Todd I. Selig: Embracing transparency — Understanding New Hampshire’s Right-to-Know Law

In New Hampshire, the Right-to-Know Law (RSA 91-A) ensures that the business of government remains open to the people it serves. It applies broadly, encompassing state and local entities, from the highest levels of state government to the smallest municipal boards, commissions and subcommittees. It guarantees public access to meetings and records while outlining specific requirements for compliance. For elected and appointed officials, understanding and adhering to RSA 91-A is both a legal obligation and a commitment to good governance.

What the Right-to-Know Law covers

The Right-to-Know Law applies broadly to all public bodies, including state agencies, municipalities, counties, boards, committees and commissions. It governs two main areas:

1. Public meetings: Meetings involving a quorum (the majority) of a public board discussing or acting upon official matters must be open to the public, properly noticed, and documented
2. Public records: Citizens have the right to inspect and copy government records, except those specifically exempted by law

Public meetings: Requirements and exceptions

For a meeting to be lawful, a public board must provide at least 24 hours’ notice, excluding Sundays and holidays. The notice must be posted in at least two public places, such as the town hall and municipal website.

All meetings must be open to the public, and attendees are allowed to record proceedings via notes, audio, video or photography.

Minutes serve as a critical record of public meetings, providing a snapshot of discussions and decisions. They must be made available within five business days and include the names of members present, a brief summary of topics discussed, and any final actions taken. If your town or public body maintains a website, the approved meeting minutes must be posted in a consistent and reasonably accessible location on the website, or the website must contain a notice stating where the minutes may be reviewed and copies requested.

What is not considered a public meeting?

Not all gatherings constitute a meeting under RSA 91-A. The law exempts:

• Chance or social encounters where no official business is discussed
• Consultations with legal counsel
• Strategy discussions related to collective bargaining
• Circulation of draft documents intended only to formalize decisions already made in a public meeting

Electronic communications and governmental records

In today's digital world, emails and text messages related to government business are considered public records and subject to disclosure. Members of public boards, committees, and subcommittees must avoid sequential communications that could be interpreted as deliberations outside of a properly noticed meeting.

A public board may, but is not required to, allow members to participate remotely in meetings only when physical attendance is not reasonably practical, though a quorum must still be physically present unless an emergency is declared. If members are permitted to participate remotely, all votes must be by roll call.

Nonpublic sessions: When can meetings be closed to the public?

While government transparency is the default, certain discussions may be conducted in nonpublic sessions. RSA 91-A permits nonpublic meetings for limited reasons, including, among others:

• Hiring, firing, or disciplining public employees
• Matters that could harm an individual's reputation, except for the members of the public board; the person whose reputation might be harmed has a right to request an open meeting under the law, however no notice of the meeting is required to be given to that individual
• Acquisition or sale of real estate if public discussion would harm negotiations
• Consideration of pending or threatened litigation
• Security matters relating to emergency preparedness or terrorism
• Consideration of legal advice provided by legal counsel, either in writing or orally, to one or more members of the public body, even where legal counsel is not present

To enter a nonpublic session, a motion must be made in a public meeting, specifying the precise reason under the law. A roll-call vote must be taken and recorded.

Minutes from nonpublic sessions must be made public within 72 hours unless a two-thirds majority of the board votes to seal them in public session due to concerns about reputation, rendering the proposed action ineffective, or terrorism. In this situation, the minutes may be withheld until such circumstances no longer apply.

I’ve found it’s best to use nonpublic sessions sparingly.

Access to public records

Citizens have the right to inspect and copy most government records. Requests for records must be fulfilled within five business days. If access is denied, the public body must provide a written explanation citing the specific exemption.

RSA 91-A:4 allows a municipality to implement a “reasonable charge” to cover the cost of providing copies (the actual cost) or electronic media, but the government entity cannot charge for the time spent locating them. A town that seeks to charge fees for right-to-know requests must implement a policy so that practices are transparent, uniform and consistent, and must allow for the waiver of fees for requesters who cannot afford to pay.

Records that may be exempt from disclosure include:

• Personnel and medical files
• Draft documents not shared with a quorum of the public board
• Attorney-client privileged materials
• Confidential commercial or financial information

The right-to-know ombudsman

A recent addition to RSA 91-A enforcement is the establishment of the state’s right-to-know ombudsman. This office is intended to provide a faster, cost-effective means of resolving disputes regarding public records and open meetings, reducing the need for litigation in court.

Practical tips for compliance

1. Ensure proper notice: Always post meeting notices at least 24 hours in advance
2. Maintain accurate minutes: Record and publish minutes within five business days; retain draft copies and notes until minutes are formally approved
3. Avoid sequential communications: Don’t use email or text messages to deliberate outside of meetings
4. Use nonpublic sessions sparingly: Enter into nonpublic sessions only for limited legally permitted reasons and ensure minutes are taken
5. Respond promptly to records requests: Provide requested records or a valid reason for denial within five business days; consider reaching out to the requester to see if it’s possible to help them identify exactly what they’re looking for to save everyone time, effort and money
6. Be understanding and kind: Reaching out to the government can be awkward and scary for residents; don’t forget, we’re here to serve the public

In my experience, transparency is the foundation upon which trust is built in local government. Without it, the fabric of our democracy begins to fray. In this time marked by increased skepticism and disillusionment of public processes, the Right-to-Know Law offers a powerful antidote, reminding us that government operates best when it operates in the light of day.

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Originally from Laconia, Todd Selig is the longtime town manager in Durham, where he lives with his family.