State officials troubleshoot information law
NASHUA – Three selectmen separately show up for breakfast at the same restaurant.
Are they breaking the state’s Right-To-Know Law?
Litchfield Selectmen George Lambert says he and the others on the five-person board are afraid they would be. With only so many places to eat, it’s happened before, but Lambert said they have agreed that one selectmen would leave the restaurant.
“People might think we’re lobbying or caucusing,” he said.
Lambert posed this question to Christine Fillmore, an attorney with the New Hampshire Local Government Center, during a tutorial Thursday on the state’s Right-to-Know Law.
“You don’t have to leave,” she told him. “The law allows for a chance or social encounter that was not intended and no action or discussion takes place.”
About 50 people were in the audience at the meeting, held for local municipal officials at City Hall in Nashua on Thursday morning. Some came from as far away as Keene and Gilmanton.
Fillmore started by going over the basic tenets of the law, which states “openness in the conduct of public business is essential in a democratic society.”
“That is what we’re trying to accomplish with the Right-to-Know Law,” she said. “For the most part, the default position is government should be open to the public because it is the government of the public.”
When government officials start looking for loopholes and ways around the law to shut the public out, that is when they start getting into trouble, she said. Paul Bergeron, Nashua’s city clerk, said the city invited Fillmore to speak in response to Sunshine Week, an annual effort by newspapers to gauge government’s responsiveness to citizens.
Bergeron said the idea came up during a meeting with Mayor Donnalee Lozeau and other department heads.
“There was mention that Sunshine Week was coming up and to make sure whoever deals with records requests to be aware,” he said.
Bergeron said recent turnover in staff and with so many subtleties in the law, the idea was proposed to have someone come and give a presentation.
The Local Government Center provided a speaker at no cost, he said. The only expense was the refreshments provided, which Bergeron said he paid out of his own pocket.
Fillmore spent much of the two-hour presentation discussing public meeting law, what types of documents are exempted from disclosure, and how to handle information requests.
The law assumes that all meetings of a public body should be open to the public unless the meeting falls under one of the exemptions outlined in the law that allows for members to meet in private.
One common misconception is that just because a subject falls under one of the exemptions doesn’t mean the body is required to go behind closed doors, only that they have this option, she said.
One of the ways the law has been updated in recent years is to take into account communication over e-mail, she said.
The law forbids members of a public body to hold meetings via e-mail, essentially shutting out the public, she said. Discussing when a meeting should be held is fine, but having back-and-forth discussions about public business is not, she said.
E-mails between quorums of public bodies are also considered public records, she said.
“If you don’t want it showing up on the front page of the Union Leader, I would suggest you don’t put it in an e-mail,” she said.
Public bodies and agencies should discuss and set policies on managing their e-mail, which includes figuring out when it is acceptable to delete e-mail. Changes to the law have also taken into account the electronic age when it comes to access to public records. Public records, even if they are in a computer, have to be made available when requested, she said. The law also now allows for members of a board that are unable to be at a meeting to take part via speakerphone.
This was utilized last year in Nashua when alderman Richard LaRose, hospitalized at the time, took part in a vote on the Broad Street Parkway over the telephone.
Fillmore talked about what is required in the minutes of meetings, which are the names of those present, a summary of what was discussed and any actions taken.
She cautioned, however, that the law outlines only what is minimally required. Boards could choose to produce verbatim minutes or find some kind of middle ground, she said.
“It could be a brief description of what happened, but would give someone who was not at the meeting an idea of what happened. That is the purpose of minutes,” she said.
Like meetings, all public records are assumed to be available, unless they are specifically exempted, she said.
Among those exempted are internal personnel files, library records, student records and records of ongoing police investigations. Some records can be partially released by redacting the information that is confidential, she said.
“Just because one little piece of a record is confidential, it doesn’t mean the whole record is confidential,” Fillmore said.
One of the most important things to remember, she said, is that a person’s motive for requesting documents is irrelevant. People should be able to walk into any agency and request records without giving a reason, Fillmore said.
“They don’t have to tell and the Supreme Court has said don’t ask,” she said.
She added that public agencies do not have to drop everything they are doing to comply and are allowed to ask for more clarity with broad requests that are large in scope.
The law requires that agencies respond to requests for information within five days, but that response could say that it may take longer to comply with the request, she said.
The penalty for violating the Right-to-Know Law is usually divulging the information, she said.
In some cases where the law is knowingly violated, a judge will order the public agency to pay the attorney’s fees of the complainant.
In the most severe cases, public officials can be removed from office, but Fillmore said she couldn’t recall that happening. Fillmore said court cases often will help to clear up uncertain areas of the law, but several gray areas remain.