When is Communication Not a Meeting?
The Right-to-Know law requires public access to most meetings. To know whether a meeting must provide public access, you must know what meetings are covered by the Right-to-Know law. Meetings under the Right-to-Know law that do not require public access are also known as non-meetings. A non-meeting is still a meeting in the common sense use of the word, they are just not meetings that require any public access.
Public access for a meeting typically means 3 things: 1) notice to the public before the meeting takes place, 2) conducting the meeting so that the public may observe, 3) producing a public record of the meeting as minutes. The Right-to-Know law allows limited public access to a restricted list of subjects in what are called non-public meetings. A non-public meeting must have a public notice, but the meeting itself is not conducted in public. A non-public meeting must have minutes recorded, but those minutes may be sealed so that they are not available to the public. There must be a public record that the minutes of the non-public meeting were sealed. Further, there must be a public record of the motion to enter the non-public meeting and that motion must give in general terms what the subject of the non-public meeting is. This is done by citing the specific exemption that authorizes the meeting to be non-public.
For meetings and communications in general, the Right-to-Know law applies to members of a public body. Since public body includes not only something like a board as well as any committees, subcommittees or advisory committees of that board, a member of a public body is often a member of several public bodies and a meeting or communication must be analyzed in terms of all the bodies the people are members of.
Communications between a single member of a public body and anyone else who is not a member of the public body such as an administrator or employee of a public agency, or a constituent represented by the member, are not subject to the limitations on communications or meetings. These communications may become governmental records that are subject to disclosure, but that is a separate question.
Communications between multiple members that does not involve a quorum of the public body, is not part of larger sequence of communication that involves a quorum of the public body, and that does not violate the spirit of the Right-to-Know law are not subject to the limitations of the Right-to-Know law.
The Right-to-Know law defines a meeting in terms of the communication between the members of the public body. It does not limit a meeting to just when the members are all in the same room. Here are the salient parts of the definition of a meeting from RSA 91-A:2, I:
- “quorum of the membership of a public body”
- “able to communicate with each other contemporaneously”
- “discuss or act”
- “matters over which the public body has supervision, control, jurisdiction, or advisory power.”
The Right-to-Know law specifically excludes a very limited number of meetings by this definition. These excluded meetings do not need to provide any public access at all:
- “strategy or negotiations with respect to collective bargaining”
- “consultation with legal counsel”
- “a caucus consisting of elected members of a public body of the same political party”
- “circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting”
The law also excludes contemporaneous communication among members of a public body that satisfies these criteria:
- “a chance, social, or other encounter”
- “not convened for the purpose of discussing or acting upon such matters”
- “no decisions are made regarding such matters.”
In other words, if a quorum of the members of a public body happen to be together and start discussing business of the public body, then they do not violate this part of the Right-to-Know law as long as they don’t effectively make any decisions. But, be careful because, RSA 91-A:2-a places further restrictions:
- “unless exempted from the definition of “meeting” under RSA 91-A:2, I”
- “public bodies shall deliberate on”
- “matters over which they have supervision, control, jurisdiction, or advisory power”
- “only at meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III.”
So, even though unplanned meetings where there are no decisions may be technically exempted from the definition of “meeting”, to be safe, in addition to not making any decisions at an unplanned meeting, the discussions at unplanned meetings should not turn into deliberations. But, you should be even more careful because the next clause in the law, RSA 91-A:2-a, II further provides this general restriction:
- “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 or purpose of this chapter as expressed in RSA 91-A:1.”
This is a very broad restriction. This covers any communication, whether when members are in the same room or not, whether they can communicate contemporaneously or not, whether they are a quorum or not. This prohibits any communications that circumvent the spirit and purpose of the Right-to-Know law as expressed in the preamble.
The preamble, and hence the spirit and purpose of the Right-to-Know law, is also very broad:
- “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 and discussions and records of all public bodies,”
- “and their accountability to the people.”
Not only is this preamble broad, but it specifies “the greatest possible public access” as the purpose. Returning to RSA 91-A:2-a, II, this means that communications outside a meeting between any members of a public body are prohibited if they fail to provide the greatest possible public access. So, again to be safe, even at unplanned meetings or when communicating in any way, members of a public body should not even discuss business of the public body as that would not provide the greatest possible access to the discussions of the public body.