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Recent Amendments Bring New Hampshire's Right-to-Know Law Into the 21st Century

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The New Hampshire legislature recently amended the Right-to-Know Law, RSA chapter 91-A, in an attempt to clarify the obligations of public bodies with respect to electronic communications and records.[1] These changes are the result of several years of work to bring the Right-to-Know Law into the 21st century by more clearly defining which government proceedings and records must be made available to the public. The revised statute will have an impact upon the work of all public bodies, including municipal boards and county government, and the people who appear before those bodies and want to understand their day-to-day functions and deliberations.

A decision of the New Hampshire Supreme Court in 2001 foreshadowed these changes, when the Court emphasized the difficulty of addressing the public's right to access electronic data on a case-by-case basis, and asked the legislature to "promptly examine the Right-to-Know Law in the context of advancing computer technology."[2] In response, the Right-to-Know Study Commission was formed to address these issues, culminating in a report issued in October 2004 recommending certain changes. Although not all of the Study Commission's recommendations were ultimately adopted, the recent amendments finally bring some much-needed clarification to the Law.

First, throughout RSA chapter 91-A, the term "public record" was replaced with "governmental record" in order to make clear that not all records generated by a public body must be made open to the public. "Governmental records" are broadly defined to include "any information created, accepted, or obtained" by or on behalf of any public body, or a quorum or majority thereof, in furtherance of its official function. "Information" is defined as "knowledge, opinions, facts or data of any kind and in whatever physical form kept or maintained," including written, aural, visual or electronic. The definition of governmental records expressly includes communications received in paper or electronic format (such as emails) by a quorum or majority of the public body, whether they are received at or outside of a meeting of the public body.

Governmental records in the possession, custody or control of the public body are subject to inspection by the public unless they fall within one of the statutory exemptions. Public bodies have an obligation to keep and maintain all governmental records in their custody, and must retain electronic records for the same periods as their paper counterparts. The amended Law provides an exemption for electronic records that have been "initially and legally deleted," meaning that it is no longer readily accessible. However, transferring documents to a readily accessible "deleted items" folder does not constitute deletion of the record.

Under the Right-to-Know Law, electronic records can be produced upon request by either creating an electronic copy or through a paper printout. The new Law also codifies the New Hampshire Supreme Court's holding that public bodies are not required to compile or assemble requested information into a format different from what is regularly maintained.[3]

The other question that frequently arises with respect to electronic communications is whether the Right-to-Know Law is violated when members of a public body communicate outside of public meetings. The Study Commission recognized that this is of particular concern to municipal bodies, where a quorum may be as few as two members. In attempting to balance the Right-to-Know Law's goal of making government as transparent as possible against the reality of needing to get work done, the Study Commission felt that some communication outside of public meetings should be permitted as long as the public's right to know is protected as much as is practicable. The Study Commission thus recommended adding a requirement that participants must be able to communicate with each other contemporaneously in order for communications to be considered a "meeting" that must be made open to the public.[4] The intent of this revision was to permit email and similar communications between a quorum of the public body outside of a public meeting, while ensuring that the spirit of the Law will not be circumvented through the use of electronic communications (such as telephone conferences or instant messaging) to discuss or deliberate over official business.[5] A new provision was also added to RSA 91-A to make clear that deliberations on matters over which a public body has supervision, control, jurisdiction or advisory power must take place in a public meeting unless otherwise exempted under the Law.

The recent amendments to RSA chapter 91-A thus provide some clarification on many of the issues that have been troubling municipal bodies with respect to electronic communications. For example, emails between members of a public body would generally be considered permissible as long as they are not used to circumvent the spirit and purpose of the Right-to-Know Law. When email communications rise to the level of deliberations, however, they would not be permitted. Emails involving a quorum or majority of the public body would be considered governmental records, which should be maintained by the public body (depending on retention requirements) and made available upon request unless a statutory exemption applies. When there is doubt as to whether communications outside of public meetings are permitted, it is clear that the Right-to-Know Law should be interpreted in a manner that preserves the openness of government as much as possible. The possibility still remains for reasonable disagreement on these issues, which the courts will have to address on a case-by-case basis. Your counsel can help you navigate the new law and how it affects the functioning of local government.