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.

2. 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.

3. Keep copies of all letters and e-mail communications with municipal officials and other parties.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

 

 

 

To improve compliance with the Right-to-Know law (RSA 91-A), all newly elected officials should receive information on the Right-to-Know law to educate them on their responsibilities to insure an open and transparent government.

After town elections, Todd Selig, administrator for the town of Durham NH, informs all town council members about the Right-to-Know Law.   His letter below, serves as one example of how officials can proactively educate other officials to improve compliance with the Right-to-Know law.

Letter sent to officials:

Dear Members of the Council and Soon to Be Members of the Council,

I annually send this introductory email to the new Council with a little bit of information concerning email and public meeting protocol in light of the Right-to-Know law (RSA 91-A).

Public Meetings

RSA 91-A requires that all public meetings are open to the public with very few exceptions. A public meeting, even those that are non-public, must be posted in advance so that the public is aware that the public’s board is planning to meet, where it will be meeting, and a general sense of what will be discussed. This allows members of the public to attend the meeting if they desire to listen to or observe the proceedings.  Town Council meetings must by Town Charter be posted 48 hours in advance of a meeting.  All other boards, committees, and commissions must provide for 24 hours posting.

What is a Meeting? 

It is the convening of a quorum (or in the case of the Durham Town Council a majority for the purpose of the Right-to-Know law) of a public body, “whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate contemporaneously,” for the purpose of discussing or acting upon any public business. RSA 91A:2, I.  This includes work sessions.

What is NOT a Meeting?

The law makes it clear that certain gatherings of public officials are not meetings subject to the Right to Know law (see RSA 91-A:2, I). They include:

• Chance, social, or other encounters “not convened for the purpose of discussing or acting upon . . . matters [relating to official business] if no decisions are made regarding such matters”
• Strategy or negotiations relating to collective bargaining
• Consultation with legal counsel

Email Communications

In Durham we have adopted a very open policy with respect to public access to communications. To this end, it is important for you to know that emails that you send to the Town Office will be made available for public inspection upon public request. In addition, ALL emails that I send to one member of the Council, unless they are of a purely personal nature with no local government significance (such as illness, family matters, etc.), are copied to all other members of the Council. This keeps everyone on the same page with the same information.

In addition, ALL email communication that I send to the Council is also copied to Jennie Berry and placed into a file for public and media inspection. Informational emails that you send to me (without also copying the full Council) are not placed in the public binder unless I specifically respond to them ­although they could be requested by a member of the public at any time.  To fully comply with changes to the Right to Know law made in 2008, any emails sent to me in which all or a majority of Councilors are also copied will be placed in our public folder.  If for some reason an email circulates among a majority or the full Council in which I am not copied, please take it upon yourself to ensure we receive a copy of that transmittal for placement in the public folder.

Please know that anything you put in an email and send to the Town could potentially show up the next day in Foster’s, the Union Leader, or any other media publication if a local reporter was to visit, call, or email the Town Hall and request a copy which does sometimes happen.  Residents, developers, and local businesses also request copies of email streams from time to time and these are subject to public disclosure unless the subject is specifically exempted by the Right-to-Know law (i.e., legal correspondence, personnel information, etc). 

In this day and age of lightning-speed email, Facebook, and other on-line communication — great concern has existed as to whether ongoing and deliberate two-way communication between a majority of members of the Council does in fact constitute a public meeting — and an illegal one that has not been posted at that. In Durham, we have historically taken the position that such electronic communication does constitute a public meeting. Changes to the Right to Know law in 2008 are consistent with Durham’s historical interpretation.

Communications Outside a Meeting

RSA 91-A:2-a, limits the use of communications outside a public meeting held in compliance with the law.

• No deliberations outside a public meeting.Public bodies may deliberate on matters of official business “only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III” ­ (i.e., only in properly noticed public meetings).  This does not mean that any mention of a matter of official business outside a public meeting is illegal; however, it is illegal for the body to deliberate on such a matter outside a meeting – i.e., to discuss the matter with a view toward making a decision.  This includes discussions by email and other electronic means!  The intent of the law is that such matters should be deliberated in public.
• No circumvention of the spirit or purpose of the law.  Communications outside a meeting, “including, but not limited to, sequential communications among members of a public body,” shall not be used “to circumvent the spirit and purpose of this chapter.”  This is intended primarily to prevent public bodies from skirting the “meeting” definition by deliberating or deciding matters via a series of communications, none of which alone involves a quorum of the public body, but which in aggregate include a quorum.

To ensure that the Council does not inadvertently have any illegal meetings, we have opted over the last several years to keep two-way email and electronic communication between all Councilors to a minimum. I have tried to craft a few concrete examples to illustrate this situation more clearly below.

Example #1: Examples of Problematic Email Communication between Councilors:

Councilor 1: Is there consensus that the Town should purchase land parcel XYZ for a price of $1,000,000?

Councilor 2: Absolutely.

Councilor 3: Yes.

Councilor 4: Full speed ahead!

Councilor 5: Go.

Councilor 6: Buy it now while the getting is good!

Councilor 7: I vote yes.

Councilor 8: I vote yes.

Clearly, a trend is evolving in which a majority of members of the Council are one by one lending support to a decision — but without the public’s knowledge that a discussion is taking place. This type of email interaction would be a violation of state law.  The discussion should take place at a public meeting.

Example #2. Examples of Problematic Email Communication between Administrator and Council:

Administrator: What does everyone think about developing an ordinance that prohibits pink colored houses in Durham?

Councilor 1: Great Idea.

Councilor 2: I hate pink. Good going. Long overdue.

Councilor 3: As long as my house is grandfathered!

Councilor 4: Super.

Councilor 5: As soon as possible this reform is needed.

Again, public business is being conducted and “discussed” electronically without the public’s knowledge. This would be a problem. The topic would be more appropriately discussed at a public meeting of the Council.

Example 3: Example of Appropriate Communication between Administrator and Council:

Administrator: I am planning to take action XYZ that is within the Administrator’s authority per Charter and wanted to let the Council know of the pending action so that if there are any concerns, these can be brought to my attention in a timely way.

Councilor 1: I have a concern.

Administrator: Thank you for expressing your concern. We will schedule this for discussion at the next public meeting of the Council.

Example 4: Example of Appropriate Communication between Councilors:

Councilor 1 to All Councilors: Madam Chairperson. I want to schedule a discussion for the next meeting dealing with topic Y because it is very important  for a variety of reasons impacting our community.

Chairman: We will put topic Y on the agenda for the next meeting so that all Councilors may weigh in on the subject and so that the public will be informed of the issue. Thank you for the suggestion.

Please do not hesitate to contact me if you have further questions in regard to Right-to-Know law issues.

Todd

 

Right to Know NH has another step-by-step How To Guide! This new guide tells you how to post a notice for a meeting. This is useful for any public official or administration who needs to know the ins and outs of making sure your community is aware of your meetings so they can easily attend. This is a critical requirement of the Right-to-Know Law. Please check out the new How To – Meeting Notice guide from Right to Know NH.

Helpful tools provided by Right to Know NH are step-by-step How To Guides.  Our first is about one of the most confusing parts of Right to Know: How to hold a non-public session.  Because non-public sessions exclude the public, the Right-to-Know law places many restrictions and rules for how they should be held.  These can be confusing, so a simple guide helps public officials make sure they get it right.  This How To – Non-Public guide should step you through the best way to hold a non-public session.