Public Right to Know Law

Click here for an explanation of the Public Right to Know Law.

The Preamble to RSA 91-A:1 Access to Public Records and Meetings states - Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.

The information below is condensed from "Arranging Your Furniture - Operational Basics for Local Land Use Boards".(1)

In his introduction to this section, attorney Bernie Waugh  states, the business of planning and zoning boards is the public's business. The Right-to-Know Law is the bedrock for how all public bodies operate in New Hampshire.

Purpose: Part 1, Article 8 of the N.H. Constitution reads:

"All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.

Government therefore, should be open, accessible, accountable and response. To that end, the public's right of access to government proceedings and records shall not be unreasonablely restricted."

Section 1 of RSA Ch. 91-A reflects this purpose when it says:

"The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people".

What is a Public Body?

"Public bodies include all committees, boards, subcommittees, agencies, etc. which perform a governmental function in the community including all designated subcommittees or informal advisory committees. RSA 91-A:1-a Bribery v.Shaw, 116 N.H.88 (1976)

Public Meeting Notices - A meeting of a public body must have proper notice and be open to the public. A meeting is the convening of a quorum to discuss or act upon any public business. This includes work sessions and deliberations. RSA 91-A states that a notice of the time and place of each meeting, including a non - public session shall be posted in 2 appropriate places or shall be printed in a newspaper of general circulation at least 24 hours, excluding Sundays and legal holidays, prior to meetings. The only exceptions are emergencies which is a situation where immediate undecayed action is deemed to be imperative by the chairman who shall employ whatever means are available to inform the public of the meeting.

Minutes - Minutes must be kept of all public meetings and must be available to the public within 144 hours (six days) after the close of the meeting.

Nonpublic Sessions - Nonpublic sessions are meetings which the public does not have the right to attend. Nonpublic sessions are allowed only for the exemptions specified in the statute - RSA 91:A:3,II.

Public Records -  Anything with information concerning the town's or city's business is a public record, and must be made available to the public unless there is an exception. The records must be made available for inspection during regular business hours - unless a record is temporarily unavailable because it's  actually being used. However, the Supreme Court has said that when the office is very busy, officials can ask the citizen to make an appointment to review the records. The maximum time anyone can be required to wait is 5 daysBrent v. Paquette, 132 N.H. 415 (1989)

Statutory Exemptions - RSA 91 - A:5, IV specifies what type of documents are not available to the public including:

  1. Records pertaining to internal personnel files or practices,
  2. Confidential or commercial information, if release would be an invasion of privacy
  3. Written legal advice.

E-Mail and Other Between Meeting Communications -  Guidelines are outlined below.

Research - Individual board members, between meetings, may prepare drafts of motions or other potential Board action. Board members may also research or investigate general or specific factual issues in order to promote efficient use of meeting time. However, if such research pertains to a case, the member shall, at the Public Hearing, report all findings to the Board and the parties to the case shall be given meaningful opportunity to respond.

Distributions - A Distribution may be made to any number of Board members, so long as it does not become an Exchange. A Distribution is defined as a one way communication, where no between meeting response (except acknowledgement of receipt) occurs or is expected. Unless information is exempt from disclosure under RSA 91 - A, the member making the Distribution shall report on it and its content at the next Public Hearing. Parties to the case shall be given an opportunity to respond to the information in the Distribution.

Exchanges - Exchanges involving a quorum or more of the Board are prohibited. Such exchanges shall be considered deliberations and shall occur only at meetings noticed in accordance with RSA 91-A. An Exchange is defined as a communication or series of them between meetings, which involves a response, or expectation of a response between meetings.

Ex Parte Communications - Board members shall not initiate Ex Parte communications. An Ex Parte Communication is communication other than at a legally noticed meeting, between a Board member and a person (such as an abutter or applicant) with a (legal) interest in, or affected by a pending or future case, or other matter within the Board jurisdiction.

If an Ex Parte communication is initiated by another person, the Board member shall:

  1. Refrain from discussing the substance or merits of a case;
  2. Inform the person, if necessary, that such a discussion could lead to disqualification;
  3. Refer the person to the proper Board meeting or Public Hearing as appropriate and;
  4. Report on the conversation to the Board at a public meeting.

Consequences of Violating the Law

First, the Court has the authority to invalidate action taken in violation of the Right-To-Know Law. Secondly, if a citizen files a lawsuit to enforce the Right-To-Know Law, the town or city official who has violated the law can become liable for that citizen's attorney's fees and costs. In addition, as of 2003, it is a misdemeanor for a person to knowingly destroy information with the purpose of preventing that information from being disclosed after a Right-To-Know Request has been made.

(1) Arranging Your Furniture -  Operational Basics for Local Land Use Boards, 2004, H. Bernard Waugh, Jr. Esq. Gardner, Fulton & Waugh, Lebanon, N.H. From his October 2004 presentation at Planning and Zoning Conference, NH Office of Energy and Planning