Chapter 91-A ACCESS TO PUBLIC RECORDS AND MEETINGS 91-A:1 Preamble. 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. 91-A:1-a Definition of Public Proceedings. I. The term "public proceedings" as used in this chapter means the transaction of any functions affecting any or all citizens of the state by any of the following: (a) The general court including executive sessions of committees; and including any advisory committee established by the general court; (b) The governor's council and the governor with the governor's council; including any advisory committee established by the governor by executive order or by the governor's council; (c) Any board or commission of any state agency or authority, including the board of trustees of the university system of New Hampshire and including any advisory committee established by such entities; (d) Any board, commission, agency or authority, of any county, town, municipal corporation, school district, school administrative unit, charter school, or other political subdivision, or any committee, subcommittee or subordinate body thereof, or advisory committee thereto. II. For the purposes of this section, "advisory committee" means any committee, council, commission, or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority. 91-A:2 Meetings Open to the Public. I. For the purpose of this section, a "meeting" shall mean the convening of a quorum of the membership of a public body, as provided in RSA 91-A:1-a, 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; (c) Consultation with legal counsel; or (d) A caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2. II. All public proceedings shall be open to the public, and all persons shall be permitted to attend any meetings of those bodies or agencies. Except for town meetings, school district meetings and elections, no vote while in open session may be taken by secret ballot. Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras and videotape equipment, at such meetings. Minutes of all such meetings, including names of members, persons appearing before the bodies or agencies, 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 body or agency, or any subordinate body thereof, without exception. 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 a nonpublic 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 body or agency 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 or the senate, whichever rules are appropriate, shall be sufficient notice. If the charter of any city or guidelines or rules of order of any body or agency described in RSA 91-A:1-a require a broader public access to official meetings and records than herein described, such charter provisions or guidelines or rules of order shall take precedence over the requirements of this chapter. 91-A:3 Nonpublic Sessions. I.(a) Bodies or agencies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No body or agency may enter nonpublic session, except pursuant to a motion properly made and seconded. (b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present. (c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion. II. Only the following matters shall be considered or acted upon in nonpublic session: (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 (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted. (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 body or agency itself, unless such person requests an open meeting. (d) Consideration of the acquisition, sale or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community. (e) Consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the body or agency or any subdivision thereof, or against any member thereof because of his membership in such body or agency, 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. (g) Consideration of security-related issues bearing on the immediate safety of security personnel or inmates at the county correctional facilities by county correctional superintendents or their designees. (h) Consideration of applications by the business finance authority under RSA 162-A:7-10 and 162-A:13, where consideration of an application in public session would cause harm to the applicant or would inhibit full discussion of the application. (i) Consideration of matters relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. III. Minutes of proceedings in nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply. 91-A:4 Minutes and Records Available for Public Inspection. I. Every citizen during the regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies, and to make memoranda, abstracts, photographic or photostatic copies of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5. I-a. Records of any payment made to an employee of any public body or agency listed in RSA 91-A:1-a, I(a)-(d), or to the employee's agent or designee, upon the resignation, discharge, or retirement of the employee, paid in addition to regular salary and accrued vacation, sick, or other leave, shall immediately be made available without alteration for public inspection. All records of payments shall be available for public inspection notwithstanding that the matter may have been considered or acted upon in nonpublic session pursuant to RSA 91-A:3. II. After the completion of a meeting of such bodies or agencies, every citizen, during regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all notes, materials, tapes or other sources used for compiling the minutes of such meetings, and to make memoranda, abstract, photographic or photostatic copies, or tape record such notes, materials, tapes or sources inspected, except as otherwise prohibited by statute or RSA 91-A:5. III. Each body of agency 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 or agency shall be kept in an office of the political subdivision in which such body or agency is located or, in the case of a state agency, in an office designated by the secretary of state. IV. Each public body or agency shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release. If a public body or agency 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 body or agency is used by the body or agency to copy the public record or document requested, the person requesting the copy may be charge the actual cost of providing the copy, which cost may be collected by the body or agency. Nothing in this section shall exempt any person from paying fees otherwise established by law 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. V. In the same manner as set forth in RSA 91-A:4, IV, any body or agency which maintains its records in a computer storage system may, in lieu of providing original documents, provide a printout of any record reasonably described and which the agency 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, personnel data and other confidential information under RSA 91-A:5, IV shall not be provided. 91-A:5 Exemptions. The records of the following bodies are exempted from the provisions of this chapter: I. Grand and petit juries. II. Parole and pardon boards. III. Personal school records of pupils. IV. Records pertaining to internal personnel practices; confidential, commercial, or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy. Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected. V. Teacher certification records, both hard copies and computer files, in the department of education, provided that the department shall make available teacher certification status information. VI. Records pertaining to matters relating to the preparation for and the carrying out of all emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. 91-A:5-a Limited Purpose Release. Records from non-public sessions under RSA 91-A:3, II(i) or that are exempt under RSA 91-A:5, VI may be released to local or state safety officials. Records released under this section shall be marked "limited purpose release" and shall not be redisclosed by the recipient. 91-A:6 Employment Security. This chapter shall apply to RSA 282-A, relative to employment security; however, in addition to the exemptions under RSA 91-A:5, the provisions of RSA 282-A:117-123 shall also apply; this provision shall be administered and construed in the spirit of that section, and the exemptions from the provisions of this chapter shall include anything exempt from public inspection under RSA 282-A:117-123 together with all records and data developed from RSA 282-A:117-123. 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. 91-A:8 Remedies. I. If any 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 acted in bad faith in refusing to allow access to a public proceeding or to provide a public record, the court may award such fees personally against such officer, employee, or other official. I-a. The court may award attorneys' fees to a board, agency or employee or member thereof, for having to defend against a person's lawsuit under the provisions of this chapter, when the court makes an affirmative finding that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive. 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 circumstance justify the 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. 91-A:9 Destruction of Certain Information Prohibited. A person is guilty of a misdemeanor who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter. If a request for inspection is denied on the grounds that the information is exempt under this chapter, the requested material shall be preserved for 90 days or while any lawsuit pursuant to RSA 91-A:7-8 is pending. Procedure for Release of Personal Information for Research Purposes 91-A:10 Release of Statistical Tables and Limited Data Sets for Research. I. In this subdivision: (a) "Agency" means each state board, commission, department, institution, officer or other state official or group. (b) "Agency head" means the head of any governmental agency which is responsible for the collection and use of any data on persons or summary data. (c) "Cell size" means the count of individuals that share a set of characteristics contained in a statistical table. (d) "Data set" means a collection of personal information on one or more individuals, whether in electronic or manual files. (e) "Direct identifiers" means: (1) Names. (2) Postal address information other than town or city, state, and zip code. (3) Telephone and fax numbers. (4) Electronic mail addresses. (5) Social security numbers. (6) Certificate and license numbers. (7) Vehicle identifiers and serial numbers, including license plate numbers. (8) Personal Internet IP addresses and URLs. (9) Biometric identifiers, including finger and voice prints. (10) Personal photographic images. (f) "Individual" means a human being, alive or dead, who is the subject of personal information and includes the individual's legal or other authorized representative. (g) "Limited data set" means a data set from which all direct identifiers have been removed or blanked. (h) "Personal information" means information relating to an individual that is reported to the state or is derived from any interaction between the state and an individual and which: (1) Contains direct identifiers. (2) Is under the control of the state. (i) "Provided by law" means use and disclosure as permitted or required by New Hampshire state law governing programs or activities undertaken by the state or its agencies, or required by federal law. (j) "Public record" means records available to any person without restriction. (k) "State" means the state of New Hampshire, its agencies or instrumentalities. (l) "Statistical table" means single or multi-variate counts based on the personal information contained in a data set and which does not include any direct identifiers. II. Except as otherwise provided by law, upon request an agency shall release limited data sets and statistical tables with any cell size more than 0 and less than 5 contained in agency files to requestors for the purposes of research under the following conditions: (a) The requestor submits a written application that contains: (1) The following information about the principal investigator in charge of the research: (A) name, address, and phone number; (B) organizational affiliation; (C) professional qualification; and (D) name and phone number of principal investigator's contact person, if any. (2) The names and qualifications of additional research staff, if any, who will have access to the data. (3) A research protocol which shall contain: (A) a summary of background, purposes, and origin of the research; (B) a statement of the general problem or issue to be addressed by the research; (C) the research design and methodology including either the topics of exploratory research or the specific research hypotheses to be tested; (D) the procedures that will be followed to maintain the confidentiality of any data or copies of records provided to the investigator; and (E) the intended research completion date. (4) The following information about the data or statistical tables being requested: (A) general types of information; (B) time period of the data or statistical tables; (C) specific data items or fields of information required, if applicable; (D) medium in which the data or statistical tables are to be supplied; and (E) any special format or layout of data requested by the principal investigator. (b) The requestor signs a "Data Use Agreement" signed by the principal investigator that contains the following: (1) Agreement not to use or further disclose the information to any person or organization other than as described in the application and as permitted by the Data Use Agreement without the written consent of the agency. (2) Agreement not to use or further disclose the information as otherwise required by law. (3) Agreement not to seek to ascertain the identity of individuals revealed in the limited data set and/or statistical tables. (4) Agreement not to publish or make public the content of cells in statistical tables in which the cell size is more than 0 and less than 5 unless: (A) otherwise provided by law; or (B) the information is a public record. (5) Agreement to report to the agency any use or disclosure of the information contrary to the agreement of which the principal investigator becomes aware. (6) A date on which the data set and/or statistical tables will be returned to the agency and/or all copies in the possession of the requestor will be destroyed. III. The agency head shall release limited data sets and statistical tables and sign the Data Use Agreement on behalf of the state when: (a) The application submitted is complete. (b) Adequate measures to ensure the confidentiality of any person are documented. (c) The investigator and research staff are qualified as indicated by: (1) Documentation of training and previous research, including prior publications; and (2) Affiliation with a university, private research organization, medical center, state agency, or other institution which will provide sufficient research resources. (d) There is no other state law, federal law, or federal regulation prohibiting release of the requested information. IV. Within 10 days of a receipt of written application, the agency head, or designee, shall respond to the request. Whenever the agency head denies release of requested information, the agency head shall send the requestor a letter identifying the specific criteria which are the basis of the denial. Should release be denied due to other law, the letter shall identify the specific state law, federal law, or federal regulation prohibiting the release. Otherwise the agency head shall provide the requested data or set a date on which the data shall be provided. V. Any person violating any provision of a signed Data Use Agreement shall be guilty of a violation. VI. Nothing in this section shall exempt any requestor from paying fees otherwise established by law for obtaining copies of limited data sets or statistical tables. Such fees shall be based on the cost of providing the copy in the format requested. The agency head shall provide the requestor with a written description of the basis for the fee.