Training on RTK law now available

Right to Know New Hampshire (RTKNH) has put together a presentation on the Right-to-Know law.  This is a comprehensive review of the Right-to-Know law and covers governmental records, minutes, public and nonpublic meetings, and violations.

RTKNH is available to provide a right to know training class to your group.  The training class includes our presentation on the Right-to-Know Law.  To schedule our training class for your organization or citizen’s group, contact us.  To contact us, please click ‘Send us a message’ on the right side of this page.

Additional training materials can be found on our blog under the Training menu option.

Right to Know Articles of Interest

Using Right to Know Law to Enhance Chance for Success in Land Use Regulation Disputes

Practical Tips: How to Use the Right to Know Law to Enhance Your Chances for Success in Land Use Regulation Disputes

Author: H. Boone Porter, III*

New Hampshire’s Right-to-Know Law, RSA ch. 91-A (“RTKL”), is a useful tool for compelling public bodies to produce government records.  The information contained in such records can be helpful in understanding government actions. Did you also know that the RTKL sometimes can give a party a “leg up” in a land use regulation dispute? This article will briefly outline ways that a litigant can use the RTKL to increase the likelihood of a successful resolution in such cases.

Land use regulation disputes often arise after a party files an application with a planning board, a zoning board of adjustment, a board of selectmen, or a historic district commission (each a “land use board”). For example, applicants might encounter what they believe is unwarranted resistance from abutting property owners or inamicable members of a land use regulatory board. Abutters, on the other hand, may feel that an applicant’s plans violate local ordinances and that municipal officials should block the project.

While most municipal land use board members discharge their duties in good faith compliance with the law, that is not always so. As volunteers, some municipal officials lack adequate training to perform their responsibilities competently. Too often, land use boards fail to seek proper legal advice, or, if they do, such advice is sought and received through intermediaries. For example, a secretary may be the person who actually poses the question to the attorney and then relays the attorney’s answer back to land use board members, with much “lost in translation.” Sometimes, the advice given by town counsel embodies legal “shortcuts” in misguided efforts to minimize legal fees and/or to please the land use board’s known biases. Finally, members of land use boards may have their own undisclosed political agenda that prejudices their decision-making.

The RTKL can help in these situations. The RTKL not only regulates the disclosure of public records, it also regulates the manner in which land use boards meet, deliberate over applications, and make decisions. If the land use board fails to comply with the RTKL, the RTKL offers judicial remedies that are better than those that are available under RSA 677:4 and RSA 677:15, the statutes under which land use board decisions are usually attacked in Superior Court. Hence, in appropriate circumstances, a disappointed party in a land use dispute should consider bringing a claim under the RTKL as well as RSA 677:4 and/or RSA 677:15.

In anticipation of the possibility of bringing a RTKL claim, and as a matter of good practice, parties should pursue the following actions in land use regulation disputes.

  1. Obtain copies of all notices of public meetings and of all minutes of public meetings concerning the matter in controversy.
  1. Keep a contemporaneous log of all in-person conversations and telephone calls with town officials/employees and third parties relating to the application. Your log should include the date, time, and place of the conversation or telephone call, the names of all parties to the discussion, and the substance of the discussion. Double check your log entries against information received under ## 4 and 10 below.
  1. Keep copies of all letters and e-mail communications with municipal officials and other parties.
  1. Make a RTKL request for a copy of all materials pertaining to an application (whether you are the applicant or the opponent) before any scheduled hearing on the merits. As an applicant, you may be surprised to learn that materials you have submitted and requested be included in your file have not been included therein. As an opponent, you may be surprised to learn what materials are included in the application’s file. Be sure to request copies of meeting packet notes (i.e., transmittal/instruction memoranda sent to land use board members before each meeting). These latter documents can contain valuable information, including town counsel’s advice to the land use board members.

Your RTKL request should seek copies of all written communications (including e-mails, tweets, etc.) among and/or between the land use board members and staff, and other persons, regarding the application. Specifically request such materials that are not just kept in the municipality’s offices but that are kept in the homes, and on the personal computers, of the land use board’s members and staff. You may be surprised to learn that some land use board chairmen and staff keep certain land use board records in their homes and that copies are not kept at the municipal government’s offices.

  1. Attend all noticed hearings, and record the proceedings, a right you have under the RTKL. You can use your smart phone. Sit where your phone will clearly pick up everything that is said. Official minutes often omit key statements made at public meetings; hence, your ability to produce a verbatim transcript from your recording could mean the difference between winning and losing in court.
  1. The RTKL requires public bodies to conduct all deliberations, and to make all decisions, at publicly noticed hearings. Land use boards frequently violate these requirements. Statements like, “Thank you for your presentation; we will think about your request and we’ll get back to you with our decision,” are red flags. What you probably are being told is that the members of the land use board are going to unlawfully deliberate in private. Ask the chairman if that statement means all future deliberations will be conducted at the next publicly noticed meeting. Be sure you have a clear recording of your question and of the chairman’s answer. Also, note statements like, “We have talked about your application among ourselves after our last meeting and with people around town. We have decided to do ___.” This is, in essence, an admission of a violation of the RTKL that deliberations must be conducted in public view and of your Constitutional right to due process.
  1. Some land use boards try to finesse these issues by claiming that they discussed an application with all interested parties during a noticed meeting, then, before adjourning, and after all members of the public (including the applicant and opponents) have left the room, deliberated and reached a decision, even though there is nothing in the official minutes to support that scenario. A recent RTKL case found this practice to be a violation of the RTKL.
  1. Before filing your RTKL claim with the Superior Court, make a second request to obtain copies of documents created since your last RTKL request. Also, request any public documents relating to any prior RTKL or land use regulation lawsuits involving any of the municipal officials/employees related to your case.  Yes, sometimes there are “repeat offenders,” and their continued misconduct may entitle you to attorneys’ fees, injunctive relief, or civil money penalties under the RTKL.  See # 10 below.
  1. At the same time, also consider making RTKL document requests to public bodies like Primex and the N.H. Municipal Association if they possess information that could be relevant, e.g., pooled risk coverage information or seminar and training materials for best practices, etc.
  1. If the land use board renders a final adverse decision, but violated a requirement of the RTKL in the process, you can obtain relief under the RTKL not otherwise available under either RSA 677:4 and RSA 677:15. In claims under RSA 677:4 and RSA 677:15, the land use board’s findings are deemed presumptively correct, and whoever is attacking those findings has the burden of showing they are wrong and/or in violation of applicable law. No such presumption exists under the RTKL. Furthermore, if the RTKL claim involves the failure to disclose public records, the burden of compliance will be on the land use board. More importantly, an appropriate claim under the RTKL provides additional advantages such as:
  • Your court case will have priority docketing so it will be heard much more quickly.
  • If the alleged violations of the RTKL created unfairness during the administrative proceeding, or due process violations, that proceeding can be vacated. If vacated, you need not pursue the companion lawsuits brought under RSA 677:4 and/or RSA 677:15.
  • If you prevail, depending on circumstances, you might be entitled to your attorneys’ fees.
  • Again depending on circumstances, you may be entitled to injunctive relief, civil money penalties assessed against offending municipal officials/employees, or the imposition of remedial training.

 

Good luck!

*This article is for general informational purposes only. It is not intended to be, nor does it constitute, legal advice. Consequently, no person may rely upon this article as legal advice. The facts and circumstances of each dispute arising under the RTKL are unique. Persons seeking legal advice regarding the RTKL or any other legal matter should consult with competent legal counsel.

 

 

 

Durham schedules RTK Educational Session on Tuesday 4/25/17

RIGHT-TO-KNOW LAW EDUCATIONAL SESSION SCHEDULED FOR BOARD MEMBERS AND COMMUNITY – TUESDAY, APRIL 25, 2017

The members of the Town of Durham’s boards, committees, commissions, Town Council, and Library Board of Trustees serve as members of public boards and are therefore responsible to act in accordance with the Right-to-Know law in the State of New Hampshire. The Preamble of the Right-to-Know law reads:

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.

In order to ensure that the members of Durham’s public boards are given the resources they need to act in accord with RSA 91-A, a Right-to-Know law educational session has been scheduled for Tuesday, April 25, 2017, beginning at 7:00 PM in the Durham Town Hall Town Council chambers.

Attorney Laura Spector Morgan from The Mitchell Group will be present to provide an overview of the Right-to-Know law and to answer any questions that board members may have.

The general public are invited and encouraged to attend the session, or to view it on Durham Community Access Television (Channel 22).

For more information contact:

Todd I. Selig, Administrator
Town of Durham, NH
8 Newmarket Rd., Durham, NH 03824
t: 603.868.5571
tselig@ci.durham.nh.us

RTK law violated by NH law makers

As the country was celebrating sunshine week, one NH legislative committee was banning the recording of their public meeting – a clear violation of the Right-to-Know law.

On March 13th, the Finance Committee Division I was conducting a public meeting. While called a work session, it was a public meeting nonetheless.

This violation was recorded on video by David Ridley.

Here is a summary of the events which took place.

David Ridley attends a legislative committee work session and starts to video record.

The Chair says “There’s no photography in the committee room”.

Ridley asks “Under what law would I be prohibited from filming?”

The Chair says: “We have house rules; please direct that question to the Speaker’s office”

Security is summoned and tells Ridley he can’t record “By request of the chair”

Security is not willing to state the law or rule which forbids cameras during the work session.

Ridley continues to film the work session.

While he is recording, Someone says “Sir, you are being very disruptive to our meeting”

When he asks how is he being disruptive, a committee member replies ““You are using a camera and we have house rules that you’re not supposed to be using a camera”.

Security later says  “No recording because it’s not a public hearing”  “It’s a house rule, its disruptive to the hearing”.

The chairperson stated that recording the work session was against house rules.   However, according to House Rule #110:

  1. Open Meetings. All meetings of any committee of the House and Senate shall be open to the public subject to the provisions of N.H. RSA 91-A.

And RSA 91-A:2 II says ” …all meetings…shall be open to the public… Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings.”

Another committee member also stated recording was against house rules.  A total of 9 committee members were in attendance and not one of them knew house rule #110 or was willing to speak up and correct the violation.  That’s unfortunate, because had another member spoke up they could have invoked House Rule #100 (f) which requires the Chairperson “To explain or clarify any rule of procedure upon request”.

Security apparently did not know house rule #110 but they were certainly willing to enforce a house rule that no one was willing to reference and that, in fact, did not exist.

What transpired here is typical of what happens all too often in public meetings around the state. Officials tell the public you can’t do something that the Right-to-Know law says you can do.  But the officials don’t back up their position when asked.   Then, the simple request of asking for the law or rule to support their position is used to claim that the person is being ‘disruptive’.

This incident is just one more example which vividly demonstrates that New Hampshire public officials, at all levels of government, need more training in the Right-to-Know law.

For additional press coverage of this violation:

NH1

NH Political Buzz

Girard at Large

Photography is not a crime

RTK Case Settles Before Supreme Court Argument

Unusual Right to Know Law Case Settles Before Supreme Court Argument

By: H. Boone Porter, III

A closely watched case, Porter, et al. v. Town of Sandwich, et al., Dkt. No. 212-2014-CV-00178 (Carroll County Superior Court), was recently settled on terms extremely favorable to the plaintiffs.* Under the settlement: (i) the Town withdrew its pending appeal to the Supreme Court with prejudice; (ii) the Superior Court’s orders that, among other relief, vacated a total of 6 Town administrative proceedings and mandated Town officials and employees to attend remedial training, collectively became a final, binding, and non-appealable judgment; (iii) the Town and the intervenors together agreed to reimburse the Porters $200,000 in attorneys’ fees of the $204,000 awarded by the Superior Court; and (iv) the Porters’ will dismiss 2 appeals of Zoning Board of Appeals (ZBA) decisions that are now moot.  

This case highlights that the Right-to-Know Law (RTKL) not only compels public bodies to disclose government records, but also regulates how public bodies convene and conduct meetings and how they deliberate and make decisions. When a public body violates these requirements, an aggrieved party may seek relief for: (i) reimbursing attorneys’ fees; (ii) vacating of administrative decisions; (iii) requiring public officials to attend remedial training; (iv) entering injunctions; and (v) imposing civil penalties on offending officials.

The underlying facts were complex and intertwined with those of 2 appeals of ZBA decisions the Porters simultaneously filed with the Superior Court. Ultimately, the Superior Court wrote a 47-page order finding that the Town had engaged in systemic violations of the RTKL by: (i) conducting unnoticed meetings of public bodies; (ii) deliberating upon, and then reaching decisions for, pending cases in unnoticed meetings; (iii) participating with Town counsel in conduct intended to circumvent the spirit and purpose of the RTKL; and (iv) failing to disclose requested public records. A simplified statement of the facts necessary to understand the Porter’s RTKL claims is recited below.

The Porters owned an undeveloped lakefront lot. In 2014, the owners of an abutting lakefront lot (the “Intervenors”) erected a building in apparent violation of the Town’s zoning ordinance. When negotiations between the principals failed, the Porters petitioned the Board of Selectmen to conduct a hearing under RSA 43:1 to determine: (i) if the building permit issued to the Intervenors was invalid; or, alternatively, (ii) if validly issued, the building erected exceeded the permit’s authorization.

The Selectmen denied the Porters’ request. During a public meeting, the Selectmen announced that they had already discussed this matter among themselves and were “interpreting” the zoning ordinance in a manner unfavorable to the Porters. The Porters then filed two separate appeals of adverse administrative decisions with the Zoning Board of Appeals (ZBA).

Learning of the Porter’s planned first appeal, the chairman of the ZBA e-mailed all ZBA members, with a copy accidentally sent to Mr. Porter. The e-mail made false accusations against the Porters, claiming that they were lobbying Town land use boards to concur with their interpretation of the law and that they were violating ZBA rules governing administrative appeals. The e-mail instructed ZBA members to destroy all copies of the Porters’ appeal. The chairman’s life partner, who served as the ZBA’s land use secretary, replied to all ZBA members that she had “instructed” the Town’s administrative assistant and the Selectmen’s assistant to “confiscate” any filing made by the Porters.

Mr. Porter sent three replies. First, he stated that the e-mail’s factual allegations were unfounded and negatively prejudiced the Porters’ appeal. Second, he warned that “confiscation” of his filing would have serious legal consequences. Finally, he noted that the ZBA chairman’s e-mail constituted a meeting of a public body in violation of the RTKL. Several days later, the Porters filed their first ZBA appeal, and shortly thereafter, filed their second.

The ZBA denied the Porters’ first appeal concerning the Selectmen’s refusal to conduct a public hearing under RSA 43:1, claiming it lacked jurisdiction because of time bar. The ZBA relied upon a zoning ordinance provision that applied only to applicants whose building permits had been denied, and which was inapplicable to the facts presented. The ZBA next denied the Porter’s second appeal relating to the Selectmen’s erroneous interpretation of the zoning ordinance, claiming it had no jurisdiction to reverse the Selectmen’s decision not to hold a hearing under RSA 43:1.

This second decision was based on the ZBA’s incorrect finding that the Selectmen had not interpreted the zoning ordinance. A transcript of a recording of the Selectmen’s meeting announcing its decision conclusively disproved the ZBA’s “finding.” During this second proceeding, the ZBA did not permit the Porters to argue the existence of jurisdictional facts.

The Porters filed motions for reconsideration. Shortly before the scheduled hearing (where the ZBA was supposed to deliberate upon and decide both motions in public view), the Porters discovered a copy of the ZBA’s denial decision of one of their motions on the front seat of their car. The denial decision recited facts not in the record and the names of the ZBA members appeared under signature lines. The Porters also found a redacted transmittal e-mail to all ZBA members. (Unbeknownst to the Porters, a similar denial decision and transmittal e-mail had also been sent to all ZBA members concerning the other pending motion for reconsideration.)

The redacted e-mail stated the accompanying denial decision was the recommendation of Town counsel prepared on the direction of the ZBA’s chairman. The e-mail instructed ZBA members to carefully consider the denial decision on an individual basis; admonished them to be prepared to discuss its contents at the upcoming public hearing; and advised them of the precise wording to be used in making a motion to adopt the denial decision.

Alarmed, the Porters made a RTKL document production request to discover what other covert proceedings might have occurred. The Town, however, did not timely or completely respond. At the hearing on the motions for reconsideration, the Porters and their counsel were prohibited from speaking, and both motions were denied. The Town finally produced documents revealing that Town employees had exchanged e-mails disparaging and mocking the Porters throughout the administrative proceedings. The Porters then filed their RTLK lawsuit.

The Superior Court determined the Selectmen had decided to deny the Porters’ request for a hearing under RSA 43:1 outside of a publicly noticed hearing. The Selectmen testified they had decided the matter at the end of a public hearing but their decision had not been included in the minutes. The Superior Court found this testimony “not credible.”

The Court ruled the pre-hearing circulation of the draft denial decisions was a scheme to unlawfully circumvent the RTKL. It determined the drafts were signals to ZBA members how the chairman wanted the appeals decided and that typing individual ZBA member’s names under the signature lines was, in the circumstances, an improper solicitation of votes. The Court also found that the Town failed to timely produce public documents requested under the RTKL. The Court concluded that the Town knew or should have known it had engaged in “obvious” and “clear” violations of the RTKL, and these violations would have continued but for the Porters’ lawsuit.

As stated above, the Superior Court: (i) declared that the Town violated the RTKL; (ii) vacated all of the Board of Selectmen and ZBA proceedings as being irredeemably tainted by unfairness; (iii) ordered designated Town officials and employees to complete a specified training program by a court-approved independent attorney; and (iv) awarded the Porters their attorneys’ fees. The Court declined to enter an injunction, deeming its training remedy sufficient to prevent future violations, and concluded civil penalties should not be assessed against Town officials because they acted with poor judgment and not in bad faith. It is unclear if this last finding was made to protect the Town’s right to maintain insurance coverage, but in fact, it had no coverage for violations of the RTKL.

Footnote(*): The author was one of the Plaintiffs in this case. This article is for general informational purposes only.  It is not intended to be, nor does it constitute, legal advice. Consequently, this article may not be relied upon as legal advice by any person. The facts and circumstances of each RTKL case are unique. Persons seeking legal advice regarding the RTKL or any other legal matter should consult with competent legal counsel.

 

Senate Hearing on Bill HB170 on Posting Notices and Minutes on Web

The Senate Judiciary Committee has scheduled a hearing on HB170  for Tuesday April 4th at 9:15 am in the State House Room 100.  This bill is sponsored by Rep. Ed Comeau (R) and was amended by the House.

The bill amends RSA 91-A:2, II to include the following:

 If minutes are posted on the public body’s Internet website, then they shall be posted on such website consistently for all subsequent meetings, once they become available.

and

If notices are posted on the public body’s Internet website, then they shall be posted on such website consistently for all subsequent meetings.

RTKNH supports this bill.

RTKNH asks everyone to write to the Senate Judiciary Committee requesting them to support the bill.

Previous testimony in support of this bill can be found here.

Senate hearing on bill for commission to study RTK complaint process

On Tuesday the Senate Judiciary Committee heard testimony on HB178.  This bill establishes a study commission on resolving Right-to-Know complaints. HB178 was previously passed by the House Judiciary Committee.

David Saad, President of RTKNH, appeared at the Senate Judiciary Committee hearing and testified in support of the bill.

Here is his written testimony:

 

To: Honorable Members of the Judiciary Committee
Re: HB178

I ask you to support HB 178 to establish a commission to study complaints.

The Right-To-Know Law ensures openness and visibility into the actions, decisions, and records of government, therefore we have a right to know what decisions they are making, when they make them, and why they arrived at a given decision. Violations of the law diminishes our access to this information and creates an environment where misuse of power can flourish and distrust of government grows.

Should a citizen feel the law has been violated, currently, enforcement of the law falls squarely on the citizen’s shoulders.  Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive.   Additional costs are also born by public bodies and the courts.  Regardless of who wins or loses the lawsuit, the taxpayer is burdened with a great deal of the total expense.  To reduce these costs to the taxpayers, this study commission will study ways to reduce both the number of and the expense of resolving complaints.

Some of the alternative ways other states resolve right to know complaints include the use of:

  • Independent Arbiters
  • Advisory Councils
  • Public Access Counselors
  • Attorney General’s Office
  • Compliance Boards
  • Ombudsman Office

The appeals boards currently operating in NH (i.e. Tax and Land Appeals, Water Council, etc) also provide a framework and track record for success in resolving complaints.

These and other options should be reviewed for their merits with the goal of establishing a less costly procedure for resolving right to know complaints.