Right to Know Law Oversight Commission Minutes
29 October 2009
Draft Minutes--Unapproved
Present: Sen. John H. Barnes, Jr., Rep. Jim Garrity, Rep. Jessie L. Osborne, Rep. Kim Casey, Rep. Lucy Weber, John Lassey, Esq., NHMA, County Commissioner Carol H. Holden, NH Association of Counties; Jim Kennedy, Esq., AG’s Office, Tom Reid, NHAC.
Also Present: Rebekah Becker, NH Banking Department; Cordell Johnston, NH Municipal Ass’n, David Frydman, House Counsel, Trent Spiner, NH Press Ass’n, Dean Michener.
The meeting was opened and recessed, as a quorum was not present.
The Annual Report Subcommittee, consisting of members Lassey, Barnes, Garrity, Weber, Kennedy, Holden, Osborne and Casey, was called to order. Mr. Lassey distributed a draft annual report. Changes werere proposed, as follows:
Line 1—change date to “…November 1, 2008.”
Line 15—change to “…House Judiciary Committee”
Line 21—change to “…House Judiciary Committee) and Attorney General’s Office and others.”
Add to bullet points—“Examine term and purpose of mission”
Line 28— add “determining appropriate fees”
The report with the above changes was moved by Ms. Weber, seconded by Ms. Holden, and unanimously recommended to the full Commission.
The Annual Report Subcommittee meeting was then adjourned.
A quorum having been achieved with the arrival of Mr. Reid, the Commission meeting was reopened.
Mr. Lassey was thanked for his authorship of the Annual Report. The adoption of the Annual Report as recommended by the Annual Report Subcommittee was moved by Ms. Holden, seconded by Ms. Casey, and was approved unanimously. Mr. Lassey will make the agreed changes and will submit the report with Mr. Garrity.
Mr. Kennedy announced that this will be his last meeting with the Commission as he is leaving the AG’s Office, and will become the Deputy Solicitor for Concord. There will be a new designee from the AG’s office, but details been decided yet. Mr. Kennedy was thanked for his service, and Mr. Garrity will make a formal request for a new appointment. It was noted that the updated AG’s Memo on the Right to Know Law finished in July was a great achievement, and a great collective effort by members of the AG’s Office. It is available online. The AG’s Office has been working on creating an on-line tutorial on the Right to Know, similar to that is already in place for election officials.
The minutes of the May 22 2009 meeting were duly approved. They are available online at nhsunshine.blogspot.com.
Ms. Weber gave a rundown of the pending bills retained from the 2009 session. They will be considered at the Executive Session of the House Judiciary Committee on Nov. 17.
Proposed Legislation for 2010. Mr. Garrity has filed an LSR to remove the sunset provision for the Right to Know Law Commission. There was some discussion as to changes to the membership of the Commission. It was suggested that it would be easier to fill the School Boards Association slot if the requirement was a member appointed by the School Boards Association, rather than requiring that the appointee be a school board member. The exact composition of the Commission will be re-examined.
Rep. Watrous has filed two bills. One would add to the definition of a public body any non-profit organization receiving two thirds of its budget or $50,00 per year from the state or a public body. The other is a remedies bill making significant changes to existing law. It would give the AG’s office the task of determining if a violation of the Right to Know law has occurred, and give that office the power to issue orders. Mr. Kennedy noted this might be problematic when it is the AG’s office that is alleged to have committed the violation. Mr. Reid noted that the issue of a quasi-judicial board had been studied several years ago, and theat there should be a significant amount of reseach already in the file.
The discussion then turned to subcommittees and an action plan for 2010.
Cost Recovery. This subcommittee will explore the different methods by which entities may recover costs incurred in complying with the Right to Know Law. Members are Reid, Pitts, Osborne, and the new AG’s designee. Mr. Reid will schedule meetings through Mr. Garrity or Ms. Weber.
Continuing Role of the Commission. Members are Rodgers, Holden, Judge and Casey. Mr. Rodgers will schedule the meetings.
Electronic Communication. The subcommittee met in June. Mr. Lassey summarized their report. Mr. Lassey will draft legislation on when communication with an individual becomes a governmental record. One draft was written, but Mr. Lassey is not satisfied with the result. He circulated the draft to Attorneys Frydman, Johnston and Meyers. Mr. Meyers suggested the draft be sent to Ms. Frizzell. Mr. Frydman, prior to the meeting, made extensive comments to Mr Lassey, and suggested to Mr. Lassey that the law as it stands is clear enough. Mr. Kennedy expressed concern with the draft and said that to become a governmental record, the document should be accepted by a quorum of the body whose record it becomes. Mr. Lassey said he was not wedded to the present language. Ms. Casey noted the importance of keeping up with new software developments and new technology update, and the potential problems they may create. The subcommittee will continue to meet. Members continue to be Lassey, Garrity and Barnes.
New Business:
Scheduling. The Commission will meet next in January.
Public comment. Rebekah Becker of the NH Banking Department inquired about LSR 2013, re posting of minutes, and HB 53 re definition of public body. Mr. Johnston reminded us that changes had already been agreed to with respect to HB 53. The bill regarding posting of minutes is sponsored by RE. Liz Merry, who would have the bill text.
The meeting was duly adjourned at 11:40 AM.
Respectfully submitted,
Lucy Weber
Monday, November 9, 2009
Monday, September 14, 2009
Right to Know Law Oversight Commission Minutes - 22 May 2009 - Approved
Right to Know Law Oversight Commission Minutes
22 May 2009
Draft Minutes--Approved
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity;, Rep. Kim Casey, Rep. Lucy Weber; Ron Rodgers, Esq., public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; Carol Holden; Jim Kennedy;
Also Present: Bernard W. Folta; Rebekah Becker, NH Banking Department; Rep. Rick Watrous, Patrick Murphy, Senate Staff for Senator Cilley; Cordell Johnston, NHMA.
Rep. Casey stated her email address is caseycorps@aol.com. Previous emails were sent to an incorrect address.
The minutes of the February meeting were amended to reflect that Rep. Watrous had sued the City of Concord, not CCTV. The minutes of the February meeting were approved as amended.
Legislative update. HB 89 has been voted Inexpedient to Legislate.
HB 3 Senator Barnes said that Atty. Lassey and Atty. Smith had spoken against the bill in the Senate. Their concern is with the creation of a new evidentiary privilege, rather than on the effect on the Right to Know Law. The bill has little effect on the statute.
SB 197, reducing the number for a quorum, was voted Inexpedient to Legislate by the House. House members found it unacceptable that four members out of the whole committee could potentially act for the entire body.
Mission of Commission. Rep Casey expressed concern that after the Commission sunsets in 2010, there will be no ongoing entity with the expertise of this body. There ought to be a group that continues to look at sunshine law issues. Rep. Weber suggested focusing on the technology aspects until 2010, then consider broadening the mission explicitly to whatever the body thinks is important. Atty. Smith said that the multiplicity of scientific, technical and communications advances had revolutionized everything. The speed of the science revolution shows the need for a separate entity for the Right to Know law. The question is how to keep track of this stuff. It is not easy for the Judiciary Committee to keep up. However, it is wasteful to have a large commission where some members do not care.
(Tom Reid arrived.) Mr. Judge said there was an irony to the sunshine law commission being sunsetted. The commission was asked to work on the antenna of the ship, but found that the ship had holes below the waterline which had to be fixed first. Other things need to be addressed. Penalties are one. Atty. Rodgers said the commission should identify issues, produce reports, draft legislation and review legislation from other sources. The commission should take an official position, not just have individual members state their own positions to the legislature, as is now done. Ms. Holden said the commission should be proactive not reactive as they are on the county level. (Rep. Casey left for another meeting.)
Sen. Barnes said commission members make a difference in front of legislative committees. Atty. Lassey said there is a logistical issue. A bunch of bills were looked at, but the Commission did not get off the ground on taking a position. The Commission should focus the bulk of the meetings so we have the time to review and take a position early. Bills should be collected and distributed. Atty. Smith said the general sense was that the Commission should be reborn in a slightly different form. We should resolve what the entity should be and what it should look like. Senator Barnes suggested bringing in Chairs of Committees to see what they want. Rep. Weber said it was useful to have input that would not necessarily be found on the Judiciary Committee, as, for example, input from people in County government. (Mr. Pitts arrived.)
Atty. Rodgers spoke about the mission beyond the legislatiure. He would like to see outreach and public education. Legislation to extend the Commission should be designed with changes we think would make sense. It might make sense to name asubcommittees to draft legislation with the proposed changes. It was moved and seconded that the general sense of the Commission was that it should continue, and that a subcommittee should be appointed to look into the structure. All voted in favor. A subcommittee was appointed consisting of Atty. Rodgers, Ms. Holden, and Atty. Judge. Atty. Rodgers is to set up the meetings.
In discussing further the task of this subcommittee, it was the sense of the meeting that the purposes of the Commission are to advise the legislature, to propose legislation, and to educate and advise the public. Atty. Judge noted that Cordell Johnston does a lot of education. Atty. Smith said there is a massive need for education, and miles to go on that front. He insists on training for folks in his municipality. Atty. Kennedy noted that the Attorney General’s web site has not yet been updated, but it will be up within a month. (Senator Barnes left for another meeting.)
Two further subcommittees were approved by the Commission members, one on Cost Recovery and one on Electronic Communication.
Cost Recovery. The issue of how much a town may charge for providing copies of documents is an ongoing one. There is a cost in time as well as in materials. The statute is unclear what expenses may be recovered. The Attorney General’s policy is the actual costs of the copying—25 cents per page or 20 cents per PDF. This does not include the time to assemble the documents, nor does it include the costs of reviewing documents to ensure that no material that must remain confidential becomes public. Some towns add in the retrieval costs. The methods of charging for copies are very diverse. The state has employees whose whole job description is to ensure compliance with the Right to Know law. Their tasks would include analysis of whether the requested document is subject to disclosure, and whether redaction of certain information is required. Novel questions of redaction can involve significant attorney time. Another ongoing issue is the question of who qualifies as a “citizen” for purposes of RSA 91-A.
The Cost Recovery Subcommittee members are Atty. Kennedy, Mr. Pitts, and Mr. Reid. Atty. Kennedy will schedule the meetings..
The Electronic Communication subcommittee will consist of Atty. Lassey, Rep. Garrity, and Sen. Barnes. Atty. Lassey will schedule the meetings.
The meeting was adjourned at 11:40 am.
Respectfully submitted,
Lucy Weber
22 May 2009
Draft Minutes--Approved
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity;, Rep. Kim Casey, Rep. Lucy Weber; Ron Rodgers, Esq., public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; Carol Holden; Jim Kennedy;
Also Present: Bernard W. Folta; Rebekah Becker, NH Banking Department; Rep. Rick Watrous, Patrick Murphy, Senate Staff for Senator Cilley; Cordell Johnston, NHMA.
Rep. Casey stated her email address is caseycorps@aol.com. Previous emails were sent to an incorrect address.
The minutes of the February meeting were amended to reflect that Rep. Watrous had sued the City of Concord, not CCTV. The minutes of the February meeting were approved as amended.
Legislative update. HB 89 has been voted Inexpedient to Legislate.
HB 3 Senator Barnes said that Atty. Lassey and Atty. Smith had spoken against the bill in the Senate. Their concern is with the creation of a new evidentiary privilege, rather than on the effect on the Right to Know Law. The bill has little effect on the statute.
SB 197, reducing the number for a quorum, was voted Inexpedient to Legislate by the House. House members found it unacceptable that four members out of the whole committee could potentially act for the entire body.
Mission of Commission. Rep Casey expressed concern that after the Commission sunsets in 2010, there will be no ongoing entity with the expertise of this body. There ought to be a group that continues to look at sunshine law issues. Rep. Weber suggested focusing on the technology aspects until 2010, then consider broadening the mission explicitly to whatever the body thinks is important. Atty. Smith said that the multiplicity of scientific, technical and communications advances had revolutionized everything. The speed of the science revolution shows the need for a separate entity for the Right to Know law. The question is how to keep track of this stuff. It is not easy for the Judiciary Committee to keep up. However, it is wasteful to have a large commission where some members do not care.
(Tom Reid arrived.) Mr. Judge said there was an irony to the sunshine law commission being sunsetted. The commission was asked to work on the antenna of the ship, but found that the ship had holes below the waterline which had to be fixed first. Other things need to be addressed. Penalties are one. Atty. Rodgers said the commission should identify issues, produce reports, draft legislation and review legislation from other sources. The commission should take an official position, not just have individual members state their own positions to the legislature, as is now done. Ms. Holden said the commission should be proactive not reactive as they are on the county level. (Rep. Casey left for another meeting.)
Sen. Barnes said commission members make a difference in front of legislative committees. Atty. Lassey said there is a logistical issue. A bunch of bills were looked at, but the Commission did not get off the ground on taking a position. The Commission should focus the bulk of the meetings so we have the time to review and take a position early. Bills should be collected and distributed. Atty. Smith said the general sense was that the Commission should be reborn in a slightly different form. We should resolve what the entity should be and what it should look like. Senator Barnes suggested bringing in Chairs of Committees to see what they want. Rep. Weber said it was useful to have input that would not necessarily be found on the Judiciary Committee, as, for example, input from people in County government. (Mr. Pitts arrived.)
Atty. Rodgers spoke about the mission beyond the legislatiure. He would like to see outreach and public education. Legislation to extend the Commission should be designed with changes we think would make sense. It might make sense to name asubcommittees to draft legislation with the proposed changes. It was moved and seconded that the general sense of the Commission was that it should continue, and that a subcommittee should be appointed to look into the structure. All voted in favor. A subcommittee was appointed consisting of Atty. Rodgers, Ms. Holden, and Atty. Judge. Atty. Rodgers is to set up the meetings.
In discussing further the task of this subcommittee, it was the sense of the meeting that the purposes of the Commission are to advise the legislature, to propose legislation, and to educate and advise the public. Atty. Judge noted that Cordell Johnston does a lot of education. Atty. Smith said there is a massive need for education, and miles to go on that front. He insists on training for folks in his municipality. Atty. Kennedy noted that the Attorney General’s web site has not yet been updated, but it will be up within a month. (Senator Barnes left for another meeting.)
Two further subcommittees were approved by the Commission members, one on Cost Recovery and one on Electronic Communication.
Cost Recovery. The issue of how much a town may charge for providing copies of documents is an ongoing one. There is a cost in time as well as in materials. The statute is unclear what expenses may be recovered. The Attorney General’s policy is the actual costs of the copying—25 cents per page or 20 cents per PDF. This does not include the time to assemble the documents, nor does it include the costs of reviewing documents to ensure that no material that must remain confidential becomes public. Some towns add in the retrieval costs. The methods of charging for copies are very diverse. The state has employees whose whole job description is to ensure compliance with the Right to Know law. Their tasks would include analysis of whether the requested document is subject to disclosure, and whether redaction of certain information is required. Novel questions of redaction can involve significant attorney time. Another ongoing issue is the question of who qualifies as a “citizen” for purposes of RSA 91-A.
The Cost Recovery Subcommittee members are Atty. Kennedy, Mr. Pitts, and Mr. Reid. Atty. Kennedy will schedule the meetings..
The Electronic Communication subcommittee will consist of Atty. Lassey, Rep. Garrity, and Sen. Barnes. Atty. Lassey will schedule the meetings.
The meeting was adjourned at 11:40 am.
Respectfully submitted,
Lucy Weber
Wednesday, June 10, 2009
E-mail subcommittee Minutes
Right to Know Law Oversight Commission
E-mail subcommittee Minutes
10 June 2009
at Legislative Office Building Room 304, Concord, NH
Draft minutes to be considered for approval at next meeting.
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; John Lassey, Esq., NHMA
Also Present: Jeffrey Meyers, Esq., Senate Legal Counsel; David Frydman, Esq., House Legal Counsel; Cordell Johnson, NHLGC
The meeting was called to order at 8:00am.
Sub-committee mission: Rep. Garrity pointed the members to the primary mission of the sub-committee, by quoting from RSA 91-A:13 Duties of the Right to Know Commission. Namely, “The commission shall study:
I. The need for disclosure requirements or guidelines for email and other electronic communication occurring between and among state, county, and local government appointed and elected officials and employees of governmental entities.
II. The need for disclosure requirements or guidelines for electronic communications with constituents of state, county, and local government appointed and elected officials and employees of governmental entities.”
Discussion was held on the topic of “When is an email a public record? When does it become a public record? Does it matter if emails are on a public official’s private email account or public account?” The subcommittee and public exchanged ideas, floated concepts and made reference to some recent cases of RTK requests for emails from individual public officials.
After thorough discussion and debate, the subcommittee agreed that it should develop some preliminary general “factors to consider” in order to assist in determining when a communication should be treated as a public record. Mr. Lassey will work on that task and will report back when he feel ready to present his initial draft to the sub-committee. At that time, another sub-committee meeting will be scheduled.
The next meeting will be held at the call of the Chair (Rep. Garrity)
The meeting was adjourned at 9:03 am.
Rep. Garrity has set up a blog for the Commission at http://nhsunshine.blogspot.com/ . The subcommittee minutes will be posted there.
Respectfully submitted,
Rep. James Garrity
E-mail subcommittee Minutes
10 June 2009
at Legislative Office Building Room 304, Concord, NH
Draft minutes to be considered for approval at next meeting.
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; John Lassey, Esq., NHMA
Also Present: Jeffrey Meyers, Esq., Senate Legal Counsel; David Frydman, Esq., House Legal Counsel; Cordell Johnson, NHLGC
The meeting was called to order at 8:00am.
Sub-committee mission: Rep. Garrity pointed the members to the primary mission of the sub-committee, by quoting from RSA 91-A:13 Duties of the Right to Know Commission. Namely, “The commission shall study:
I. The need for disclosure requirements or guidelines for email and other electronic communication occurring between and among state, county, and local government appointed and elected officials and employees of governmental entities.
II. The need for disclosure requirements or guidelines for electronic communications with constituents of state, county, and local government appointed and elected officials and employees of governmental entities.”
Discussion was held on the topic of “When is an email a public record? When does it become a public record? Does it matter if emails are on a public official’s private email account or public account?” The subcommittee and public exchanged ideas, floated concepts and made reference to some recent cases of RTK requests for emails from individual public officials.
After thorough discussion and debate, the subcommittee agreed that it should develop some preliminary general “factors to consider” in order to assist in determining when a communication should be treated as a public record. Mr. Lassey will work on that task and will report back when he feel ready to present his initial draft to the sub-committee. At that time, another sub-committee meeting will be scheduled.
The next meeting will be held at the call of the Chair (Rep. Garrity)
The meeting was adjourned at 9:03 am.
Rep. Garrity has set up a blog for the Commission at http://nhsunshine.blogspot.com/ . The subcommittee minutes will be posted there.
Respectfully submitted,
Rep. James Garrity
Wednesday, February 11, 2009
Feb. 6, 2009 - Draft Meeting Minutes: NH Right to Know Oversight Commission
Right to Know Law Oversight Commission Minutes
6 February 2009
Draft minutes to be considered for approval 20 March 2009.
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; Rep. Jessie Osborne, Rep. Kim Casey, Rep. Lucy Weber; Jim Kennedy, Esq., AG’s Office; Ron Rodgers, Esq., public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; James Pitts, NHMA;
Also Present: Bernard W. Folta; William L. Chapman, Orr & Reno, P.A; Rebekah Becker, NH Banking Department; Rep. Rick Watrous
The meeting was called to order at 10:09 am. The Association of Counties is meeting today, so Carol Holden and Tom Reid will not be present.
Filling of Vacancies: Rep. Casey has contacted the NH Association of School Boards to ask that they appoint a representative. Rep. Garrity has contacted the NH Association of School Administrators, and they will enquire about Dennis Pope. Kevin Shea, the telecommunications representative, is now with Fairpoint. Rep. Garrity spoke to him and he said that his duties will not allow him to attend regularly. He said his assistant would be a good addition, and will be able to attend meetings in the future. Peter Croteau, the IT member, had thought that his membership on the Commission was tied to his former job description, but it his expertise that is the qualifier, Rep. Garrity will contact him regarding his continued willingness to serve.
Minutes: The minutes of the 16 January meeting were amended to substitute Tom Reid’s name for that of Jim Reams, and with that amendment were unanimously approved. Rep. Garrity has set up a blog for the Commission at http://nhsunshine.blogspot.com/ . The minutes will be posted there, and he will discuss a link from the Legislature’s official web site with Information Services.
Reduction of Quorum: Sen. Barnes has gone to the Senate Rules Committee and gotten a waiver, allowing him to file a bill reducing the quorum requirement to seven. The bill is now in Legislative Services and can be signed on.
Status of House Bills: Rep. Weber reported on the status of bills currently in Judiciary or Legislative Administration. Judiciary has held hearings on the following bills:
HB 89, regarding an exception to the law for records involving suicides
HB 206, the Commission bill regarding retention of records beyond the required date
HB 425, the Commission bill on remedies proposing fines on individual officeholders
HB 135, the bill requiring invalidation of all decisions taken in violation of the law
HB 266, the exception for certain voter records
HB 53, the Commission revision on the definition of public body
HB 379, the collective bargaining revision when two boards are involved.
Hearings have been held on all these bills. A subcommittee has been named for HB 425, and HB 379, and Rep. Weber assumes that several of the other bills, for example, HB 135, will come to that subcommittee as well. She will let the Commission members know when subcommittee work sessions or full committee executive sessions are scheduled.
With respect to HB 379, collective bargaining when two boards are involved, Rep. Smith asked why that would not be covered by the collective bargaining provision already in the statute. Rep. Weber stated this bill was requested by the City of Nashua, where it became a problem. There, the financial provisions of the collective bargaining agreement with the teachers is voted on by both the School Board and the Board of Aldermen. After many contract proposals were agreed to by the teachers and the School Board, only to be defeated by the Board of Alderman, a meeting was held at which both boards were present in their entireties. Rep Casey said the situation should be covered by the current language. Concern was expressed by several members that legislation should not be enacted to cover one particular problem. Mr. Chapman noted that a charter may always provide more openness than is provided in the Right to Know law. There was some speculation that the issue was created by the terms of the Nashua charter, not the Right to Know law. Mr. Pitts noted that the problem extends to more than just Nashua. Concern was expressed that lay people have a hard time with the distinction between the gatherings for purposes like collective bargaining or consultation with counsel, which are not meetings at all for purposes of the Right to Know law, and which need not be posted, and non-public meetings, which must be posted, but which the public may not attend. There is need for greater clarity on this subject, which may be explained further when the Attorney General’s memo on the subject is next updated.
Rep. Weber will inquire further into the details of the Nashua issue.
The committee then discussed HB 349, on the confidentiality of legislator emails, currently in Legislative Administration. Rep. Weber will let the Commission know when that bill is scheduled for hearing. The House has adopted a Rules change to make it clear that the record on each individual bill will not contain emails sent to individual legislators. Paper copies of filings are now required. Nothing prohibits members from printing out paper copies of emails sent to them an asking that they become a part of the record.
Mr. Kennedy outlined the case in which he represented Speaker Norelli and Rep. McLeod when copies of emails sent to them individually were sought. In that case, he argued, and the court agreed, that they were individuals, and not a public body, and that they were not subject to the Right to Know Law. Mr. Folta said he had wrestled with this issue and that he had created a disclaimer which he includes at the bottom of his communications. He provided the members with copies. His purpose is to raise awareness. Mr. Kennedy said that the mailing of an email, even to all members of a public body, would not trigger the Right to Know law, as it still would not create a meeting. It is only a serial conversation among a quorum of a body, whether by email or otherwise, that triggers the law. Mr. Folta’s language does not change that.
(Note: The actual language of the change, which was not available at the meeting, is “Only paper copies of letters, statements or other documents delivered by a member or other interested party to the committee chair, vice chair, or committee clerk in hand or by US or commercial mail shall constitute a filing with the committee and made part of the public record.”)
Rep. Garrity summarized the contents of four emails he has received and handed paper printouts of the emails to the clerk for the Commission’s files.
Judith Krahoulic, 1/23/09
Jorge Mesa-Tejada 1/24/09
Kathy 1/24/09
Bill Whalen 1/28/09
Rep. Rick Watrous, prime sponsor of HB 328, proposing a study committee on non-profit corporations receiving most or all of their funding from public sources and performing governmental or semi-governmental functions, gave a presentation on the motivation behind his bill. The issue before the Commission is whether the issues raised by these non-profits is best addressed in a new study committee or by the existing Commission.
Sen. Barnes asked if any of the persons involved in the City of Concord controversy had been voted out of office, or was any outcry made? There was a petition, and some people spoke at the City Council, but not enough get involved. The one person who thought the matter should be investigated was conflicted out and could not.
With respect to whether the issue should best be addressed by the Commission or a study committee, Rep. Weber read the charge to the Commission in RSA 91-A:11, which speaks of electronic communication and the Hawkins decision, and wondered, as a new member of the Commission, whether the mandate was broad enough to include the current issue. Mr. Judge said that under the heading of Duties, RSA91-A:13 (IX) , includes any other matter the Commission deems relevant. LWM said that follows the original charge, and RSA 91-A:13 parts I through VIII, all of which talk about electronic communication. Although that might be a discussion for another time, it has significant bearing on what to do about the issue raised by Mr. Watrous. The issue was raised in the last term in the legislature, and RSA 91-A:1-e was added as a result, but it covers only a very narrow set of circumstances. It is too narrow to include the City of Concord.
Mr. Kennedy said that Judge Conboy’s opinion in Rep. Watrous’ case against the City of Concord followed the test set out in the Firefighters Case. In Fairbanks, the court looked at five factors to determine if a non-profit entity was subject to the Right to Know law. In the case against the City of Concord, only one factor was found. The case against the City of Concord was the subject of an unsuccessful Motion to Reconsider, but was not appealed for review by the NH Supreme Court.
Mr. Judge said there was a long history with Concord and CCTV. Is this an unusual setup for a community TV station? In Manchester, the city and educational channels are done through the city, and are subject to the Right to Know law. There is a separate public channel, presumably not subject to the Right to Know. Some towns have no public access channel an all the cable money goes to the general fund. Ms Osborne said the function of CCTV was not for the government but for the citizens. Many groups do shows on a purely volunteer basis. Citizens may have their own shows at any time. Mr. Pitts said that the Lakes region has a fourteen town consortium.
Rep Watrous said his goal is to come out with a clear definition so the public will know what organizations are covered.
Mr. Folte said there is an analogous situation in Claremont re public/private funding for economic development. A corporation has been established to establish a new Claremont Community Center, the city and the school are involved, and the city has given $1,000,000 to get the project started. Citizens may be asked for a $3,000,000 bond issue, but citizens cannot get the records because the corporation is private. This is a very political issue, and it might require more law.
The next meeting will be held on March 20th, 2009, at 10:00 a.m.
The meeting was adjourned at 12:03 pm.
Respectfully submitted,
Lucy Weber
6 February 2009
Draft minutes to be considered for approval 20 March 2009.
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; Rep. Jessie Osborne, Rep. Kim Casey, Rep. Lucy Weber; Jim Kennedy, Esq., AG’s Office; Ron Rodgers, Esq., public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; James Pitts, NHMA;
Also Present: Bernard W. Folta; William L. Chapman, Orr & Reno, P.A; Rebekah Becker, NH Banking Department; Rep. Rick Watrous
The meeting was called to order at 10:09 am. The Association of Counties is meeting today, so Carol Holden and Tom Reid will not be present.
Filling of Vacancies: Rep. Casey has contacted the NH Association of School Boards to ask that they appoint a representative. Rep. Garrity has contacted the NH Association of School Administrators, and they will enquire about Dennis Pope. Kevin Shea, the telecommunications representative, is now with Fairpoint. Rep. Garrity spoke to him and he said that his duties will not allow him to attend regularly. He said his assistant would be a good addition, and will be able to attend meetings in the future. Peter Croteau, the IT member, had thought that his membership on the Commission was tied to his former job description, but it his expertise that is the qualifier, Rep. Garrity will contact him regarding his continued willingness to serve.
Minutes: The minutes of the 16 January meeting were amended to substitute Tom Reid’s name for that of Jim Reams, and with that amendment were unanimously approved. Rep. Garrity has set up a blog for the Commission at http://nhsunshine.blogspot.com/ . The minutes will be posted there, and he will discuss a link from the Legislature’s official web site with Information Services.
Reduction of Quorum: Sen. Barnes has gone to the Senate Rules Committee and gotten a waiver, allowing him to file a bill reducing the quorum requirement to seven. The bill is now in Legislative Services and can be signed on.
Status of House Bills: Rep. Weber reported on the status of bills currently in Judiciary or Legislative Administration. Judiciary has held hearings on the following bills:
HB 89, regarding an exception to the law for records involving suicides
HB 206, the Commission bill regarding retention of records beyond the required date
HB 425, the Commission bill on remedies proposing fines on individual officeholders
HB 135, the bill requiring invalidation of all decisions taken in violation of the law
HB 266, the exception for certain voter records
HB 53, the Commission revision on the definition of public body
HB 379, the collective bargaining revision when two boards are involved.
Hearings have been held on all these bills. A subcommittee has been named for HB 425, and HB 379, and Rep. Weber assumes that several of the other bills, for example, HB 135, will come to that subcommittee as well. She will let the Commission members know when subcommittee work sessions or full committee executive sessions are scheduled.
With respect to HB 379, collective bargaining when two boards are involved, Rep. Smith asked why that would not be covered by the collective bargaining provision already in the statute. Rep. Weber stated this bill was requested by the City of Nashua, where it became a problem. There, the financial provisions of the collective bargaining agreement with the teachers is voted on by both the School Board and the Board of Aldermen. After many contract proposals were agreed to by the teachers and the School Board, only to be defeated by the Board of Alderman, a meeting was held at which both boards were present in their entireties. Rep Casey said the situation should be covered by the current language. Concern was expressed by several members that legislation should not be enacted to cover one particular problem. Mr. Chapman noted that a charter may always provide more openness than is provided in the Right to Know law. There was some speculation that the issue was created by the terms of the Nashua charter, not the Right to Know law. Mr. Pitts noted that the problem extends to more than just Nashua. Concern was expressed that lay people have a hard time with the distinction between the gatherings for purposes like collective bargaining or consultation with counsel, which are not meetings at all for purposes of the Right to Know law, and which need not be posted, and non-public meetings, which must be posted, but which the public may not attend. There is need for greater clarity on this subject, which may be explained further when the Attorney General’s memo on the subject is next updated.
Rep. Weber will inquire further into the details of the Nashua issue.
The committee then discussed HB 349, on the confidentiality of legislator emails, currently in Legislative Administration. Rep. Weber will let the Commission know when that bill is scheduled for hearing. The House has adopted a Rules change to make it clear that the record on each individual bill will not contain emails sent to individual legislators. Paper copies of filings are now required. Nothing prohibits members from printing out paper copies of emails sent to them an asking that they become a part of the record.
Mr. Kennedy outlined the case in which he represented Speaker Norelli and Rep. McLeod when copies of emails sent to them individually were sought. In that case, he argued, and the court agreed, that they were individuals, and not a public body, and that they were not subject to the Right to Know Law. Mr. Folta said he had wrestled with this issue and that he had created a disclaimer which he includes at the bottom of his communications. He provided the members with copies. His purpose is to raise awareness. Mr. Kennedy said that the mailing of an email, even to all members of a public body, would not trigger the Right to Know law, as it still would not create a meeting. It is only a serial conversation among a quorum of a body, whether by email or otherwise, that triggers the law. Mr. Folta’s language does not change that.
(Note: The actual language of the change, which was not available at the meeting, is “Only paper copies of letters, statements or other documents delivered by a member or other interested party to the committee chair, vice chair, or committee clerk in hand or by US or commercial mail shall constitute a filing with the committee and made part of the public record.”)
Rep. Garrity summarized the contents of four emails he has received and handed paper printouts of the emails to the clerk for the Commission’s files.
Judith Krahoulic, 1/23/09
Jorge Mesa-Tejada 1/24/09
Kathy 1/24/09
Bill Whalen 1/28/09
Rep. Rick Watrous, prime sponsor of HB 328, proposing a study committee on non-profit corporations receiving most or all of their funding from public sources and performing governmental or semi-governmental functions, gave a presentation on the motivation behind his bill. The issue before the Commission is whether the issues raised by these non-profits is best addressed in a new study committee or by the existing Commission.
Sen. Barnes asked if any of the persons involved in the City of Concord controversy had been voted out of office, or was any outcry made? There was a petition, and some people spoke at the City Council, but not enough get involved. The one person who thought the matter should be investigated was conflicted out and could not.
With respect to whether the issue should best be addressed by the Commission or a study committee, Rep. Weber read the charge to the Commission in RSA 91-A:11, which speaks of electronic communication and the Hawkins decision, and wondered, as a new member of the Commission, whether the mandate was broad enough to include the current issue. Mr. Judge said that under the heading of Duties, RSA91-A:13 (IX) , includes any other matter the Commission deems relevant. LWM said that follows the original charge, and RSA 91-A:13 parts I through VIII, all of which talk about electronic communication. Although that might be a discussion for another time, it has significant bearing on what to do about the issue raised by Mr. Watrous. The issue was raised in the last term in the legislature, and RSA 91-A:1-e was added as a result, but it covers only a very narrow set of circumstances. It is too narrow to include the City of Concord.
Mr. Kennedy said that Judge Conboy’s opinion in Rep. Watrous’ case against the City of Concord followed the test set out in the Firefighters Case. In Fairbanks, the court looked at five factors to determine if a non-profit entity was subject to the Right to Know law. In the case against the City of Concord, only one factor was found. The case against the City of Concord was the subject of an unsuccessful Motion to Reconsider, but was not appealed for review by the NH Supreme Court.
Mr. Judge said there was a long history with Concord and CCTV. Is this an unusual setup for a community TV station? In Manchester, the city and educational channels are done through the city, and are subject to the Right to Know law. There is a separate public channel, presumably not subject to the Right to Know. Some towns have no public access channel an all the cable money goes to the general fund. Ms Osborne said the function of CCTV was not for the government but for the citizens. Many groups do shows on a purely volunteer basis. Citizens may have their own shows at any time. Mr. Pitts said that the Lakes region has a fourteen town consortium.
Rep Watrous said his goal is to come out with a clear definition so the public will know what organizations are covered.
Mr. Folte said there is an analogous situation in Claremont re public/private funding for economic development. A corporation has been established to establish a new Claremont Community Center, the city and the school are involved, and the city has given $1,000,000 to get the project started. Citizens may be asked for a $3,000,000 bond issue, but citizens cannot get the records because the corporation is private. This is a very political issue, and it might require more law.
The next meeting will be held on March 20th, 2009, at 10:00 a.m.
The meeting was adjourned at 12:03 pm.
Respectfully submitted,
Lucy Weber
Thursday, January 22, 2009
Approved Minutes Right to Know Commission Meeting - Friday Jan. 16, 2009
Right to Know Law Oversight Commission
Minutes, 16 January 2009
As Approved 6 February 2009
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; Rep. Lucy Weber; Jim Kennedy, Esq., AG’s Office; Ron Rodgers, Esq, public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; James Pitts, NHMA; Carol Holden, NHAC
Also Present: Bernard W. Folta; Neil Rowland; Brian Shea, Intern, DoJ: Frank Catanese, DoIT; William L. Chapman, Orr & Reno, P.A.; Rebekah Becker, NH Banking Department
The meeting was called to order at 10:15 am, a quorum having been achieved. Sitting members were introduced. The first order of business was election of officers. Rep. Garrity was nominated for Chair, and Mr. Lassey was nominated for Vice-Chair. There being no other nominations, the nominations were closed and the clerk pro tem was instructed by unanimous vote of the members present to cast one ballot for Rep. Garrity as Chair and Mr. Lassey as Vice-Chair. Rep. Weber was nominated as Clerk, and was so voted unanimously by the members then present. Rep. Garrity stated that Reps. Osborne and Casey had communicated their inability to be present due to important business elsewhere.
Filling of Vacancies: The current Commission members are:
Four House members: Reps. Garrity, Osborne, Casey, and Weber
Three Senate members: Sens. Barnes, deVries, and Cilley
Three Municipal Association members: John Lassey, Esq., Peter Smith, Esq. , James Pitts
One School Boards Association member: vacant
One School Administrators member: vacant
Two County officials: Carol Holden, Jim Reams
Correction: County officials are: Carol Holden, Tom Reid
Four Public members:
One at-large: Ronald Rogers
One attorney: Steven Judge, Esq.
One IT professional: vacant
One telecommunications professional: Kevin Shea
One AG’s office representative; Jim Kennedy, Esq.
Rep. Weber reported that Rep. Casey is contacting the School Boards Association for a replacement member. Rep. Garrity will determine if Mr. Shea is continuing in light of the Verizon-Fairpoint transfer, and will contact the Governor’s office and the School Administrators group about filling the vacancies.
2008 Annual Report: Mr. Lassey reviewed the Annual report for the Commission. The major activity was the enactment of HB 1408 last year after five years of effort. Education efforts are underway to inform local officials and members of the Bar about the new enactments. A Continuing Legal Education presentation was given last October for Bar members, which was well-received by municipal and county officials and attorneys who deal with Right to Know issues. The Bar Association has been given a DVD of the event and one will be given to the Local Government Center so copies can be made and distributed for local officials. Mr. Lassey will follow up with Cordell Johnston to make sure that has gone out.
This year, the Commission will focus on sanctions and penalties issues. An LSR has been submitted as LSR 520-L, but it does not have a bill number yet. The bill provides for civil penalties for violations, and creates a fund, administered by the Attorney General’s Office to be used for education on Right to Know issues. It would permit a judge to order remedial training for a local official violating the law.
In addition, some housekeeping bills were introduced. A list of those bills and some introduced by individuals was circulated. (Copy kept by Rep. Garrity for file.)
Currently Proposed Legislation: Mr. Lassey provided this overview:
HB 0699R—submitted by Rep. Cote, addresses exemptions for collective bargaining. There is already an exception for collective bargaining under the current law. The language proposed has not yet been reviewed to evaluate changes.
HB 135—This bill requires a judge to invalidate any action taken at a meeting in violation of the right to Know law. Mr. Lassey said this is a major change and there ought to be thought given to where proposed legislation is sent. Rep. Weber said that any member of the House has the right to introduce legislation on any subject, and once introduced, there is a very tight time window and very limited options about what the House can do with the proposed legislation. Other than deciding to retain a bill in the first year of the session, there is no procedure by which to lateral the bill to the Commission. Sen. Barnes suggested particiation in the subcommittee process.
HB 89 would create an exception for information about suicides. The bill is a product of the difficult balancing act between the public’s right to know, and the individual’s right to privacy.
HB 206 is a housekeeping bill concerning the retentions of records kept in electronic form. The bill affirms that electronic records are not required to be maintained after a certain time, but if they are, in fact, retained past that time period, they are subject to the same disclosure requirements as current records. No records still in existence may be deleted once they have been requested by a member of he public, even thought the time for retaining the records has expired. This bill is supported by the Commission. The Commission’s position is that this is not intended to be a substantive change, but to clarify a part of the statute that might otherwise be open to misinterpretation. The intent is to prevent an official from acting in bad faith and destroying a record that is still in existence after the date by which it might have been deleted after that record has been requested by a member of the public.
HB 53 is another housekeeping bill which was suggested by the Municipal Association to eliminate technical glitches caused by the definitions section of HB 1408. It turns on the differentiation between public bodies and public agencies.
Public bodies may only act as a group. No individual can act alone. The body may only deliberate and act if a quorum is present. Their meetings must be open to the public unless an exception applies, and they are subject to the notice provisions of the Right to Know law. Public agencies, like police departments, are ones in which one person has the overall authority for decision making, even though he or she may chose to appoint committees to help with the process. The public meeting provisions of the Right to Know Law do not apply to agency decisions, but the record-keeping and access to records provisions apply to both public bodies and public agencies.
In HB 1408, the words “agency’ and “authority” were used in the public body provision, and need to be removed. They should remain in the section having to do with public agencies. Rep. Garrity noted that many of those who attended the public hearing on HB 53 in the Judiciary Committee on Jan. 14 were very concerned about removal of this language. Many felt that removal of the language was intended to remove the Local Government Center from the reach of the law. Mr. Kennedy said that persons were confusing the meetings requirements with the records requirements. The court case handed down yesterday with respect to the LGC was about records, not meetings. Mr. Smith said the fact of the decision coming out was separate entirely from the proposed legislation. Mr. Kennedy said that the recent LGC case followed the prior Health Trust case analysis, because LGC is so intertwined with local government that it falls under the previous case.
It was stated that the Municipal Association will act as if it is covered by 91_A until it is told it isn’t. The LGC case is still subject to appeal.
HB 328 deals with not-for –profit corporations. Some people at the hearing on Wednesday were concerned that HB 53 was a back-door way to exempt municipal non-for-profit corporations, and proposes a committee. Mr. Smith said this was a classic example of waste of human resources. Rep. Weber said Commission members might express that concern at the public hearing. Mr. Garrity said that if there is fear that an end run is being made, the Commission should look into it. Ms. Weber said a bill passed last year making not-for-profit corporations with 100% government funding and with public officials as sole directors subject to the provisions of the right to Know law.
HB 266 proposes an exemption for voter records, but the text of the bill is unknown.
HB 210 When the time for making minutes available to the public changed to five business days, no one thought of making land use boards conform.
HB 349 would make emails of legislators confidential and privileged, and therefore not discoverable. Mr. Smith said this is a giant issue with many ramifications, among them the Hughes case holding regarding the legislature’s relationship with the Right to Know law. The bill as submitted also has issues for the court with respect to court orders and legislator email.
Mr. Kennedy said he had recently represented Speaker Norelli and Rep. McLeod with respect to legislative and private emails. The defense was that emails between two legislators were not emails of a public body or agency and that they were not, therefore, subject to the law. The appeal period has not yet run on this case.
Quorum: Mr. Lassey said Sen. Barnes had raised the issue of lowering the quorum requirement to five. Mr. Smith suggested the quorum be lowered to seven. Rep. Garrity said that nine was already less than a majority of the nine members. Mr. Smith suggested a new administrative system. Rep. Garrity will contact members who are not attending and ask them if they want to continue to serve. It was noted that people might come more often if the perception was that the Commission was more productive and efficient. Mr. Pitt stated that he had arrived at the parking garage ten minutes before the meeting, but as it is not open to the public, he was unreasonably delayed by searching for another parking spot. Mr. Smith moved that the Rules Committee be asked for permission to introduce legislation to reduce the quorum requirement to seven. Mr. Lassey seconded the motion. Mr. Kennedy abstained from voting; all others voted in favor.
Further Discussion on HB 135: Rep. Garrity read the text of the proposed bill, which requires that if a judge finds a violation of the Right to Know law, action taken in violation must be invalidated. Rep. Weber reported on the discussion at the public hearing in Judiciary. The sponsors are concerned that as the law is now, a judge has discretion to decide whether to invalidate the action or not. There are currently no explicit standards in the law to guide a judge’s decision whether to invalidate or not. The perceived result is that the worst violations of the law are the least likely to be invalidated by the courts, because the consequences of invalidation would be so onerous. By giving the law real teeth, those in charge of noticing meetings will have to pay more attention to getting it right. Proponents argue the statute is clear and easy to comply with. It is currently too easy for officials acting in bad faith to simply ignore the requirements of the law, knowing that there will likely be minimal , if any consequences.
Opponents of the proposal argue that the bill is not easy to comply with, and there are many opportunities for small mistakes to have enormous consequences, as when notice is posted more than 23 but less than 24 hours before a meeting, or a room number for a meeting is misprinted in a paper. At the local level, those in charge of implementing the law often have good intentions but little training in the technicalities of the law. They argue that it is bad policy for taxpayers to have the potential liability for hundreds, thousands, or even millions of dollars of potential costs if a judge is required to invalidate the decision. They argue a change in the law would make it too easy for an official acting in bad faith to plant some small defect in the notice given, and reveal it only later, with the result that one person of bad faith could invalidate an action already voted on by a majority of the voters concerned. Similarly, a member of the public aggrieved by the actions of the majority could overturn a decision taken by majority vote after much publicity, solely because of a missed technical error in the technical notice requirements.
A number of suggestions were made at the public hearing to find a middle ground between these positions.
Mr. Judge argued that the civil penalties bill proposed by the Commission should be enacted as a first measure, and that enacting HB 135 would be premature. His concern is that the potential consequences of invalidation might lead judges to make an initial finding of no violation, so the bill may have the opposite effect to that intended. Small, technical violations would be a real issue. Mr. Kennedy pointed out that under the electronic communications provision of the law enacted last year, a person attending a meeting by conference call must disclose the names of all persons in the same room, and lack of disclosure would be a violation of the law. This would present grounds for mischief on the part of one unruly board member and would again lead to the bad faith of one person invalidating the democratic process. Many boards rely on staffers to deal with notice provisions, and one disgruntled employee or newspaper staffer in the classifieds department could circumvent the process intentionally. The proposed bill gives the power to one individual to undo a democratic vote.
Mr. Smith expresses concern about the removal of judicial discretion. A judge should have the discretion to weigh the extent of the violation against the purpose of the law. Sen. Barnes observed that towns are going through their budget process right now, and the citizens have spoken. The remedy for violation is to vote the offending officials out of office. Mr. Lassey said that when he was serving in Germany, the expression they had was “Machts nicht.” The judges ought to be able to fix a violation that does not matter. Rep. Weber will let the Commission know when HB 135 is scheduled for subcommittee work, and will convey the concerns of the Commission to the subcommittee.
Audience member Bernie Folta presented a list of six points, as follows:
1) He is annoyed there is no press/media person on the Commission. Rep. Garrity explained they had debated it and reached out to the press, but the press often do not even show up at the meetings. Also, members of the press said they could not be on the Commission and be objective critics. However, he noted that HB 1408 was successful because the press became involved early.
2) The current LGC newsletter strongly opposes HB 135.
3) Some of the bills discussed involve the underlying issue of public interest versus privacy protection. When is the public interest greater than the need to protect privacy?
4) What should or should not be done without a quorum? It is a frequent issue out in the field, as it is for this Commission. Some bodies just discuss the issues so the do not waste time. At a non-quorum meeting, minutes are not required, but are sometimes taken. Is tape-recording the non-quorum meeting without explicit permission from each person in the room an issue/It would be useful to provide uniform guidance as to do without a quorum. Perhaps matters should not be discussed. (Note—at this point the membership dropped below a quorum.)
5) The Commission expires in 2010, which is the second year of the biennium. Reauthorization would need to be filed this coming fall.
6) There is a Senate LSR 316 which may say want to do when a quorum is not declared. Keep an eye out for that.
Neal Roland, of Fremont, commented about retaining emails. The emails can be retained on the server, so how would that burden the representatives? All emails should be retained. Rep. Weber said her understanding is that 98% of emails coming to the legislative server are spam and are deleted without the legislators ever seeing them. Storage of emails will incur significant costs. Sen. Barnes said that he was willing for anyone to see his emails, except what about the constituent who wants to talk to a legislator about a personal matter in an email? Do they want to see their private matter in the newspaper? Mr. Forcier said if they were contacting about an official matter, they would not expect privacy. If the contact is not official and through the official web site, it is a private matter.
Frank Catanese of the Department of Information Technology said his department is required to process and retain infrastructure information, containing technical specifications for state information systems. While the substantive material contained in the state information systems should be available to the public, disclosure of these technical specifications would put as risk the security of the systems. The closest guidance on point has to do with Homeland Security. He is not looking to withhold any of the actual document information, but would like to be able to redact the security information. It was suggested he contact Mr. Kennedy at the AG’s office for advice.
Brian Shea, intern with Mr. Kennedy at the Department of Justice, was introduced and said it was a sad day when we don’t trust government.
Mr Folta expressed concern when we cast the cost of the law in financial terms, because 91-A is based on Article 8 of the Constitution, and the costs should be absorbed as part of the government’s business.
The next meeting will be held on Friday, Feb. 6th at 10:00 am. Meeting adjourned at 12:10 pm.
Respectfully submitted,
Lucy Weber
Minutes, 16 January 2009
As Approved 6 February 2009
Present: Sen. John H. Barnes, Jr.; Rep. James Garrity; Rep. Lucy Weber; Jim Kennedy, Esq., AG’s Office; Ron Rodgers, Esq, public member; Steve Judge, Esq., public member, John Lassey, Esq., NHMA; Peter Smith, Esq., NHMA; James Pitts, NHMA; Carol Holden, NHAC
Also Present: Bernard W. Folta; Neil Rowland; Brian Shea, Intern, DoJ: Frank Catanese, DoIT; William L. Chapman, Orr & Reno, P.A.; Rebekah Becker, NH Banking Department
The meeting was called to order at 10:15 am, a quorum having been achieved. Sitting members were introduced. The first order of business was election of officers. Rep. Garrity was nominated for Chair, and Mr. Lassey was nominated for Vice-Chair. There being no other nominations, the nominations were closed and the clerk pro tem was instructed by unanimous vote of the members present to cast one ballot for Rep. Garrity as Chair and Mr. Lassey as Vice-Chair. Rep. Weber was nominated as Clerk, and was so voted unanimously by the members then present. Rep. Garrity stated that Reps. Osborne and Casey had communicated their inability to be present due to important business elsewhere.
Filling of Vacancies: The current Commission members are:
Four House members: Reps. Garrity, Osborne, Casey, and Weber
Three Senate members: Sens. Barnes, deVries, and Cilley
Three Municipal Association members: John Lassey, Esq., Peter Smith, Esq. , James Pitts
One School Boards Association member: vacant
One School Administrators member: vacant
Two County officials: Carol Holden, Jim Reams
Correction: County officials are: Carol Holden, Tom Reid
Four Public members:
One at-large: Ronald Rogers
One attorney: Steven Judge, Esq.
One IT professional: vacant
One telecommunications professional: Kevin Shea
One AG’s office representative; Jim Kennedy, Esq.
Rep. Weber reported that Rep. Casey is contacting the School Boards Association for a replacement member. Rep. Garrity will determine if Mr. Shea is continuing in light of the Verizon-Fairpoint transfer, and will contact the Governor’s office and the School Administrators group about filling the vacancies.
2008 Annual Report: Mr. Lassey reviewed the Annual report for the Commission. The major activity was the enactment of HB 1408 last year after five years of effort. Education efforts are underway to inform local officials and members of the Bar about the new enactments. A Continuing Legal Education presentation was given last October for Bar members, which was well-received by municipal and county officials and attorneys who deal with Right to Know issues. The Bar Association has been given a DVD of the event and one will be given to the Local Government Center so copies can be made and distributed for local officials. Mr. Lassey will follow up with Cordell Johnston to make sure that has gone out.
This year, the Commission will focus on sanctions and penalties issues. An LSR has been submitted as LSR 520-L, but it does not have a bill number yet. The bill provides for civil penalties for violations, and creates a fund, administered by the Attorney General’s Office to be used for education on Right to Know issues. It would permit a judge to order remedial training for a local official violating the law.
In addition, some housekeeping bills were introduced. A list of those bills and some introduced by individuals was circulated. (Copy kept by Rep. Garrity for file.)
Currently Proposed Legislation: Mr. Lassey provided this overview:
HB 0699R—submitted by Rep. Cote, addresses exemptions for collective bargaining. There is already an exception for collective bargaining under the current law. The language proposed has not yet been reviewed to evaluate changes.
HB 135—This bill requires a judge to invalidate any action taken at a meeting in violation of the right to Know law. Mr. Lassey said this is a major change and there ought to be thought given to where proposed legislation is sent. Rep. Weber said that any member of the House has the right to introduce legislation on any subject, and once introduced, there is a very tight time window and very limited options about what the House can do with the proposed legislation. Other than deciding to retain a bill in the first year of the session, there is no procedure by which to lateral the bill to the Commission. Sen. Barnes suggested particiation in the subcommittee process.
HB 89 would create an exception for information about suicides. The bill is a product of the difficult balancing act between the public’s right to know, and the individual’s right to privacy.
HB 206 is a housekeeping bill concerning the retentions of records kept in electronic form. The bill affirms that electronic records are not required to be maintained after a certain time, but if they are, in fact, retained past that time period, they are subject to the same disclosure requirements as current records. No records still in existence may be deleted once they have been requested by a member of he public, even thought the time for retaining the records has expired. This bill is supported by the Commission. The Commission’s position is that this is not intended to be a substantive change, but to clarify a part of the statute that might otherwise be open to misinterpretation. The intent is to prevent an official from acting in bad faith and destroying a record that is still in existence after the date by which it might have been deleted after that record has been requested by a member of the public.
HB 53 is another housekeeping bill which was suggested by the Municipal Association to eliminate technical glitches caused by the definitions section of HB 1408. It turns on the differentiation between public bodies and public agencies.
Public bodies may only act as a group. No individual can act alone. The body may only deliberate and act if a quorum is present. Their meetings must be open to the public unless an exception applies, and they are subject to the notice provisions of the Right to Know law. Public agencies, like police departments, are ones in which one person has the overall authority for decision making, even though he or she may chose to appoint committees to help with the process. The public meeting provisions of the Right to Know Law do not apply to agency decisions, but the record-keeping and access to records provisions apply to both public bodies and public agencies.
In HB 1408, the words “agency’ and “authority” were used in the public body provision, and need to be removed. They should remain in the section having to do with public agencies. Rep. Garrity noted that many of those who attended the public hearing on HB 53 in the Judiciary Committee on Jan. 14 were very concerned about removal of this language. Many felt that removal of the language was intended to remove the Local Government Center from the reach of the law. Mr. Kennedy said that persons were confusing the meetings requirements with the records requirements. The court case handed down yesterday with respect to the LGC was about records, not meetings. Mr. Smith said the fact of the decision coming out was separate entirely from the proposed legislation. Mr. Kennedy said that the recent LGC case followed the prior Health Trust case analysis, because LGC is so intertwined with local government that it falls under the previous case.
It was stated that the Municipal Association will act as if it is covered by 91_A until it is told it isn’t. The LGC case is still subject to appeal.
HB 328 deals with not-for –profit corporations. Some people at the hearing on Wednesday were concerned that HB 53 was a back-door way to exempt municipal non-for-profit corporations, and proposes a committee. Mr. Smith said this was a classic example of waste of human resources. Rep. Weber said Commission members might express that concern at the public hearing. Mr. Garrity said that if there is fear that an end run is being made, the Commission should look into it. Ms. Weber said a bill passed last year making not-for-profit corporations with 100% government funding and with public officials as sole directors subject to the provisions of the right to Know law.
HB 266 proposes an exemption for voter records, but the text of the bill is unknown.
HB 210 When the time for making minutes available to the public changed to five business days, no one thought of making land use boards conform.
HB 349 would make emails of legislators confidential and privileged, and therefore not discoverable. Mr. Smith said this is a giant issue with many ramifications, among them the Hughes case holding regarding the legislature’s relationship with the Right to Know law. The bill as submitted also has issues for the court with respect to court orders and legislator email.
Mr. Kennedy said he had recently represented Speaker Norelli and Rep. McLeod with respect to legislative and private emails. The defense was that emails between two legislators were not emails of a public body or agency and that they were not, therefore, subject to the law. The appeal period has not yet run on this case.
Quorum: Mr. Lassey said Sen. Barnes had raised the issue of lowering the quorum requirement to five. Mr. Smith suggested the quorum be lowered to seven. Rep. Garrity said that nine was already less than a majority of the nine members. Mr. Smith suggested a new administrative system. Rep. Garrity will contact members who are not attending and ask them if they want to continue to serve. It was noted that people might come more often if the perception was that the Commission was more productive and efficient. Mr. Pitt stated that he had arrived at the parking garage ten minutes before the meeting, but as it is not open to the public, he was unreasonably delayed by searching for another parking spot. Mr. Smith moved that the Rules Committee be asked for permission to introduce legislation to reduce the quorum requirement to seven. Mr. Lassey seconded the motion. Mr. Kennedy abstained from voting; all others voted in favor.
Further Discussion on HB 135: Rep. Garrity read the text of the proposed bill, which requires that if a judge finds a violation of the Right to Know law, action taken in violation must be invalidated. Rep. Weber reported on the discussion at the public hearing in Judiciary. The sponsors are concerned that as the law is now, a judge has discretion to decide whether to invalidate the action or not. There are currently no explicit standards in the law to guide a judge’s decision whether to invalidate or not. The perceived result is that the worst violations of the law are the least likely to be invalidated by the courts, because the consequences of invalidation would be so onerous. By giving the law real teeth, those in charge of noticing meetings will have to pay more attention to getting it right. Proponents argue the statute is clear and easy to comply with. It is currently too easy for officials acting in bad faith to simply ignore the requirements of the law, knowing that there will likely be minimal , if any consequences.
Opponents of the proposal argue that the bill is not easy to comply with, and there are many opportunities for small mistakes to have enormous consequences, as when notice is posted more than 23 but less than 24 hours before a meeting, or a room number for a meeting is misprinted in a paper. At the local level, those in charge of implementing the law often have good intentions but little training in the technicalities of the law. They argue that it is bad policy for taxpayers to have the potential liability for hundreds, thousands, or even millions of dollars of potential costs if a judge is required to invalidate the decision. They argue a change in the law would make it too easy for an official acting in bad faith to plant some small defect in the notice given, and reveal it only later, with the result that one person of bad faith could invalidate an action already voted on by a majority of the voters concerned. Similarly, a member of the public aggrieved by the actions of the majority could overturn a decision taken by majority vote after much publicity, solely because of a missed technical error in the technical notice requirements.
A number of suggestions were made at the public hearing to find a middle ground between these positions.
Mr. Judge argued that the civil penalties bill proposed by the Commission should be enacted as a first measure, and that enacting HB 135 would be premature. His concern is that the potential consequences of invalidation might lead judges to make an initial finding of no violation, so the bill may have the opposite effect to that intended. Small, technical violations would be a real issue. Mr. Kennedy pointed out that under the electronic communications provision of the law enacted last year, a person attending a meeting by conference call must disclose the names of all persons in the same room, and lack of disclosure would be a violation of the law. This would present grounds for mischief on the part of one unruly board member and would again lead to the bad faith of one person invalidating the democratic process. Many boards rely on staffers to deal with notice provisions, and one disgruntled employee or newspaper staffer in the classifieds department could circumvent the process intentionally. The proposed bill gives the power to one individual to undo a democratic vote.
Mr. Smith expresses concern about the removal of judicial discretion. A judge should have the discretion to weigh the extent of the violation against the purpose of the law. Sen. Barnes observed that towns are going through their budget process right now, and the citizens have spoken. The remedy for violation is to vote the offending officials out of office. Mr. Lassey said that when he was serving in Germany, the expression they had was “Machts nicht.” The judges ought to be able to fix a violation that does not matter. Rep. Weber will let the Commission know when HB 135 is scheduled for subcommittee work, and will convey the concerns of the Commission to the subcommittee.
Audience member Bernie Folta presented a list of six points, as follows:
1) He is annoyed there is no press/media person on the Commission. Rep. Garrity explained they had debated it and reached out to the press, but the press often do not even show up at the meetings. Also, members of the press said they could not be on the Commission and be objective critics. However, he noted that HB 1408 was successful because the press became involved early.
2) The current LGC newsletter strongly opposes HB 135.
3) Some of the bills discussed involve the underlying issue of public interest versus privacy protection. When is the public interest greater than the need to protect privacy?
4) What should or should not be done without a quorum? It is a frequent issue out in the field, as it is for this Commission. Some bodies just discuss the issues so the do not waste time. At a non-quorum meeting, minutes are not required, but are sometimes taken. Is tape-recording the non-quorum meeting without explicit permission from each person in the room an issue/It would be useful to provide uniform guidance as to do without a quorum. Perhaps matters should not be discussed. (Note—at this point the membership dropped below a quorum.)
5) The Commission expires in 2010, which is the second year of the biennium. Reauthorization would need to be filed this coming fall.
6) There is a Senate LSR 316 which may say want to do when a quorum is not declared. Keep an eye out for that.
Neal Roland, of Fremont, commented about retaining emails. The emails can be retained on the server, so how would that burden the representatives? All emails should be retained. Rep. Weber said her understanding is that 98% of emails coming to the legislative server are spam and are deleted without the legislators ever seeing them. Storage of emails will incur significant costs. Sen. Barnes said that he was willing for anyone to see his emails, except what about the constituent who wants to talk to a legislator about a personal matter in an email? Do they want to see their private matter in the newspaper? Mr. Forcier said if they were contacting about an official matter, they would not expect privacy. If the contact is not official and through the official web site, it is a private matter.
Frank Catanese of the Department of Information Technology said his department is required to process and retain infrastructure information, containing technical specifications for state information systems. While the substantive material contained in the state information systems should be available to the public, disclosure of these technical specifications would put as risk the security of the systems. The closest guidance on point has to do with Homeland Security. He is not looking to withhold any of the actual document information, but would like to be able to redact the security information. It was suggested he contact Mr. Kennedy at the AG’s office for advice.
Brian Shea, intern with Mr. Kennedy at the Department of Justice, was introduced and said it was a sad day when we don’t trust government.
Mr Folta expressed concern when we cast the cost of the law in financial terms, because 91-A is based on Article 8 of the Constitution, and the costs should be absorbed as part of the government’s business.
The next meeting will be held on Friday, Feb. 6th at 10:00 am. Meeting adjourned at 12:10 pm.
Respectfully submitted,
Lucy Weber
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