RIGHT-TO-KNOW UPDATE: RECENT DECISIONS FROM THE NEW HAMPSHIRE SUPREME AND SUPERIOR COURTS

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1 RIGHT-TO-KNOW UPDATE: RECENT DECISIONS FROM THE NEW HAMPSHIRE SUPREME AND SUPERIOR COURTS Sarah S. Murdough, Esquire Sulloway & Hollis, P.L.L.C. 9 Capitol Street, PO Box 2756 Concord, NH / smurdough@sulloway.com New Hampshire s Right-to-Know law is found at RSA ch. 91-A. As underscored by the preamble to the statute: Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. While these materials do not detail the intricacies of the Right-to-Know statute, in essence, Right-to-Know governs two broad categories of public business: meetings and records. Each category exempts certain proceedings or records from the openness requirement. The statute sets forth required procedures for conducting public meetings and for responding to requests for records and allows remedies for Right-to-Know violations. The purpose of these materials is to review how several recent Court decisions may impact procedures for public meetings and a school district s response to public record requests. This material covers the issues (some recurring) raised by decisions from the New Hampshire Supreme Court in the last five years and decisions from the Superior Court in the last year that give insight to your obligations under Right-to- Know. 1 1 The Attorney General s Memorandum on New Hampshire s Right-to-Know Law, RSA Chapter 91-A, provides guidance to local officials regarding how to comply with RSA ch. 91-A. The memorandum can be found at The Superior Courts often cite the Attorney General s Memorandum in its decisions.

2 I. Recent/Recurring Issues A. What is a Non-Meeting and How Can I Attend One? A public body holds a meeting when: (1) a quorum of the members of the public body convenes so that the members may communicate with each other contemporaneously; and (2) the purpose of the meeting is to discuss or act upon matters over which the public body has supervision, control, jurisdiction, or advisory power. As stated in RSA 91-A:2, a meeting does not include four enumerated circumstances: (a) strategy or negotiations with respect to collective bargaining; (b) consultation with legal counsel; (c) partisan caucus (i.e. New Hampshire Senate Democratic Caucus; New Hampshire House Minority Caucus); or (d) circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting. In addition, "[a] chance, social, or other encounter not convened for the purpose of discussing or acting upon [the public body s official business] shall not constitute a meeting if no decisions are made regarding such matters. Recent decisions from the New Hampshire Supreme Court and New Hampshire Superior Court have addressed non-meetings to consult with legal counsel and issues surrounding communications with less than a quorum of the Board. 1. Non-Meetings to Consult with Legal Counsel In Professional Firefighters of N.H. ( PFFNH ) v. N.H. Local Government Center ( LGC), 163 N.H. 613 (2012), the court concluded that a board s communications with counsel were confidential even though the communications were technically made during the course of an open meeting where no third persons were present at the meeting. Minutes of those discussions with counsel were not subject to Right-to-Know. However, in Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (2011), the court concluded that a board may not enter into a private session to discuss written communications from board s counsel. To be a consultation with counsel, and thus a non-meeting, there must, at a minimum, be the ability to have a contemporaneous exchange of words and ideas between the public body and the attorney. Bottom Line: If, during a public meeting, the Board wishes to enter into a nonmeeting to consult with counsel, adjourn the public meeting to consult with counsel, and 2

3 then reconvene after consultation. If you anticipate questions for counsel regarding a legal opinion, have counsel available for consultation. 2. What is a Public Body and When does it Meet? It is clear that chance meetings between a quorum of the Board, where no official business is discussed nor decisions made, is not a meeting under Right-to-Know. A more difficult question arises when less than a quorum of the Board meet outside of a public meeting. The Attorney General s Memorandum implies that a meeting with less than a quorum of members, if planned or intended for the purpose of discussing matters relating to official business and during which decisions are made, circumvents the spirit of Right-to-Know and may be deemed improper under Right-to-Know. Recent decisions from the New Hampshire Superior Court in David K. Taylor v. The Oyster River Cooperative School Board, Case No.: CV (January 19, 2012) and David K. Taylor v. The Oyster River Cooperative School Board, Case No CV (February 23, 2012) cite to that memorandum in situations where, arguably, there were meetings of less than a quorum of the public body but the court nevertheless found a violation of Right-to-Know. It is difficult to reconcile a general statement that meetings of less than a quorum can violate Right-to-Know with the plain language of the statute. Certainly meetings of less than a quorum of the Board that result in decisions that bind the Board violate the spirit of Right-to-Know, but where there is less than a quorum, can any decision truly be made? Note, however, that meetings between less than a quorum of a Board may be construed to be a meeting of a subcommittee of the Board. Subcommittees are public bodies subject to Right-to-Know. In brief, just as the Oyster River cases presented their own unique facts, each situation must be analyzed separately to determine whether a meeting is contemplated within the purview of Right-to-Know.. Note also that even if an improperly held meeting would fall within an exemption to the open meeting requirements of Right-to-Know and thus could be held in a nonpublic session, where such a meeting is conducted without the formalities of notice, entry into non-public session, and maintenance of the minutes of the non-public session, such a meeting violates Right-to-Know. When entering non-public session, a motion should be made reciting the specific exemption relied upon in RSA 91-A:3, II. If entering into 3

4 non-public session for one exemption, discussing matters beyond the scope of that exemption is not permitted. B. Attorney Fees In Hampton Police Ass n v. Town of Hampton, No (April 28, 2011), the New Hampshire Supreme Court helped define the scope of a public employer s duty to respond to a request for attorney invoices. The Court held that the Superior Court erred in requiring outside counsel to prepare a revised invoice, reaffirming its prior holdings that public officials do not need to create a new document in response to a Right-to-Know request. Here, thirty-five of the entries in outside counsel s invoices represented time spent on multiple cases, so the Town could not provide the Hampton Police Association with figures showing the amount of time counsel spent or the amount of money the Town spent on the dispute in issue. The Right-to-Know Law did not require the Town to create a new document that attempted to provide that information. However, the New Hampshire Supreme Court disagreed with the Town s assertion that descriptive billing entries are per se privileged from disclosure. The Court noted that the privilege would not apply to billing statements that merely provide general descriptions and do not reveal the subject of confidential communications with any specificity. Rather, the Court held that the privilege may apply to information that reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided such as researching particular areas of law. Because the Town failed to meet its burden of specifically identifying the billing narratives it claimed were privileged, the Court upheld the Superior Court s rejection of the Town s assertion of a wide-reaching blanket privilege over billing entries. Bottom Line: While public employers do not need to create revised billing documents to segregate out work done on a specific matter, attorney invoices that show the amount of money paid to attorneys by a public entity are subject to disclosure under the Right-to-Know Law. Public employers should carefully review any invoices to be provided in response to a Right-to-Know request to avoid potential disclosures of privileged information. Public employers should also consult with counsel regarding how they wish their attorneys to reflect the nature of the work performed in their billing statements. 4

5 C. Responses to Right-to-Know Requests Right-to-Know requires a school district to make available any governmental record reasonably described when such record is immediately available or, if not immediately available, within five business days, either (a) make such record available; (b) deny the request in writing with reasons; or (c) furnish written acknowledgment of the receipt of the request and the statement of the time reasonably necessary to determine whether the request should be granted or denied. RSA 91-A:4, IV. In ATV Watch v. New Hampshire Department of Transportation, 161 N.H. 746 (2011), the New Hampshire Supreme Court addressed several issues related to the procedures for responding to Right-to-Know requests. First, the question often arises as to the scope of effort a public body must take to respond to a request. Preliminarily, it must be remembered that the request must reasonably describe the records requested. Once the nature of the request is ascertained, as made clear by ATV Watch, the standard to be applied to a public agency s search for documents is one of reasonableness, that is whether the search was reasonably calculated to discover the requested documents. The agency can meet its burden of showing a reasonable search by producing detailed affidavits as to the scope of the search. The agency should have witnesses available prepared to testify as to the scope of that search. In ATV Watch, the petitioner did not produce sufficient information to challenge the adequacy of the DOT s search. Second, ATV Watch also held that a public agency does not need to provide a Vaughn Index which details each document withheld and the reasons therefore, unless ordered to do so by a court. The initial denial of a request simply needs to inform the individual of the decision to withhold documents along with the underlying reasons. Of course creating an index of documents produced/withheld, as a matter of course, is important support for the agency s decisions with respect to documents; however, the index itself need not be provided to the individual requesting the documents at the time of that initial request. One issue not addressed by ATV Watch is whether a public agency can argue that a particular Right-to-Know request is unreasonably burdensome and/or attempt to shift cost of retrieving information to the petitioner. As noted above, it is important, initially, 5

6 to clarify in any Right-to-Know request precisely what records are being requested. Often, clarification of the request can avoid unnecessary retrieval costs. Bottom Line: Districts should have a mechanism in place to immediately bring Right-to-Know requests to the attention of the appropriate individual in order to meet the procedural requirements for a response. In many instances, a record may not be immediately available and/or a decision as to whether a particular record is, in fact, a governmental record or whether an exemption applies, requires additional time to respond. A District may have additional time to respond to a request where such is reasonably required; however, the District must acknowledgeable the request within five business days and designate a reasonable time after which an answer can be provided. Particularly with extensive record requests, the District should maintain an index of records produced/redacted/withheld. D. Exemptions to Governmental Records Requests Just as there are exemptions to public meeting requirements, several exemptions apply to records request under Right-to-Know. These exemptions are set forth in RSA 91-A:5, and, as noted below, may also be contained in other state statutes. Of course, before analyzing whether an exemption applies, a school district must first determine whether a particular request is for a governmental record. As noted above, a school district is not required to create a record in response to a request. Also, the record must be in furtherance of the official function of the school district to be considered a governmental record. Once a determination is made that the request is for a governmental record, a school district must determine whether one of the several exemptions set forth in RSA 91-A:5 applies. New Hampshire courts have recently addressed two of those exemptions: records pertaining to internal personnel practices and the invasion of privacy exemption. 1. What is the internal personnel practices exemption? In Union Leader Corp. v. Wilton-Lyndeborough Cooperative School Dist., No. 12-C-450 (Hillsborough County (Northern District) May 30, 2012), the Hillsborough County Superior Court upheld the District s decision to withhold an investigation report prepared by an outside attorney into possible misuse of District funds because the report 6

7 was a record pertaining to internal personnel practices, which is a categorically exempt under Right-to-Know. Several New Hampshire Supreme Court decisions have also upheld the protection of documents under this exemption in the context of investigations of employee misconduct or discipline. How far that exemption extends into other personnel practices remains unclear. In Montenegro v. City of Dover, 163 N.H. 641 (2011), the court evaluated the internal personnel practice exemption outside the context of employee misconduct or discipline and held that job titles of those who monitored the City of Dover surveillance equipment did not constitute an internal personnel practice under Right-to-Know. In so holding, the court noted that job titles, alone, are not related to internal personnel discipline, as they were not similar to such matters as hiring and firing, work rules and discipline, which would be within the contemplation of that exemption. Accordingly, records pertaining to the hiring and firing of personnel, work rules and discipline would, by implication, fall within this exemption. 2. Is there a privacy exemption? In addition to categorically exempt internal personnel practices, Right-to-Know also exempts from public disclosure records pertaining to personnel, medical, welfare... and other files whose disclosure would constitute invasion of privacy. Withholding records under this exemption, however, requires balancing the privacy interest involved with the public interest in disclosure. Recent decisions from the New Hampshire Supreme and Superior Court have all found the public interest outweighed the privacy interest involved. See Union Leader Corp. v. New Hampshire Retirement System, 162 N.H. 673 (2011) (names of retirees from public employment and amount of benefit); Professional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699 (2010) (names and salary of LGC employees); Lambert v. Belknap County Convention, 157 N.H. 375 (2008) (applications, letters of recommendation, and score sheets for candidates for Sheriff); Conway Daily Sun v. Conway School District, No CV (January 30, 2012) (correspondence regarding board member, but redacting some information). 7

8 3. Exemptions under other statutes Finally, in addition to the exemptions to public disclosure in the Right-to-Know law, there may be judicially created exemptions or other statutory exemptions that apply. For example, in 38 Endicott Street North, LLC v. State Fire Marshall, 44 A.3d 571 (NH 2012), the New Hampshire Supreme Court noted that while the statute didn t explicitly address the treatment of a request for law enforcement records or information, the records requested were nevertheless exempt under the court s recognition of an exemption taken from the Federal Freedom of Information Act. Similarly, in Premium Research Services v. New Hampshire Department of Labor, 162 N.H. 741 (2011), the court denied a request for information regarding the State s second injury fund as the workers compensation statutes specifically exempted proceedings and records of the state Department of Labor with respect to workers compensation claims. Bottom Line: When analyzing record requests, first determine whether the record requested is in furtherance of the official function of the District. If the request is, indeed, for governmental record, consider each of the potentially applicable exemptions in RSA 91-A:5, recognizing that a court will balance the public and private interest involved before finding some of the exemptions apply. E. Remedies Under Right-to-Know In general, remedies under Right-to-Know include invalidation of an action of a public body or agency; an order enjoining future violations; and/or an award of attorney s fees/costs against the public body, agency, individual or complainant, as the case may be. The New Hampshire Legislature amended the remedies for a violation of Right-to-Know, effective January 1, (See HB 1223.) Currently, an individual shall be awarded attorney s fees and costs if the court finds that a lawsuit was necessary in order to make the information available or the proceeding open to the public. As of January 1, 2013, attorney s fees and costs, shall be awarded if the court finds that such lawsuit was necessary in order to enforce compliance with the provisions of [the Right-to-Know] statute or to address a purposeful violation of the statute. It is unlikely this slight change in statutory language will impact awards of fees. Just as before, to award fees the court must find that the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of the statute. 8

9 Two changes to the statute give the Court authority to order additional remedies. First, the more significant change allows a court to impose a civil penalty of not less than $250 and not more than $2000 upon an officer, employee, or other official of a public body or public agency who violates Right-to-Know in bad faith. Any such penalty shall be deposited in the general fund (if a state employee or official) or other political subdivision, as the case may be. Such a person may also be required to reimburse the public body or agency for any award of attorney s fees or costs. Second, a court may require individuals to undergo remedial training at his/her own expense. II. Case Summaries A. Recent New Hampshire Supreme Court Decisions 38 Endicott Street North, LLC v. State Fire Marshal, 44 A.3d 571 (N.H. 2012). A property owner filed a petition seeking an injunction directing the Fire Marshal to produce undisclosed materials regarding all records, information, and documents related to a property fire. The court affirmed the Superior Court s holding that disclosure was exempted as records or information compiled for law enforcement purposes under exemption 7 of the federal Freedom of Information Act, which the court adopted in Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006). Professional Firefighters of N.H. ( PFFNH ) v. N.H. Local Government Center ( LGC), 163 N.H. 613 (2012). The court affirmed an order of the trial court that ruled the LGC was not required to provide certain meeting minutes under RSA 91-A. PFFNH argued that the trial court erred in concluding that the attorney-client privilege survives when the minutes sought memorialize a discussion between a government body and its counsel during the course of a meeting that was required to be open to the public under RSA 91-A:2. The court agreed with the LGC that disclosure was not required under a straightforward application of settled attorney-client privilege principles which constituted confidential information under RSA 91-A:5, IV. Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (2011). The Town of Madison Planning Board went into a private session to read and discuss s from the Board s attorney, a memo summarizing legal advice relayed over the phone from the Board s attorney to the administrative assistant, and letters from the plaintiff s attorney. The plaintiff argued that the private session violated RSA 91-A. The Board argued its members were permitted to read a letter from counsel and discuss its contents in a private session under the consultation with legal counsel exclusion from the definition of a meeting in RSA 91-A:2, I(b). The court found that the Board violated RSA 91-A by entering into a private session because what was discussed in that 9

10 session did not constitute a consultation with legal counsel. The definition of consultation did not also encompass the discussion and/or consideration of a counsel s legal advice. Premium Research Services v. N.H. Dep t of Labor, 162 N.H. 741 (2011). Premium Research Services petitioned the Dept. of Labor for information regarding the state s second injury fund, created to encourage employers to hire or retain employees with permanent physical or mental impairments by reducing the employer s liability for workers compensation claims. The court affirmed the lower court and denied their request per RSA 281-A:21-b, which exempts from the RSA 91-A proceedings and records of the [DOL] with respect to workers compensation claims. Union Leader Corporation ( UL ) v. N.H. Retirement System, 162 N.H. 673 (2011). The UL petitioned under the Right-to-Know law for access to names of retired public employees who received payments from public employee retirement plan and amounts of those payments. While holding that RSA 91-A:4-I-a, which requires making public payments to employees upon their resignation, discharge or retirement, did not apply, the court found that the privacy exemption of the Right-to-Know law did not apply because the interest to the public outweighed any privacy interests. Montenegro v. City of Dover, 162 N.H. 641 (2011). Citizen brought action seeking disclosure of (1) the precise locations of the City s surveillance equipment, (2) the recording capabilities for each piece of equipment, (3) the specific time periods each piece of equipment is operational, (4) the retention time for any recordings, and (5) the job titles of those who monitor the recordings. The court held that numbers (1)-(4) were exempt from disclosure as records or information compiled for law enforcement purposes under Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006). However, the job titles of those who monitor the city s surveillance equipment, were not exempt under RSA 91-A:5, IV as an internal personnel practice. Hampton Police Association v. Town of Hampton, 162 N.H. 7, (2011). The New Hampshire Supreme Court held that the trial court erred when it ordered the Town to compile information into a form in which it is not already kept per RSA 91- A:4, but affirmed the trial court s order that the Town photocopy 34 entries of it s counsel s narrative descriptions of the work it performed. The Town asserted these billing statements fell under the scope of attorney-client privilege and thus were confidential within the meaning of RSA 91-A:5, IV. The court held that the town had a burden to prove, with specificity, which billing statements revealed the subject of confidential communications and were not simply general descriptions of the nature of the services performed. ATV Watch v. N.H. Dep t of Transportation, 161 N.H. 746 (2011). 10

11 Petitioners had filed request with the DOT for all records, including s, relating to use of all-terrain vehicles on former railroad corridors converted to rail trails. On appeal, the petitioners first sought a ruling that the DOT unlawfully limited the scope of its search. The court adopted the standard of reasonableness to review the adequacy of an agency s search for documents and held that the Petitioner s failed to provide sufficient evidence to raise substantial doubt concerning the adequacy of the DOT s search. The court also held that: (1) the DOT was not required to provide petitioners with a detailed Vaughn index of each document or record that was exempt from disclosure with an explanation for each exemption; (2) the DOT was not obligated to disclose preliminary drafts of letters sent to other agencies; and (3) handwritten, personal notes in margins of letters were not subject to disclosure. Professional Firefighters of N.H. ( PFFNH ) v. Local Government Center, Inc. ( LGC ), 159 N.H. 699 (2010). The court held that two subsidiaries of the LGC (the New Hampshire Municipal Association and LGC Real Estate) were subject to RSA 91-A because: (1) they were directly managed by, owned by, and operated for the sole benefit of the governmental entity LGC whose members consisted solely of political subdivisions managed by municipal, school, and county officials; and (2) enjoyed tax exempt status as public or governmental entities. The court also ruled that the LGC must disclose the specific names and salary information of its employees because they had no greater privacy interest regarding their individual salary information than traditional public employees, similar to public school teachers in Mans v. Lebanon School Board, 112 N.H. 160 (1972). Lambert v. Belknap County Convention, 157 N.H. 375 (2008). Petitioners submitted a written request to review the applications, all letters of recommendation, and all score sheets (documents) regarding the election of a Sheriff at the Belknap County Convention. The Convention argued that disclosure of this information is exempted as other files whose disclosure would constitute invasion of privacy outlined in RSA 91-A:5, IV. The court found the trial court unsustainably exercised its discretion by denying the petitioners access to these documents. It reasoned that the public interest in disclosure significantly outweighed the privacy interest because a candidate for public office voluntarily has a diminished privacy expectation in personal information relevant to that office and the public has a great interest in the opportunity to evaluate the candidates and determine which they believe is best qualified to perform the duties of the office. B. Recent Superior Court Decisions Union Leader Corp. v. Wilton-Lyndeborough Cooperative Sch. Dist., No. 12-C-450 (Hillsborough County (Northern District) May 30, 2012). The court held that an investigation by an outside attorney into possible misuse of district funds was categorically exempt as a record pertaining to internal personnel practices. However, meeting minutes and other related documents which contained private information already released to the public, were not exempt under the balancing 11

12 test used for exemptions to disclosure under the invasion of privacy exemption, subject to certain redactions. David K. Taylor v. The Oyster River Cooperative School Board, No cv (Feb. 23, 2012). The court held that the Board deliberated and decided on the method to select superintendent search committee members outside of a posted meeting. The Board followed a process for nominating community members to serve on the screening committee suggested by the interim Superintendent in an whereby board members reduced the pool of candidates by voting anonymously for a candidate outside of a meeting and then, at an open meeting, drew two names randomly from those anonymous nominations. The court also noted that a board violates Right-to-Know when entering non-public session for a permissible purpose under the statute, but then discussing matters beyond the scope of that purpose. Conway Daily Sun v. Conway School District, No.: CV (Jan. 27, 2012). Petitioners requested copies of any correspondence, including s, received by the Conway School District addressing any inappropriate behavior by a board member. The District denied the request, stating the correspondence was: files whose disclosure would constitute an invasion of privacy per RSA 91-A:5, IV. The court conducted an in camera review of the documents and ordered the majority be disclosed, and disclosure of certain documents with redactions of people s names and facts of identification. David K. Taylor v. The Oyster River Cooperative School Board. No.: CV (Jan. 19, 2012). The court held that Oyster River Cooperative School Board and its subcommittees violated several meeting procedural requirements of 91-A in its search for an interim superintendent, including: (1) failing to record minutes for certain meetings, (2) properly recording votes to enter non-public section, (3) listing the attendees, and (4) stating the statutory basis for entering non-public session. It also held that a member s s to a quorum of the board, letting them know what motion she would make at the next meeting and implying which way she would vote and why, constituted an improper meeting. Petitioner sought, among other things, records of communications, including s, involving school board members, other government officials, or administrators of the school district or town concerning any arrangement for non-meetings as defined in RSA 91-A, as well as any records of communications involving the search or selection of an attorney involved in any such meetings. The court ordered the Board to comply with all of petitioner s requests, except for documents regarding the Board s meetings with attorneys. The court also ordered the Board to release the names of the superintendent applicants. Roy Frazel v. Concord School District, No.: CV-761 (Dec. 28, 2011). Petitioner requested (1) minutes from a meeting held on 12/20/2010, (2) notes from a meeting between the superintendent and a specific individual in July 2010, as well 12

13 as any and all s on the District s server that contain [petitioner s name], and, for the first time in a Court Petition, (3) an opinion held by District counsel regarding a particular statute; and (4) information from district IT personnel about the time a document was actually created. The court denied the originally requested items because the minutes petitioner sought were from a meeting with counsel (a non-meeting); documents requested were not on the district s server as had been requested. Also, there was no standing to make a request for the first time in court when the documents were never previously requested and, in any event, opinions of counsel were not subject to Right-to-Know. 13