HB1408

Public Hearing NH Senate Public and Municipal Affairs Committee

9:00 AM

April 22, 2008

Room 101, Legislative Office Building

Concord, New Hampshire

HB1408 is scheduled for a public hearing on April 22, 2008. This bill was generated from the Right to Know Oversight Commission. It is very similar to last years HB377 which failed. HB1408 has already been passed by the House.

The following is a critical review of the bill.

* This bill will allow members of a public body to participate in a meeting by “means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously….”

There are differing opinions on this provision. Some argue that it is a necessity in this age of electronic communication. Others argue that allowing members of a public body to participate without being physically present undermines our democratic process. This provision does nothing to enhance the public’s right to know. Perhaps a provision should be added which requires that the public be provided the same convenience of electronic participation as the members of the public body.

* The bill indicates that “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.”

This effectively condones the meeting of quorum of the members of a public body outside of the public eye where the members can freely discuss public business and arrive at a consensus on issues, so long as no “decisions” are made. This hinges the public’s right to know and participate on the intent of the meeting, rather than the substance of the meeting. A law based on intent rather than substance is completely ineffective and totally unenforceable. The law should simply prohibit the conduct of public business among the members of the quorum of a public body behind closed doors.

* The bill will allow, outside the eye of the public, the “circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting.”

The law should require that members of the public have an opportunity to be included in the circulation of any draft documents, at the time the documents are being circulated, not after they have been finalized.

* The bill indicates that “governmental records created or maintained in electronic form shall remain accessible for the same retention or archival periods as their paper counterparts.”

The addition of this provision is a subtle, but major shift in the public’s ability to gain access to existing governmental records. First, the law does not currently link the availability of a public record to its retention or archival period. If a governmental record exists, it is potentially subject to disclosure. Second, we should not tie the accessibility of an electronic record to the retention or archival period of its paper counterpart without specifically establishing within the right to know law what the retention or archival period for paper documents is. For instance, what is the paper counterpart to an email and what is the retention or archival period for that paper counterpart. If we do not have a clear answer to this question, we should not be linking the accessibility of that email to its paper counterpart. Likewise for other electronic documents.

* The bill adds the provision that “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.”

In many cases, electronic information is only useful if it is correlated in a particular format. With electronic information this correlation can often be done in minutes with little cost. However, this provision eliminates the ability for the public to ask for electronic data to be correlated and presented in a particular format, even if the requester is willing to pay for that correlation. If a requester is willing to pay for the correlation of this data there is no reason that the law should deny it. The recent Pew Center report gave New Hampshire a D in governance in part for our inability to effectively correlate data and use it in prudent decision making. With this provision, this bill proposes to set into law the fundamental mechanism which undermines effective governance.

* HB1408 adds the words “but not limited to” to RSA 91-A:5, VIII, which exempts from disclosure notes made for person use that do not have an official purpose.

RSA 91-A:5 Exemptions

VIII. Any notes or other materials made for personal use that do not have an official purpose, including, but not limited to, notes and materials made prior to, during, or after a proceeding.

The scope of the exemption for personal notes is already virtually unlimited because the AG has construed the law to mean that notes taken by paid government employees, pertaining public business, at government meetings (even where the public may not be present), do not have an official purpose and are therefore exempt from disclosure unless they are the formal minutes of the meeting or the like. The addition of the words “but not limited to” are unnecessary and further undermine the ability of the public to gain access to governmental records.

The above review is made in the context of a law which has no real world mechanism to compel compliance and a law which has no real world consequences for non-compliance.

When presenting these issues to supports of the bill the response has generally been that they are misinterpretations of the intent of the various provisions.

Link to HB1408

Link to the text of HB1408 inserted into the existing statute (for context).

www.RightToKnowNH.org