HB285 is Huge Loophole in RTK

HB285 includes a new exemption for non-public sessions that will seriously weaken the Right-to-Know law by allowing public bodies to effectively discuss anything in a non-public session.  The proposed RSA 91-A:3, II (k) would add a new exemption for non-public sessions that would have effectively no limits.  This would allow public bodies to move many more discussions into secret meetings, depriving citizens of access to their meetings, discussions and deliberations.

Introduced as an Amendment

Bill HB285 was amended by the House Judiciary Committee.  The original bill added a new exemption for non-meetings.  The committee amendment moved the new exemption to RSA 91-A:3,II for non-public sessions:

(k) Consideration of correspondence from legal counsel.

No Subject Limits

Exemption (k) would be the first and only exemption for non-public meetings under RSA 91-A:3, II that was not limited to a specific type of subject.  This makes this exemption extraordinarily broad and ripe for abuse.  On the contrary, if there is some other subject that warrants a non-public session, then a far better change to the law would be to add a new exemption that enumerated that subject.

Swallow Up All Limits

Exemption (k) would swallow up all limits placed on non-public meetings because any time there is a controversy, a public body would only need to request a minimal written letter from an attorney on that subject, and then the public body would be allowed to consider that subject at length.  That single letter would give them a free ride for as long as they want.  Exemption (k) places no limit on the timeliness of the documents.

Not Limited to Legal Advice, but Any Correspondence

Further, exemption (k) is not just limited to written legal advice, but to any written correspondence from a lawyer.  This makes the already broad exemption wide open.  The lawyer could simply pass through any document on any subject whether it is related to a legal issue or not.  Then the public body could deliberate on that subject in private.

Wasted Money Involving Lawyers

Exemption (k) would lead to wasted tax money since their legal counsel would certainly bill public bodies for the written correspondence.  Well-reasoned legal advice tends to be expensive, so public bodies tend to only seek it when necessary.  With the new low threshold exemption (k) would set, legal advice would become much more commonplace.  Even though the written correspondence need not be costly well-reasoned legal advice, it will still not be cheap.

Overreaching Response to Ettinger Case

This proposed exemption is a response to Ettinger v. Town of Madison Planning Board.  In this case, the N.H. Supreme Court ruled that the RSA 91-A:2, I(b) “non-meeting” exemption for “consultation with legal counsel” requires active consultation, either in person or over the phone.  It does not apply to consideration by a public body of documents alone.

Purpose of Attorney-Client Privilege

In its Ettinger opinion, the N.H. Supreme Court explain that the “consultation with legal counsel” exemption is based on the attorney-client evidentiary privilege.  They also explain what the attorney-client privilege means:

“Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives.”

Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1996)

Written Legal Advice Still Confidential

The Ettinger opinion also explains that documents from an attorney still remain exempt from disclosure under RSA 91-A:5, IV as “confidential.”  So, there is no need for a new exemption for non-public sessions to keep these documents private.

Discussion is Beyond Consultation

The purpose of the “consultation with legal counsel” exemption is so that attorneys can provide unfettered legal advice to a public body and that public body can discuss with the attorney to be sure they fully understand that advice.  On its face, exemption (k) seems to allow a discussion among only a public body where one member is trying to clarify legal advice in lieu of the attorney.  If a member has questions about legal advice, they should ask the attorney.  But, it is hard to believe that exemption (k) would practically be limited to only clarifications between members of a public body about what legal advice means, nor does the proposed language of exemption (k) place that restriction.  If the subject of the advice is covered by some other exemption then the clarification about the legal advice among members could occur then.

Way Beyond Limits of Attorney-Client Privilege

Note the specific points in Riddle above on the limits on the attorney-client privilege:

  • professional legal adviser,
  • in his capacity as such,
  • communications relating to that purpose.

That is, the attorney-client privilege is limited to legal advice.  It does not cover other communications between an attorney and a public body that are not legal advice.  It does not cover discussion among the members of a public body that is based upon that legal advice.  Once a public body has received legal advice, they will then deliberate on the subject that advice applies to.  As a deliberative body, only the members participate in that deliberation.  The attorney is not part of that deliberation and so it ceases to be consultation with legal counsel.  The public body will also consider many other related factors besides just any legal advice, a major one being cost.  For a public body to discuss the subject covered by the legal advice, that subject must be covered by some other exemption other than consultation with legal counsel.  This is explained in the N.H. Attorney General’s 2009 memorandum on the Right-to-Know Law, IV. B. 3., p. 8:

Consultation with legal counsel should be limited to discussion of legal issues. Deliberation about the matter on which advice is sought may not occur during consultation with legal counsel. The public body must reconvene and, unless a statutory exemption allowing deliberation in non-public session exists, conduct deliberation in public session.

Legal Counsel Already Abused

Many recent court cases in Antrim, Madison, Marlborough, Oyster River, and other places demonstrate how frequently pubic bodies already abused the exemption for legal counsel.  Broadening this further as exemption (k) would do would lead to even more widespread abuse.  For a specific example of how this has been abused, see Taylor v. Oyster River Sch. Bd.