2004 Spring, 34. The Right To Know Law.

AuthorBy Attorney Daniel J. Mullen

New Hampshire Bar Journal

2004.

2004 Spring, 34.

The Right To Know Law

New Hampshire Bar JournalSpring 2004, Volume 45, Number 1The Right To Know LawBy Attorney Daniel J. MullenRSA 91-A, commonly known as the "Right-to-Know Law," governs access to public records in the State of New Hampshire. The preamble to RSA 91-A states:

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. The Right-to-Know Law was intended to increase public access to governmental proceedings in order to augment public control of government and encourage administrative responsibility (EN1).

The Right-to-Know Law provides access not only to documents, but also to meetings and other government proceedings. It outlines circumstances under which access is granted; and it provides exemptions in certain circumstances.

For over 30 years, the Attorney General's Office has provided guidance in complying with RSA 91-A to state and local officials, the public and the media, in order to promote the principles of openness and access to state and local government. This article will provide a general overview of the statute as it has evolved through amendment and caselaw over the years.

I. SCOPE OF THE RIGHT-TO-KNOW LAW

The Right-to-Know Law establishes certain procedures to be followed by governmental bodies and certain rights of access by members of the general public to the meetings and records of those bodies. The Right-to-Know Law expressly applies to the Legislature, the Governor's Council, the Board of Trustees of the University System of New Hampshire, and any board, commission, agency or authority of any county, town, municipal corporation, school district, school administrative unit, charter school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto (EN2).

RSA 91-A has been construed by the New Hampshire Supreme Court to apply to all state executive branch departments (EN3). Several state statutes create bodies, corporate and politic (EN4). Some of the statutes specify whether the entity is or is not subject to the Right-to-Know Law, but others are silent on this point. Absent express statutory language, applicability of the Right-to-Know Law will depend on the nature and extent of the governmental functions performed. The New Hampshire Supreme Court has not reported any decisions holding that the courts of this State are subject to RSA 91-A. The court system has established procedures of its own for providing public access to its records and proceedings (EN5).

II. PUBLIC MEETINGS AND PUBLIC PROCEEDINGS

The definitional sections of the Right-to-Know Law are critical. Set forth below are a number of the definitions used to define the scope of the statute.

Public Proceedings and Meetings. Public proceedings are defined as "the transaction of any functions affecting any or all citizens of the State (EN6)." Meeting is defined as the convening of "a quorum of the membership of a public body . . . to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power (EN7)."

Quorum Requirements. The Right-to-Know Law provides that "all public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies (EN8)." A majority of agency members constitutes a quorum absent some other controlling statute (EN9). When less than a quorum convenes, there is no meeting within the meaning of the Right-to-Know Law unless the group is a committee of the larger body. In that case, the Right-to-Know Law applies if a quorum of the subcommittee has convened.

Exemptions. Certain gatherings of members of a public body are exempt from RSA 91-A. Specifically, the Right-to-Know Law exempts "any chance meeting or social meeting, not planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made (EN10)." Additionally, the Right-to-Know Law excludes strategy or negotiations with respect to collective bargaining and consultation with legal counsel (EN11).

Notice. If the governmental body is subject to the...

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