HOUSE BILL NO. 727
INTRODUCED BY: Rep. Chretien of Hillsborough Dist. 33; Rep. Palumbo of Rockingham Dist. 10; Rep. Chambers of Grafton Dist. 12
REFERRED TO: Judiciary
AN ACT relative to the right-to-know law.
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.
EXPLANATION: Matter added appears in bold italics. Matter removed appears in [brackets]. Matter which is repealed and reenacted or all new appears in regular type.
HB 727
STATE OF NEW HAMPSHIRE
In the year of Our Lord one thousand nine hundred and eighty-seven
AN ACT
relative to the right-to-know law.
Be it Enacted by the Senate and House of Representatives in General Court convened:
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 RSA 91-A:1-a is repealed and reenacted to read as follows: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:
(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 are present and that only legal advice is given.
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 and the governor's council;
(d) Any board, commission, agency, or other authority of state government, including the board of trustees of the university system of New Hampshire;
(e) Any board, commission, agency, or other authority, of any county, town, municipal corporation, school district, or other political subdivision;
(f) 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. 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:l-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 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 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 parte 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; provided that whoever knowingly violates the provisions of this chapter for a third or subsequent time within any 12 month period shall be guilty of a misdemeanor.
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 follow:
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 pubic 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 judgement.
9 Effective Date. This act shall take effect January 1, 1988.