Friday April 6, 2007

Right To Know Oversight Commission

10:00 a.m.

Room 304, Legislative Office Building

Regular Meeting

LEGISLATIVE UPDATE

HB377

The proposed amendment by the House Judiciary failed in the full House and the bill as originally drafted passed.

Bill Summary:

The following analysis is generated from the perspective of the degree to which HB377 could shield documents from disclosure. This is the perspective from which a public body will interpret the law if they want to shield a governmental record from disclosure.

1. The bill indicates that all meetings among the members of the quorum of a public body shall be open to the public. However, another provision indicates that it would not be a violation of the law to do exactly what is prohibited, if that was not the intent in meeting and if no decisions are made. The bill effectively gives the green light to conduct public business behind closed doors by indicating that if public business is conducted outside of a public meeting it must be disclosed at the next public meeting.

It is an interesting approach to pass a law that sets forth legal boundaries for compliance, but then says we are not going to measure compliance by whether or not you stayed within the bounds, but rather by whether you intended to stay within the bounds. Imagine how ineffective a speed limit law would be if it said it is against the law to speed, but we are not going to measure compliance by whether or not you were speeding, but by whether you intended to speed when you left the garage in the morning.

“… all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public.”

“A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.”

“Any communications, in whatever form, outside a meeting among the members of a quorum of the membership of a public body which bear upon matters over which such body has supervision, control, jurisdiction, or advisory power shall be disclosed at the next meeting of the body before any decision may be made...”

2. The bill further allows the conduct of public business behind closed doors by indicating that a meeting does not include the circulation of draft documents for the purpose of finalizing documents which formalize a decision previously made in a meeting. The intent of circulating draft documents is to obtain comments, make revisions and concur on the revisions. This dramatically broadens the legal basis allowing public bodies to conduct public business outside the eye of the public.

“A meeting shall not include ….circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting…”

3. The existing statutes do not link the availability of documents to the public to their retention or archival period. The bill may limit the disclosure of documents to the public by tying the availability of public records to their retention or archival period. This is a subtle but significant shift in the basis upon which records may be withheld from disclosure to the public. This provision in the bill could be interpreted to indicate that even if a public record exists, it is not subject to disclosure after its retention period has expired. The bill may provide a basis for a public body to discard a public record to shield it from disclosure, in response to a right to know request, if its statutory retention period has expired.

“Governmental records created or maintained in electronic form shall remain accessible for the same retention or archival periods as their paper counterparts.”

4. The bill limits the availability of records to the public to those that are “in the possession, custody or control of public bodies.” This is a contradiction to the provision in the existing law which requires that “each body or agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place.”

“Every citizen….has the right to inspect all public records in the possession, custody, or control of such public bodies....”

“…each public body shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place…”

5. The bill allows a public body to refuse to provide information in a specific format that a petitioner may request, even if providing it in that format is of little of no work to the agency and even if a petitioner is willing to pay the actual cost of obtaining the information in the format requested. The compiling of electronic information into a particular format can often be done with little or no work and it is often the only way to make the information useful. If a petitioner is willing to pay for the compiling of information that option should be made available.

“Nothing in this chapter shall be construed to require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency.”

Link to Right to Know Bills Within the Context of RSA 91-A

Andrew Walters

Andrew@RightToKnowNH.org

www.RightToKnowNH.org