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