The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Non-Public Sessions are an optional provision covered under RSA 91-A:3 which allows a public body to recess from a public session of a meeting and enter into a closed session for a specific purpose. This guidance document will provide practical advice on how and when to enter into non-public session as well as some other important legal considerations.
Q. Is the issue something that can be addressed in a non-public session or is it a non-meeting?
A. There is a distinct difference between a non-public session and a “non-meeting”. A non-public session occurs during the course of a properly noticed public session under RSA 91-A. You still need to take minutes, the public is still allowed to attend the public portion of the meeting, and proper notice must have been provided. This is different than a non-meeting which does not require notice, public access or minutes. So, your first step is to determine if the issue qualifies as a non-meeting. RSA 91-A:2 lists matters which are not meetings. It says as follows:
"Meeting" shall also not include:
(a) Strategy or negotiations with respect to collective bargaining;
(b) Consultation with legal counsel;
(c) A caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2; or
(d) Circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting; provided, that nothing in this subparagraph shall be construed to alter or affect the application of any other section of RSA 91-A to such documents or related communications.
Q. Does the topic qualify for non-public session under RSA 91-A:3?
A. A public board or body may only enter into non-public session if the topic falls under one of the categories listed in RSA 91-A:3, paragraph II. Even if the issue may meet the statutory standard to be eligible for non-public session, the board can still choose to remain in public session. Remember, non-public is the exception, not the rule. In order to enter into non-public session, a specific process must be followed. First, a motion to enter into non-public must be made, citing the specific provision under RSA 91-A:3, II. Next, someone must second that motion. Finally, a majority of the board must approve the motion via a roll call vote. Only then can the board properly enter into non-public session.
Q. Do we need to provide notice to someone that they may be discussed during non-public session?
A. No, this is not currently a statutory requirement. Public boards and bodies do not need to notify someone that they will be discussed during non-public session. However, it is important to remember that if the board is entering into non-public under RSA 91-A:3, II(a), The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, the employee may have a right to a public hearing. If that is the case you will want to notify the affected employee to see if the wish to have a public hearing.
Q. Can the board ask for additional details before deciding if they wish to enter into non-public session?
A. Yes. Remember, the board gets to choose if they wish to enter non-public session and they should only enter non-public if it meets the statutory requirements. Therefore, it may be necessary for someone to provide more detail in their motion to enter non-public in order for the board to make a decision.
Q. Can the board vote and make decisions in non-public session?
A. Yes, non-public session is treated much the same as public session. The board may vote on issues, make decisions, and hear information from relevant individuals. The only difference is that all votes must be done by roll call. Also, it is important to keep in mind that only those whose presence is absolutely necessary should be allowed to attend non-public session.
Q. What about meeting minutes?
A. Minutes must be kept during non-public session. However, just because the minutes are from non-public session does not mean that they are sealed by default. That is a separate decision that must be made.
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 a very brief overview of what was discussed.
Of course, more detailed minutes will be necessary in some circumstances, and there may be occasions when inclusion of confidential discussions is unavoidable.
Q. What are the rules for sealing non-public meeting minutes?
A. The law doesn’t actually say that non-public meeting minutes can be sealed, and so it is somewhat improper to say that you have sealed the minutes. Instead, the law allows minutes to be withheld for very specific reasons. Let’s look at what the statute specifically says:
“Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of two-thirds of the members present taken in public session, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.”
Therefore, if the content of the minutes does not meet one of those very specific requirements, the minutes should be released to the public. If the minutes do meet the standard, and 2/3 of the board members vote to withhold them, they can only be withheld for as long as necessary. This means that your board needs to keep track of these withheld minutes and needs to have a process for reviewing withheld minutes periodically to see if they can be released. There is no such thing as “sealing minutes indefinitely”.
Finally, RSA 91-A:3 was recently amended to require that municipalities keep a running list of all withheld minutes the list must identify the public body and include the date and time of the meeting in nonpublic session, the specific exemption under paragraph II on its face which is relied upon as foundation for the nonpublic session, the date of the decision to withhold the minutes or decisions from public disclosure, and the date of any subsequent decision, if any, to make the minutes or decisions available for public disclosure.