What is the Right to Know law and what does it mean to you?

Partial Article Submission;

Anonymous said...

Mx. Moderator please create at topic to review the root of RTK.
The NH Constitution provides this root foundation:

[Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

Art. 8 provides the “jumping off point” and all Statutory law and court law must follow the constitution.

This is a current and ongoing topic and will likely have contemporary import.

NH's Right to Know law, RSA91-A, is so ingrained and important to the people in our state, that NH, has more RTK case law per capita than any other state in the union. It is so important that the Attorney General's office has an entire section dedicated to this set of laws. And she has published a legal memorandum on her site for all to see.

According to the Attorney General;

1.) Who is subject to the RTK law?

The Right-to-Know Law applies to all boards, commissions, agencies, or authorities, committees, subcommittees, subordinate bodies or advisory committees of all political subdivisions of the State, including, but not limited to counties, towns, municipal corporations, village districts, school districts, school administrative units, and charter schools. RSA 91-A:l-a, I(d); see Selkowe v. Bean, 109 N.H. 247 (1968) (pertaining to meetings of the Keene Municipal Finance Committee).

2.) WHEN DOES A PUBLIC BODY HOLD A MEETING?

1. A public body holds a meeting under the Right-to-Know Law when two criteria are met:

a. A quorum of the membership of the public body is convened; and

b. The purpose of the meeting is to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power. RSA 91-A:2. See Herron v. Northwood, 111 N.H. 324, 326-27, 282 (1971) (town budget committee's function of preparing and submitting a budget is subject to public Right-to-Know Law and must be held in a manner open to the public).

The attendance by a quorum of a municipal board of selectmen or planning board at public informational meetings of the Department of Transportation for the purpose of advising the Department concerning a highway project can constitute a "meeting" under RSA 91-A:2, I requiring appropriate notice. Attorney General's Opinion 93-01.

A majority of agency members constitutes a quorum absent some other controlling law. See RSA 21:15 (authorizing a majority of agency members to take agency action).

3.) Notice of Meetings;

NOTICE - RSA 91-A:2

Assuming the governmental body is subject to the Right-to-Know Law and intends to convene a meeting within the meaning of the Right-to-Know Law, notice must be given as follows:

1. REGULAR NOTICE

a. Either of the two following forms of notice is proper under the Right-to-Know Law:

(1) Notice of the time and place of any meeting (including non-public sessions) shall be posted in two appropriate places 24 hours prior to the meeting, excluding Sundays and legal holidays. RSA 91-A:2, II. Notices should be posted where people are likely to see them, such as on the government body's website, the location where the checklist or town warrant is posted, or the agency's office lobby or front door and the State House or Town Hall bulletin board; or

(2) Notice of the time and place of the meeting shall be printed in a newspaper of general circulation in the city or town at least 24 hours prior to the meeting, excluding Sundays and legal holidays

b. If the body decides to go into non-public session during an open meeting, the notice for the open meeting will suffice. If both public and non-public sessions are planned in advance, the notice should so state and generally identify the topics to be addressed in each session, including a brief outline of the agenda for each session.

4.) Recording meetings;

Any person may record, film, or videotape an open meeting. See WMUR v. N.H. Dept. of Fish and Game, No 2005-787, slip. op. (N.H. August 3, 2006) (prohibiting television cameras at hearing on issuance of a hunting and fishing license because the presence of cameras would impair the applicants ability to present his case violated the Right-to-Know Law where the applicant had not established that he had a due process right to a hearing without cameras present). 2

d. Minutes must be recorded and must include:

(1) The names of the members present

(2) The names of persons appearing before the body

(3) A brief description of each subject discussed

(4) A description of all final decisions made, including all decisions to meet in non-public session. "Final decisions" include actions on all motions made, even if the motion fails. A clear description of the motion, the person making the motion and the person seconding the motion should also be included

5.)Non public meetings;

Unless a specific statute authorizes a body to deliberate in non-public session on a particular question, public bodies must deliberate in public. 7

c. The reason for going into non-public sessions should be articulated with a specific reference to an appropriate section in RSA 91-A:3, II. If the body is relying on other law, a reference to that law should be included in the minutes. See generally Cioffi v. Sanbornton, No. 2001-E-022, Belknap County Superior Court (2001).

d. A public body may take final action in a non-public session on matters which may properly be considered in non-public sessions.

e. Minutes of non-public sessions:

(1) The decision to hold a non-public session must be included in the minutes of the open meeting

(2) Minutes of non-public sessions are required. These minutes (including any decisions reached by the body) must be disclosed within 72 hours

6.) WHAT IS A PUBLIC RECORD?

Every citizen during the regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies, and to make memoranda, abstracts, and photographic or photostatic copies of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5. RSA 91-A:4, I.

Case law indicates that the term "public record" refers to specific pre-existing files, documents or data in an agency's files, and not to information which might be gathered or compiled from numerous sources. Brent v. Paquette, 132 N.H. 415, 426 (1989). Documents or data which are covered by statutory or common law privileges or exclusions are excluded from the definition of "public records." See RSA 91-A:4, I (referring to statutory exclusions). Some, but not all, of these privileged and excluded records are included among the exemptions specified in RSA 91-A:5, e.g., medical treatment records. If you question whether a document is a public record, you should consult your legal counsel. 8

B. RECORDS REQUIRED TO BE DISCLOSED

1. Individual salaries and employment contracts of local school teachers. Mans v. Lebanon School Board, 112 N.H. 160 (1972).

2. Names and addresses of substitute teachers hired during a strike. Timberlane Regional Education Assn. v. Crompton, 114 N.H. 315 (1974).

3. Certain law enforcement investigative records. Lodge v. Knowlton, 118 N.H. 574 (1978). (This is discussed in more detail below.)

4. A computerized tape of field record cards concerning property tax information. Menge v. City of Manchester, 113 N.H. 533 (1973).

5. State agency budget requests and income estimates submitted pursuant to RSA 9:4, 5 to the Commissioner of Administrative Services. Chambers v. Gregg, 135 N.H. 478 (1992).

6. Records of any payment in addition to regular salary and accrued vacation, sick, and other leave, made to an employee of any public agency or body listed in RSA 91-A:1a, I-IV, or to an employee's agent or designee, upon the employee's resignation, discharge, or retirement. RSA 91-A:4, I-a.


C. ACCESS TO INFORMATION STORED IN COMPUTERS

Public documents stored in computers shall be available in the same manner as records stored in public files if access to such records would not reveal work papers,9 personnel data or other confidential information. RSA 91-A:4, V. The New Hampshire Supreme Court has held that a record does not lose its status as public because it is stored in a computer system. Hawkins v. N.H. DHHS, 147 N.H. 376 (2001). The Right-To-Know Law does not require an agency to compile data in the format requested by a member of the public or to create a new document. In dicta, the Court states that RSA 91-A does require that public records be maintained in a manner that makes them available to the public. Hawkins, 147 N.H. at 379.

D. SETTLEMENTS OF LAWSUITS

Every agreement to settle a lawsuit against a governmental unit, threatened lawsuit, or other claim entered into by any political subdivision or its insurer, shall be kept on file at the municipal clerk's office and made available for public inspection for a period of no less than 10 years. RSA 91-A:4, VI.

Production of Law Enforcement investigative files;

LAW ENFORCEMENT INVESTIGATIVE FILES

Relevant portions of the Federal Freedom of Information Act, 5 U.S.C. § 552(b)(7), have been adopted as the standard for the disclosure or non-disclosure of law enforcement investigative records. Lodge v. Knowlton, 118 N.H. 574 (1978).

If the records requested are (1) investigative records and (2) compiled for law enforcement purposes, they may be withheld if the law enforcement agency can prove that disclosure would either:

a. Interfere with enforcement proceedings; or

b. Deprive a person of a right to a fair trial or an impartial adjudication; or

c. Constitute an unwarranted invasion of privacy13 (NOTE: The statutory exemption for invasion of privacy will be strictly construed. Mans v. Lebanon School Board, 112 N.H. 160 (1972)); or

d. Reveal the identity of a confidential source, and in the case of a record compiled by a law enforcement authority in the course of a criminal investigation or by any agency conducting a lawful national security investigation, confidential information furnished only by a confidential source; or

e. Reveal investigative techniques and procedures; or

f. Endanger the life or physical safety of law enforcement personnel.

The burden of proof is on the law enforcement agency to show that the record is exempt. It is not the responsibility of the person requesting the record to show that no exemption applies.14 If a law enforcement entity denies a request for investigative files, the response to the request should include an explanation of the basis for non-disclosure. In Hopwood v. Pickett, 145 N.H. 207 (2000), the court held that investigatory records may only be withheld if the State objects to their release. 15


4. GUIDANCE IN PRODUCING LAW ENFORCEMENT INVESTIGATIVE RECORDS

Requests for the production of investigative records should be considered in light of all the relevant facts and circumstances. There is no test to apply in every instance to determine which documents may be withheld and which must be disclosed. However, in order to provide law enforcement with some assistance in resolving such requests, additional guidance follows:

a. Interference With Law Enforcement Proceedings

The proceedings do not have to be pending, but there should be a reasonable likelihood of adjudicatory proceedings at some point in the future. This would include an unresolved crime where some effort continues to be expended to solve it.

This exemption would not justify, for instance, withholding investigative records concerning an unquestioned suicide, although other exceptions might apply; for example, the report may include facts whose disclosure would constitute an invasion of privacy.


b. Accused's Right To Fair Trial

This exemption probably would apply in all pretrial situations. Information which might prejudice an accused's right to a fair trial includes records relating to the following:

(1) The guilt or innocence of a defendant

(2) The character or reputation of a suspect

(3) Examinations or tests which the defendant may have taken or have refused to take

(4) Gratuitous references to a defendant; for example, reference to the defendant as "a dope peddler"

(5) The existence of a confession, admission or statement by an accused person, or the absence of such

(6) The possibility of a plea of guilty to the offense charged or a lesser offense

(7) The identity, credibility or testimony of prospective witnesses

(8) Any information of a purely speculative nature

(9) Any opinion as to the merits of the case or the evidence in the case


c. Unwarranted Invasion of Privacy

In determining whether disclosure of documents will constitute an unwarranted invasion of privacy, the court will balance the public and/or private interest in the information sought against the severity of the invasion of privacy. If the public body asserts this exemption in good faith, the individual requesting the information will have to provide a reason or need for the information, contrary to most Right-to-Know Law situations. Although the federal courts are in some disagreement, there is substantial authority to support the nondisclosure of the types of information listed below on the grounds that their disclosure constitutes an unwarranted invasion of privacy, which is another way of saying an invasion of privacy without justification or adequate reason. Remember that these are not blanket exceptions. The facts and circumstances of each situation must be carefully examined to determine whether the privacy exception will apply. Information regarding the following matters may be exempt under this section:

(1) Marital status 16

(2) Legitimacy of children

(3) Medical conditions

(4) Welfare payments

(5) Alcohol consumption

(6) Family fights

(7) Names of witnesses who cooperated by providing information to authorities and the information provided by them 17

(8) Names of subjects of investigation


d. Confidential Source

This relates to the informant situation and will probably cover express or implied assurances of confidentiality.

e. Investigative Techniques And Procedures

This exclusion should not be interpreted to include routine techniques and procedures already well known to the public, but should cover techniques and procedures not commonly known.

f. Endangering Life Or Physical Safety Of Law Enforcement Personnel

This exclusion has not been widely construed, but appears to be fairly straightforward.

Any investigative record, whether open, closed, active, or inactive may fall within the exemptions. For instance, the disclosure of an open or active file could interfere with enforcement proceedings in many ways: apprehending a suspect, disclosing trial strategy, etc. Disclosure of a closed file would not be likely to interfere with enforcement proceedings but might constitute an unwarranted invasion of privacy or make public the name of a confidential informant. If only a portion of the record is exempt, the remaining portion must be disclosed if it is reasonably segregable from the non-exempt portions.

Many of the exemptions for law enforcement investigative records have yet to be interpreted by the New Hampshire courts. The above guidance is based on federal case law, which a New Hampshire court may reject. Nevertheless, the needs, demands, and results of good law enforcement are complex and long lasting, and the federal case law will not be lightly disregarded. It is important, therefore, that these exemptions be applied thoughtfully and carefully. The mere assertion of an exclusion without adequate reason or justification will not be sufficient to sustain a law enforcement agency's denial of a request for information under the Right-to-Know Law.


In a 2006 decision, the Supreme Court clarified the law enforcement investigative records exception (A), interference with law enforcement proceedings. Murray v. New Hampshire Division of State Police, No 2006-113, Slip Op. (N.H. Dec. 20, 2006). To justify the withholding of records, an agency should categorize for the court the investigatory records and each category must be defined precisely. The description should not reveal the contents of withheld documents, but should provide enough information to allow a court to determine if the documents must be disclosed.

Affidavits, testimony, or other evidence should be provided to the court that explains how the disclosure of the information within the categories could interfere with any investigation or enforcement. The law enforcement agency may also be required to explain why there is no reasonably segregable portion of the withheld materials within the category that is suitable for release. Murray v. New Hampshire Division of State Police, No 2006-113, Slip Op. (N.H. Dec. 20, 2006).

F. BURDEN OF PROOF

In all cases, the public body bears the burden of proving that a record is not subject to public release.

Comment are welcome.