1987 HB447 Legislative History

Versions of HB447:

• HB447 As Introduced
• HB447 House Committee Amendment
• HB447 House Amendment

House Index 1987

[HJ 1343] HB 447, relative to the right to know law. (Koromilas of Str. 6 - To Judiciary)
72, Comm 488, 1214

House Index 1988

[HJ 1061] HB 447, relative to the right to know law.
rem 40, am 68-74, psd 80, S study 749, 968

Senate Index 1988

[SJ 1304] HB 447, relative to the right to know law.
65, study 610-611

From 1987 House Journal, 1988 House Journal and Senate Journal

Thursday, January 8, 1987

[HJ 69] Rep. Palumbo offered the following:

RESOLVED, that in accordance with the list in the possession of the Clerk, House Bills numbered 376 through 455 and House Resolution numbered 16 and House Joint Resolution numbered 1 and Concurrent Resolutions Proposing Constitutional Amendments numbered 14 through 16 and House Concurrent Resolution numbered 3 and House Bills of Intent numbered 2012 and 2013, shall be by this resolution read a first and second time by the therein listed titles, sent for printing, and referred to the therein designated committees.

Adopted.

[HJ 27] INTRODUCTION OF HOUSE BILLS, HR, HJR, CACRs, HCR and HBIs

First, second reading and referral

[HJ 72] HB 447, relative to the right to know law. (Koromilas of Strafford Dist. 6 - To Judiciary)

Wednesday, March 18, 1987

[HJ 486] COMMITTEE REPORTS (cont.)

[HJ 488] HB 447, relative to the right to know law. Re-Refer to Committee.

The Committee wishes to study the area of deliberative executive session. It hopes to use this bill to examine this controversial area. Vote 15-1. Rep. Thomas U. Gage for Judiciary.

Report adopted.

[HJ 1213] BILLS RE-REFERRED TO COMMITTEE BY HOUSE

[HJ 1214] HB 447, relative to the right to know law.

Wednesday, January 6, 1988

[HJ2 66] COMMITTEE REPORTS (cont.)

[HJ2 68] HB 447, relative to the right to know law. Ought to Pass with Amendment This bill, as amended, includes the "agreed" sections of HB 727 from 1987. As amended, the bill makes no changes in the deliberative executive session provisions of the Right-to-Know Law. It merely clarifies the construction of the law and the definitions under RSA 91-A. Vote 13-0. Rep. Thomas U. Gage for Judiciary.

Amendment

Amend the bill by replacing all after the enacting clause with the following:

1 Construction; Definitions. RSA 91-A:1-a is repealed and reenacted to read as follows:

91-A:1-a Liberal Construction. This chapter shall be liberally construed to provide the greatest access to records and meetings. All exemptions shall be strictly construed against the public body.

91-A:1-b Definitions. In this chapter:

I. "Meeting" means the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-b, II to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power. "Meeting" shall not include:

[HJ2 69] (a) Any chance meeting or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business and at which no decisions are made; however, no such chance or social meeting shall be used to circumvent the spirit of this chapter;

(b) Strategy or negotiations with respect to collective bargaining; or

(c) Consultation with legal counsel, provided that only members of the body, legal counsel, or the agents and employees of either are present and that only legal matters are discussed.

II. "Public body" means:

(a) The general court, including committees of conference and executive sessions of committees;

(b) The governor's council;

(c) The governor with the governor's council;

(d) Any board, commission, agency, or other authority of state government;

(e) Any board, commission, agency, or other authority, of any county, town, municipal corporation, school district, or other political subdivision;

(f) The board of trustees of the university system of New Hampshire and committees of that board; or

(g) Any committee, subcommittee or subordinate body thereof, or advisory committee to any of the above.

III. "Public proceedings" means the transaction of any functions affecting any or all citizens of the state by any public body.

2 Meetings Open to the Public. RSA 91-A:2 is repealed and reenacted to read as follows:

91-A:2 Meetings Open to the Public.

I. All public proceedings, as defined by RSA 91-A:1-b, III, shall be open to the public and all persons, including any member of the media, shall be permitted to attend any meetings of those public bodies.

II. Except for town meetings, school district meetings, and elections, no vote while in open session may be taken by secret ballot.

III. Any person shall be permitted to use recording or broadcast devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings.

IV. If the charter of any city or guidelines or rules of order of any public body as defined in RSA 91-A:1-b, II require a broader public access to official meetings and records than described in this chapter, such charter provisions or guidelines or rules of order shall take precedence over the requirements of this chapter.

V. Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including an executive session, shall be posted in 2 appropriate places or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings. An emergency shall mean a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the public body who shall employ whatever means are available to inform the public that a meeting is to be held. The minutes of the meeting shall clearly spell out the need for the emergency meeting. When a meeting of a legislative committee is held, publication made pursuant to the rules of the house of representatives, the senate, or the joint rules, whichever rules are appropriate, shall be sufficient notice.

3 Executive Sessions. RSA 91-A:3 is repealed and reenacted to read as follows:

91-A:3 Executive Sessions.

I. Bodies or agencies may meet in executive session for deliberations only after a majority vote of members present, which shall [HJ2 70] be recorded in the minutes of the meeting. All sessions at which information, evidence, or testimony in any form is received, except as provided in paragraph II, shall be open to the public. No ordinance, orders, rules, resolutions, regulations, contracts, appointments, or other official actions shall be finally approved in executive session except as provided in paragraph II. The record and minutes of the executive session, as provided in RSA 91-A:4, shall be available for public inspection promptly, except as provided in RSA 91-A:4, II(b).

II. A public body may meet in executive session and exclude the public only if a recorded roll call vote is taken, and the appropriate exemption under this paragraph is stated. The matters discussed during the executive session shall be confined to the matters stated in the motion. A motion to go into executive session stating which exemption under this paragraph is claimed shall be made only when the public body is considering or acting upon the following matters:

(a) The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected requests an open meeting.

(b) The hiring of any person as a public employee.

(c) Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting.

(d) Consideration of the acquisition, sale, or lease of property which, if discussed in public, would likely benefit a party or parties whose interest are adverse to those of the general community.

(e) Consideration or negotiation of pending claims or litigation which has been threatened or filed against the public body or any subdivision thereof, or against any member thereof because of his membership in such public body, until the claim or litigation has been fully adjudicated or otherwise settled.

(f) Consideration of applications by the adult parole board under RSA 651-A.

4 Minutes and Records Available for Public Inspection. RSA 91-A:4 is repealed and reenacted to read as follows:

91-A:4 Minutes and Records Available for Public Inspection.

I. All minutes and records of meetings shall be available to the public, and all persons, including any member of the media, shall have access to them in accordance with this section.

II. (a) Minutes of all meetings as defined under RSA 91-A:1-a, I, including names of members, persons appearing before the public bodies, and a brief description of the subject matter discussed and final decisions, shall be promptly recorded and open to public inspection within 144 hours of the public meeting, except as provided in RSA 91-A:6, and shall be treated as permanent records of any public body, or any subordinate body thereof, without exception.

(b) Minutes of proceedings in executive session shall be kept, at least to the extent of recording any decisions made therein. Decisions reached in executive session shall be publicly disclosed within 72 hours of the meeting. If divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself or render the proposed action ineffective, the members by a 2/3 vote of those present may decide not to divulge. In the event of such circumstances, information may be withheld until, by a majority vote of the members, it is determined that the aforesaid circumstances no longer apply.

III. (a) Every citizen during the regular or business hours of all public bodies as defined in RSA 91-A:1-b, II, and on the regular business premises of such bodies or any office thereof, has the right to inspect all public records, including minutes of meetings of the public [HJ2 71] bodies, and to make memoranda, abstracts, and photographic or photostatic copies of the records or minutes so inspected, except those records exempted by statute or RSA 91-A:5.

(b) After the completion of a meeting of such bodies, every citizen, during the regular or business hours of all such bodies, and on the regular business premises of such bodies, has the right to inspect all notes, materials, tapes, or other sources used for compiling the minutes of such meetings, and to make memoranda, abstracts, photographic or photostatic copies, or tape record such notes, materials, tapes, or sources inspected, except those records exempted by statute or RSA 91-A:5.

(c) 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 and, if there is no such office or place of business, the public records pertaining to such body shall be kept in an office of the political subdivision in which such body is located or, in the case of a state agency, in an office designated by the secretary of state.

(d) Each public body shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when the record is immediately available for release. If a public body is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. If a photocopying machine or other device maintained for use by a public body is used by the body to copy the public record or document requested, the person requesting the copy may be charged only the actual cost of providing the copy, which cost may be collected by the public body. Nothing in this section shall exempt any person from paying fees otherwise established by statute for obtaining copies of public records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.

(e) In the same manner as set forth in RSA 91-A:4, III(d) any public body which maintains its records in a computer storage system may, in lieu of providing original documents, provide a printout of any records reasonably described and which the body has the capacity to produce in a manner that does not reveal information which is confidential under this chapter or any other law. Access to work papers, individual personnel files, and other confidential information under RSA 91-A:5, I(d) shall not be provided.

5 Exemptions. RSA 91-A:5 is repealed and reenacted to read as follows:

91-A: 5 Exemptions.

I. The following records are exempted from the public access provisions of this chapter:

(a) Grand and petit juries.

(b) Parole and pardon boards.

(c) Personal school records of pupils.

(d) Records pertaining to internal personnel practices.

(e) Confidential, commercial, or financial information of an individual, partnership or corporation.

(f) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations.

(g) Individual personnel, medical, welfare, and other files whose disclosure would constitute invasion of privacy.

II. Without otherwise compromising the confidentiality of the files, nothing in this section shall prohibit a public body from [HJ2 72] releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected.

III. Any refusal of access to public records must be based upon one of the above stated exemptions which shall be specifically cited as to the basis for such refusal.

6 Reference Change. Amend RSA 91-A:7 to read as follows:

91-A:7 Violation. Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. The courts shall give proceedings under this chapter priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner or his counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. When any justice shall find that time [probably] is of the essence, he may order notice by any reasonable means, and he shall have authority to issue an order ex party when he shall reasonably deem such an order necessary to insure compliance with the provisions of this chapter.

7 New Sections; Penalty; Other Persons. Amend RSA 91-A by inserting after section 7 the following new sections:

91-A:7-a Penalty. Whoever knowingly violates the provisions of this chapter shall be guilty of a violation.

91-A:7-b Involvement of Other Persons. Any person not a member of the particular public body, but who was knowingly involved in the activity leading to a decision by the court that a meeting of the public body was held in violation of this chapter, shall be subject to the remedies and penalties provided under this chapter.

8 Mandatory Fees and Invalidation. Amend RSA 91-A:8 to read as follows:

91-A:8 Remedies.

I. If any public body [or agency] or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public record or refuses access to a public proceeding to a person who reasonably requests the same, such body [, agency,] or person shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available or the proceeding open to the public. [Fees shall not be awarded unless the court finds that the body, agency or person knew or should have known that the conduct engaged in was a violation of this chapter or where the parties, by agreement, provide that no such fees shall be paid.] In any case where fees are awarded under this chapter, upon a finding that an officer, employee, or other official of a public body [or agency] has acted in bad faith in refusing to allow access to a public proceeding or to provide a public record, the court [may] shall award such fees personally against such officer, employee, or other official.

II. The court may invalidate an action of a public body [or agency] taken at a meeting held in violation of the provisions of this chapter if the circumstances justify such invalidation.

III. In addition to any other relief awarded pursuant to this chapter, the court may issue an order to enjoin future violations of this chapter or may issue a declaratory judgment.

9 Effective Date. This act shall take effect 90 days after its passage.

[HJ2 73] AMENDED ANALYSIS

This bill amends RSA 91-A, the "right-to-know" law.

The bill defines "meetings", "public body", and "public proceedings", and states that RSA 91-A shall be liberally construed to provide the greatest access to records and meetings. The governor and governor's council and legislative committees of conference are included as public bodies

The bill eliminates the provision in current law allowing deliberative sessions. It also requires that refusal of access to records exempt from public access be specifically based on statutory authority.

The bill makes certain persons who are not members of a public body subject to remedies and penalties under RSA 91-A under certain circumstances, and adds a criminal penalty provision.

In addition, the bill rearranges certain sections of the current law for the sake of clarity.

Amendment adopted.

Rep. Thomas Gage spoke in favor of the report.

Thank you, Mr. Speaker. I rise in support of the Committee position on this bill. The primary reason why I rise is to clarify something on page 59. The amended analysis, as inserted in this Calendar, is wrong. It says on the second paragraph, or the third paragraph I guess you call it, "the bill eliminates the provision in the current law allowing deliberative sessions".

That sentence is one hundred percent wrong. I wrote the report on this bill and I will assure you and all you selectmen and planning board members in this room that you would never see my name on a report of ought to pass on a bill that will eliminate the deliberative sessions. Also, Rep. Sytek is going to be presenting an amendment after me to delete a part of our Committee amendment which has come to light, it does not do exactly what we thought we were voting for when we passed this bill in Committee, and so I will encourage you to vote in favor of Rep. Sytek's amendment when it is presented. Thank you.

Rep. Grodin moved that the remarks of Rep. Thomas Gage be printed in the House Journal.

Adopted.

(Deputy Speaker Bums in the Chair)

Rep. Sytek offered an amendment.

Amendment

Amend the bill by replacing section 7 with the following:

7 New Section; Penalty. Amend RSA 91-A by inserting after section 7 the following new section:

91-A:7-a Penalty. Whoever knowingly violates the provisions of this chapter shall be guilty of a violation.

AMENDED ANALYSIS

This bill amends RSA 91-A, the "right-to-know" law.

The bill defines "meetings", "public body", and "public proceedings", and states that RSA 91-A shall be liberally construed to provide the greatest access to records and meetings. The governor and governor's [HJ2 74] council and legislative committees of conference are included as public bodies.

It also requires that refusal of access to records exempt from public access be specifically based on statutory authority.

The bill adds a criminal penalty provision.

In addition, the bill rearranges certain sections of the current law for the sake of clarity.

The Clerk read the amendment.

Rep. Sytek explained the amendment.

Rep. Chretien spoke to the amendment.

Amendment adopted.

Ordered to third.

[HJ2 80] Rep. Palumbo offered the following:

RESOLVED, that the House now adjourn from the early session, that the business of the late session be in order at the present time, that the reading of bills be by title only and resolutions by caption only and that all bills ordered to third reading be read a third time by this resolution, and that all titles of bills be the same as adopted, and that they be passed at the present time, and when the House adjourns today it be to meet Thursday, January 7 at 1:00 p.m.

Adopted.

LATE SESSION

Third reading and final passage

HB 447, relative to the right to know law.

Tuesday, January 12, 1988

[SJ 64] HOUSE MESSAGES

INTRODUCTION OF HOUSE BILLS

Senator Dupont offered the following Resolution:

RESOLVED, that in accordance with the list in the possession of the Clerk, House Bills numbered 17 through 705-FN shall be by this resolution read a first and second time by the therein listed titles, and referred to the therein designated committees.

Adopted.

First and Second Reading and Referral

[SJ 65] HB 447, relative to the right to know law. (Judiciary)

Tuesday, March 29, 1988

[SJ 595] COMMITTEE REPORTS

[SJ 610] HB 447, relative to the right to know law. Interim Study Senator Nelson for the Committee.

SENATOR NELSON: HB 447 is basically the same as HB 727, which was heard by the Senate Judiciary committee last year. The committee felt that this was an important bill, but is meriting further study. Senator Podles has appointed Senator Shelia Roberge and Senator Nelson to do further study on this bill and welcomes the input of any Senators.

[SJ 611] Adopted.

Tuesday, April 5, 1988

[HJ2 747] SENATE MESSAGES

[HJ2 749] REFERRED FOR INTERIM STUDY

HB 447, relative to the right to know law.

[HJ2 968] 1988 INTERIM STUDY AND STATUTORY APPOINTMENTS

HB 447, relative to the right to know law.
Senate Judiciary