How to Use the Right to Know Law to Enhance Your Chances for Success with Government Disputes
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 resolving disputes? This article will briefly outline ways that a litigant can use the RTKL to increase the likelihood of a successful resolution in such cases.
While most public officials discharge their duties in good faith compliance with the law, that is not always so. Some municipal officials lack adequate training to perform their responsibilities competently. Too often, public officials and employees 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 the public official, 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 public officials known biases. Finally, public officials may have their own undisclosed political agenda that prejudices their decision-making.
The RTKL law can help in these situations. The RTKL not only regulates the disclosure of public records, it also regulates the manner in which public officials meet, deliberate, and make decisions. If the public officials fails to comply with the RTKL, the RTKL may offer judicial remedies that are better than those that are available under other state statutes.
In anticipation of the possibility of bringing a RTKL claim, and as a matter of good practice, parties should pursue the following actions:
- Obtain copies of all notices of public meetings and of all minutes of public meetings concerning the matter in controversy.
- Keep a contemporaneous log of all in-person conversations and telephone calls with officials/employees and third parties relating to subject in dispute. 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.
- Keep copies of all letters and e-mail communications with officials and other parties.
- If applicable, 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 public officials before each meeting). These latter documents can contain valuable information, including town counsel’s advice to the public officials. Your RTKL request should seek copies of all written communications (including e-mails, tweets, etc.) among and/or between the public officials and staff, and other persons, regarding the application. Specifically request such materials that are not just kept in the public body/agency offices but that are kept in the homes, and on the personal computers, of the public officials and staff. You may be surprised to learn that some public officials and staff keep certain governmental records in their homes and that copies are not kept at the government’s offices.
- 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. If the meeting is being recorded by the public body’s recording secretary, make a RTKL request on the record for a copy of the recording. That recording itself is a public record and must be preserved under RSA 33-A:3-a, LXXX at least until the draft minutes of the recorded meeting are approved by the public body. Having two recordings, your own plus the public body’s, should improve the quality of the transcript.
- The RTKL requires public bodies to conduct all deliberations, and to make all decisions, at publicly noticed hearings. Public bodies 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 public body 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/issue 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.
- Some land use boards try to finesse these issues by claiming that they discussed the application/issue 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.
- 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 lawsuits involving any of the public 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.
- At the same time, also consider making RTKL document requests to public bodies like Public Risk Management Exchange (i.e. Primex) and the N.H. Municipal Association (i.e. NHMA) if they possess information that could be relevant, e.g., pooled risk coverage information or seminar and training materials for best practices, etc.
- If the public body 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 other state statutes. With other statutes such as land use statutes, 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 public body. 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 an administrative proceeding, or due process violations, that proceeding can be vacated.
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.