so it would be impossible to mention it in the agenda.

Follow the script!

Use this template to ensure that your procedure complies with the requirements of 91-A:3.

Motion to enter non-public session must be made and seconded.

Must state specific subparagraph of 91-A:3, II, under which non-public session is authorized.

Motion must be approved by a roll call vote.

When during the meeting should the non-public session take place?

There is no rule, except that the non-public session must begin with a motion made during public session—so a non-public session may not be held before the public meeting is convened. All things being equal, it generally makes sense to hold a non-public session at the end of the meeting, so members of the public do not have to wait for a continuation of the public session. However, conditions may weigh in favor of holding it at the beginning of the meeting—for example, to accommodate the schedule of a non-board member who needs to be present, or because a decision made in non-public session may affect other actions during the meeting, or because the matter is particularly important and needs to be addressed while board members are at their sharpest.

Conduct of the Non-Public Session

There are no special rules for conducting the meeting once it enters non-public session, except that all discussions and decisions must be strictly limited to the purposes set out in the motion to enter non-public session.

Who should be present in the non-public session?

Legally, there is no limit on who may be permitted to attend. The law merely states that the session may be closed to the public. There may be reasons to have people other than board members present—e.g., the town administrator, the recording secretary, or a department head with knowledge of the issue being discussed.

However, for obvious reasons of confidentiality, there should be as few non-board members as possible. Board members are required by law (RSA 42:1-a) to maintain the confidentiality of matters discussed in non-public session if the minutes are sealed or if the information is otherwise confidential, and disclosure of such information constitutes a violation of their oath of office, for which they are subject to removal. Employees and others who are not municipal “officers” are not subject to the same statutory requirement and penalty (although an employee’s disclosure of confidential information may well be cause for dismissal).

In short, it is best to exclude anyone whose presence is not essential. This may mean excusing the town administrator and/or the recording secretary and instead having one of the board members take minutes. Whether to do this is a judgment call to be made by the board.

Minutes

The keeping of minutes and deciding whether and how to seal them are among the thorniest problems involved in non-public sessions.

Keep them simple.

In many cases, the issues around the sealing of minutes can be avoided by keeping very simple minutes that do not contain confidential information. If there is nothing confidential or inflammatory in the minutes, then there probably is no reason to seal them, and a problem is avoided.

The law requires only that the minutes include the names of members present, names of persons appearing before the public body, and “a brief description of the subject matter discussed and final decisions.” Thus, depending on the circumstances, it might be perfectly legitimate for the minutes to simply list the people present and then state:

“The board heard a complaint about a town employee. The town administrator was asked to obtain further information and report to the board.”

OR

“The board received an update on the litigation involving John Doe. No decisions were made.“

In the first case, there probably is no need to include any more information about the complaint. In the second case, no purpose would be served by describing all of the questions that were asked or the strategic discussions about the litigation.

Of course, more detailed minutes will be necessary in some circumstances, and there may be occasions when inclusion of confidential discussions is unavoidable; but think about this, and have a discussion about how much detail should be included before leaving non-public session.

Keep them separate.

This probably is obvious—the non-public session minutes should be a separate document from the public session minutes. The public session minutes should state that the board entered non-public session at a specific time (and include the motion, the basis for the motion, and the roll call vote on the motion), and then indicate that the board returned to public session at a specific time.

Exiting Non-Public Session

Can we make decisions in non-public session, or must we wait and vote in public?

You may make decisions in non-public session. RSA 91-A:3 specifically refers in two places to decisions made during nonpublic sessions. Of course, any decision made presumably will become public in fairly short order, but there are a number of reasons it may not be appropriate to make a decision in public—for example, a decision to terminate an employee, or to make an offer to settle litigation.

Whether to take a vote in non-public session or wait and take it in public is a question for the discretion of the board. If there is a reason to keep the decision confidential for some period, it will be necessary to take the vote before leaving non-public session.

If we are going to vote to seal the minutes, should we do it in non-public or public session?

As of January 1, 2016, that vote must be taken in public session.

Is there any special procedure for returning to public session?

No. The law says nothing about returning to public session. In theory, the board could just say, “We’re back in public session,” and invite the public back into the room (if anyone is still there). However, for the sake of clarity, it is best to have a formal vote to return to public session.

In fact, there is no legal requirement to return to public session at all, so if there is nothing remaining to be done in public (such as voting to seal the minutes), the board in theory could simply end the meeting at the end of the non-public session. Again, however, for the sake of clarity, it is better to return to public session and then adjourn.

Sealing the Minutes

Legally, there actually is no such thing as “sealing the minutes.”

What?

It’s true. The Right-to-Know Law does not use the word “seal,” or anything like it. What is says is that non-public minutes must be made available to the public unless the board determines that certain circumstances apply. If the board makes that determination, the minutes “may be withheld until, in the opinion of a majority of the board, the aforesaid circumstances no longer apply.”

Thus, a vote to “seal the minutes” is merely a vote that the minutes will not be made available upon request until the board decides otherwise. The minutes are not physically sealed (although perhaps they could be). However, “sealing the minutes” is a useful shorthand way of referring to this action, as long as it is understood what is actually being done.

Again, follow the script!

Remember that the only permissible reasons for sealing the minutes are:

Disclosure would adversely affect the reputation of a person other than a member of the board;

Disclosure would render the proposed action ineffective; or

The discussion in the minutes pertains to terrorism.

If none of these conditions exist, the minutes may not be sealed. There is no need to vote not to seal the minutes; in the absence of a vote, the minutes are automatically not sealed, and must be available to the public within 72 hours (not the five business days allowed for minutes of public sessions).

Remember also that the motion to seal the minutes must specifically cite one of the reasons noted above, and requires the affirmative vote of two-thirds of those present. Do not confuse this with the motion to enter non-public session, which must be by roll call but requires only a simple majority.

Does the motion need to state how long the minutes are to be sealed?

No—and in fact, it shouldn’t. Again, the law says they may be withheld from the public “until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.” A vote by the board to seal them for a specific period (or forever) is not conclusive, because the board may decide later that the circumstances justifying confidentiality no longer exist, and they should be made public.

Dealing with Sealed Minutes

Review and revise them as necessary at the next meeting. Consider again whether they really need to be sealed.

You have just voted to seal the minutes—but the minutes don’t even exist yet. The next step, of course, is for the person responsible for preparing the minutes to type them up and keep them in a secure location.

Next, they need to be circulated to the board members for review. The board should review and, if necessary, revise them at the next meeting. Because this will be the board’s first look at the minutes, it will also provide another opportunity to decide whether they really need to be sealed. The board might decide to delete unnecessary confidential material so that the minutes may be made public.

After the board reviews the minutes and makes any necessary revisions, the board members’ drafts should be collected and destroyed.

If we forgot to vote to seal the minutes, can we do it later?

Yes, if they haven’t been released to anyone. The law requires that non-public minutes be “publicly disclosed within 72 hours” unless the board votes to seal them. It says nothing about when the board needs to vote to seal them. Thus, the board certainly can vote anytime within 72 hours to seal the minutes if they have not already been disclosed.

Even after 72 hours, an argument can be made that the minutes may be sealed if they have not actually been provided to anyone, although the law is not clear on this. It is unclear what “publicly disclosed” means, but presumably it is the same as the general requirement that all minutes be “open to public inspection.” If the minutes have been available upon request, but no one has actually requested them, and if they have not been posted in a public place (which is not required), perhaps they can still be sealed. But the board should consult with its legal counsel before taking such an action.

Store them securely.

Sealed minutes, like all other minutes, must be kept permanently. They should be stored in a secure location, preferably a locked drawer or cabinet where only the board and its representative can get access. No one else should have access to the minutes. For example, a board of selectmen or a city council should not have access to sealed planning board or library trustee minutes.

It is recommended to keep all of the board’s sealed minutes together, arranged by date, and clearly marked as minutes that are not available to the public.

Review by new board members? Old board members?

A new person has been elected to the board, and wants to review all of the board’s sealed minutes. Or, a former board member wants to review the sealed minutes from when he was a member. Should this be permitted?

They are the board’s minutes. So long as they remain sealed, they are subject to review only by the board. A new board member has the same rights as other current board members, but if one or more board members want to review the minutes, it is better to make the minutes available to the entire board at a meeting and then return them to their secure location. Alternatively, the board may vote to authorize individual members to review the minutes.

A former board member has no right to see minutes that remain sealed. It does not matter that he was on the board at the time of the non-public session; he is no longer on the board and has no more right than a member of the general public.

Review and unsealing of old minutes.

The law does not impose any obligation on a public body to review and unseal old minutes. It merely states that the minutes “may be withheld until, in the opinion of a majority of members, the circumstances [justifying their sealing] no longer apply.”

Legally, the status of sealed minutes does not become an issue until someone asks to inspect them. If no one has requested a given set of minutes, arguably it does not matter how long they remain “sealed,” because they are not being “withheld.”

However, it is a good practice for a board to review its sealed minutes regularly—probably at least once a year—to determine whether the circumstances that justified their sealing still apply. If the person whose reputation might be adversely affected has died, or if the information has become a matter of public knowledge and is no longer confidential, or if the lawsuit has been concluded, then the board should vote to make the minutes available. Again, this requires a majority vote of the board.

In addition, if someone makes a request to inspect sealed minutes, the response should not be simply, “Sorry, those minutes are sealed.” Unless they are very recent minutes and it is clear that the circumstances have not changed, the board should review the minutes to decide whether the circumstances that justified withholding them in the first place still apply.

Cordell A. Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at governmentaffairs@nhmunicipal.org