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.
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:
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:
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.
As detailed in an article published by the Union Leader, lawyers for the city of Manchester told city officials they cannot charge a fee when people use their own equipment to copy or photograph public records.
According to the Right-to-Know Law RSA 91-A:4 “Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected…”
Furthermore, the law only allows for copy fees “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency.”
In summary, per the Right-to-Know Law the public may inspect and make copies using their own equipment (i.e. a cell phone) without charge.
Guest editorial by Donna Green.
Our state’s Right-to-Know Law became more robust on April 19. That’s when the New Hampshire Supreme Court issued a unanimous decision that public bodies must, if requested, provide documents in electronic format when they are maintained electronically.
For me, this was an enormous victory. As an elected member of the Timberlane Regional School Board, I have been trying to obtain the names, salaries and employment status of the school district’s 700 or so employees in a format suitable for detailed analysis.
My long journey to this victory began in December 2013. Then a member of the Timberlane Regional School Budget Committee, I asked for the number of staff being funded by the proposed 2014/15 budget. My request was ignored so I made my first ever Right-to-Know request.
SAU 55’s first and second response was that the information didn’t exist. My reply was one of incredulity. I threatened to go to the Attorney General’s office. Superintendent Metzler then provided the information in Jan. 2014. A few months later I was elected to the Timberlane Regional School Board.
As it happened, when Timberlane’s 2014/15 staffing report was filed with the Department of Education, there was a large disparity between the number of (full-time equivalent) staff given to me by the superintendent in January and that reported to the Department of Education. It seemed we budgeted for 35 positions that were not filled, but no explanation was ever provided for this discrepancy.
Then I learned that the Hampstead Budget Committee is given an electronic file of all positions and staffing costs in the Hampstead School District. This was a revelation because both Hampstead and Timberlane school districts are administered by SAU 55. So – the same administration using the same software gives Hampstead information that Timberlane didn’t even know existed.
Naturally, I then asked the Timberlane Regional School Board Chairman to provide the entire Timberlane School Board with the corresponding budget information that Hampstead receives concerning staffing. Timberlane’s Chairman at the time, Nancy Steenson, refused – saying it would be a waste of paper as no one on the Timberlane School Board has ever previously had use for such information. I ultimately responded with a Right-to-Know request for an electronic file.
No electronic version was forthcoming, but SAU 55 did make a paper printout available for inspection at their office by appointment and supervision by the Business Administrator. Keep in mind the documents were in the hundreds of pages. By policy, SAU 55 charges 50 cents a page for copies. I would have had to pay hundreds of dollars; furthermore, a stack of paper copies would leave me with documents that couldn’t be searched or reorganized for analysis.
With the assistance of Right to Know New Hampshire and others, I filed a pro se case in Superior Court on February 3, 2015: Donna Green v. SAU 55, the Timberlane Regional School Board, Earl F. Metzler, and Nancy Steenson. I argued that the Right-to-Know Law (RSA 91-A:4, V), , requires public bodies to produce electronic files when the documents requested exist electronically.
On March 9, 2015, Superior Court Judge David Anderson, although sympathetic to my case, ruled that public bodies have the choice to provide either paper or electronic format. I filed for reconsideration. It was denied.
My husband and I were aghast. If we let this ruling stand, it would be embraced by less than forthcoming public bodies beyond Timberlane. Thankfully, Richard J. Lehmann of Douglas, Leonard & Garvey took my appeal to the NH Supreme Court.
On Jan. 7, 2016, Attorney Lehmann argued that the law does not give discretion to public bodies but, in fact, requires them to provide electronic format when documents are maintained electronically. Three suspenseful months later, the Supreme Court determined that the law might be somewhat ambiguous; nevertheless, in light of the purpose of the Right-to-Know Law, which is to provide the utmost information to the public, “…the plaintiff is entitled to the requested documents in electronic format.”
Although this is a victory for the citizens of New Hampshire, it is a tremendous black eye to the Timberlane Regional School District which will go down in history as the public body that wasted many thousands of taxpayer dollars trying to thwart one of its own board members from getting budget information in a usable format.
Not to go down without a fight, though, SAU 55’s superintendent immediately issued a policy change: electronic files will be provided only on a thumb drive delivered in unopened original packaging. That’s right: an SAU which is a service organization to the citizens of our school district and its governing body, the Timberlane Regional School Board, will not email any Right-to-Know responses. Board members and citizens must go to the SAU office during their restrictive hours of 8:30 am to 4 pm, Mon. – Fri., drop off a thumb drive and then return to pick it up. Both SAU 55’s board and the Timberlane Regional School Board as a whole refused to take issue with this new policy.
As one of the Supreme Court justices asked of Timberlane’s lawyer during the hearing, “Why not just give her the information?”
No law can legislate common courtesy. I dropped off my thumb drive ($6) to SAU 55 with a fresh Right-to-Know request to follow.
I’m the public face of a public battle, but behind me are many people. My husband, Arthur, has been more than half of all this with financial, factual and emotional support. Many others have helped, too, with the pro se brief, with publicizing the issue, and general encouragement. To Richard Lehmann, our steadfast advisor, goes our deepest gratitude and respect.
For more on the background of the staffing issue click here.
Donna Green serves as a Sandown representative to the Timberlane Regional School Board and is also member of Right to Know NH.
Additional press coverage of the Supreme Court victory:
In a unanimous decision, the New Hampshire Supreme Court ruled today that the public has a right under the Right-to-Know Law to records in electronic format. Donna Green had requested an electronic copy of budget data, a spreadsheet, but was only offered to inspect a paper copy. The Rockingham Superior Court had ruled that SAU 55 had the discretion to only provide paper copies. But, the Supreme Court reversed that Rockingham decision and ruled that even though the Right-to-Know Law is ambiguous, when read within the purpose of the statute, and the overwhelming usefulness of electronic records, the SAU must provide electronic copies. The decision of the court is available here.
For years, Salisbury resident Louise Andrus and Selectman Ken Ross-Raymond have suspected Merrimack Valley School District officials of violating right-to-know laws. Now, they’re asking a judge to agree.
The two had to learn how to file suit in Merrimack County Superior Court, pay court filing costs and withstand criticism within the community. And, Ross-Raymond said by phone Wednesday, that was all done outside of their own full-time work. He noted that the school board has taxpayer-funded legal representation.
The full article is available here.
In a 26-page decision, Justice Charles Temple ruled for the Carroll County Superior Court that the Tuftonboro Board of Selectmen violated the Right-to-Know Law in 2 ways. They failed to provide proper notice for a public meeting following a non-public meeting and they discussed several topics in another non-public meeting that were not allowed by the law. The plaintiff, Chris Sawyer of Tuftonboro, alleged many more violations of the law besides the 2 that were found by the court. The court required Tuftonboro to pay Sawyer for court costs, and even though it did not impose remedial training due to the high bar for injunctions, the court said “the BOS may wish to voluntarily participate in training….” The full order in Sawyer v. Sundquist, Tuftonboro Selectman, No. 212-2015-CV-118 may be found here.