| What You Need to Know About Access To Public Records in New Hampshire | ||||||||||||||||||||||||||||||||||
| June 10, 2003 | ||||||||||||||||||||||||||||||||||
| By Dean B. Eggert | ||||||||||||||||||||||||||||||||||
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This article was originally presented by the author in Manchester, New Hampshire on June 10, 2003, at a seminar sponsored by Lorman Education Services entitled What you Need to Know about public records and open meetings in New Hampshire.
A Word of Caution No two cases are exactly alike. This material is designed to provide the reader with a broad understanding of the law pertaining to public records and the Right-to-Know law. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your legal counsel regarding any specific case.
This material is designed to provide the reader with a working knowledge of the law regarding access to public records. The goal of this material is to leave the professional better equipped to make prudent judgments regarding access to public records whether in the context of a municipal organization or on behalf of individuals seeking access to public records.
II. Public Policy And Public Records This State has a clear public policy on the public's right of access. This policy has been deemed so vital to the State that it has been incorporated within the New Hampshire Constitution. Part I, Article 8 observes that:
NH Const. Part I, Art. 8. This broad statement of public policy is further defined in NH RSA 91-A:1
NH RSA 91-A:1.
Lest there be any doubt, New Hampshire has a clear presumption favoring disclosure of public records. It is settled law in New Hampshire that restrictions on access must be reasonable, and exemptions from disclosure will be interpreted in a restrictive fashion. See e.g., Goode v. New Hampshire Office of Legislative Budget Assistant, 145 NH 451, 767 A.2d 393 (2000).
IV. Defining What Is A Public Record The first hallmark of a public record is that it must either be the product or possession of a public body. As a general rule, public records can only be generated by public bodies, although in some circumstances private entities assuming public functions, can create public records. Therefore, we know that any board or commission of any state agency or authority has the capacity to create public records. Similarly, any board, commission, agency or authority of any county, town, municipal corporation, school district, school administrative unit, charter school, or other political subdivision or any committee, subcommittee or subordinate body thereof, or advisory committee thereto has the capacity to generate a public record. We also know from the case of Bradbury v. Shaw, 116 NH 388 (1976) that while not all entities that work for or with the government are subject to the Right to Know Law, entities which perform governmental functions, are more likely than not subject to the Right to Know Law. For example, industrial commissions, advisory committees and the like have the capacity to create public records. The Right to Know Law does not actually define the term "public record." However, we can glean from the provisions of NH RSA 91-A certain records which are unequivocally defined as "public records." They are as follows. A. Minutes of All Public Proceedings NH RSA 91-A:2 (II) clearly defines minutes of all public proceedings as a public record. Minimally sufficient minutes of meetings include the following:
B. Minutes of All Non-Public Proceedings The decision by a body or agency to enter into non-public session does not liberate it of the requirement to create a public record. In fact, NH RSA 91-A:3 (III) requires that certain minutes of proceedings in non-public session shall be kept. There is no reason to believe that the minutes of a non-public session contain less than the components set forth above for public session minutes. In the wake of September 11, 2001, the New Hampshire Legislature amended NH RSA 91-A:3(III). This amendment exempts certain matters from the requirement to keep records of minutes of proceedings in non-public session that, "pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions." NH RSA 91-A:3(III).
C. Municipal Records NH RSA 33-A (IV) defines municipal records as "all municipal records, reports, minutes, tax records, ledgers, journals, checks, bills, receipts, warrants, payrolls, deeds and any other written or computerized material that may be designated by the [municipal records] board." See NH RSA 33-A:1. It is clear from NH RSA 91-A:4 that the term "public records" is broader than the minutes of meetings of the bodies or agencies. Absent the existence of an exemption or a valid vote to seal, one can assume that essentially all municipal records are subject to classification as public records.
D. All Notes, Materials, Tapes Or Other Sources Used for Compiling The Minutes of Meetings NH RSA 91-A:4 (II) clearly indicates that "all notes, materials, tapes or other sources used for compiling the minutes of meetings" are considered public records unless their disclosure is explicitly prohibited by statute or falls within the exemptions of NH RSA 91-A:5. E. Examples of Records Deemed Public 1. Court Case Records There is a presumption that court case records are public. The burden of proof rests with the party seeking non-disclosure of court records to demonstrate with specificity that there is some overriding consideration or special circumstance, that has "a sufficiently compelling interest" as to outweigh the public's right of access to those records. See Douglas v. Douglas, 146 NH 205 (2001). 2. Draft Documents of Any Public Record See Goode v. New Hampshire Office of the Legislative Budget Assistant, 145 NH 451 (2000). (Draft audit reports are a public record.) 3. Commercial or Financial Information Disclosure of Which Will Not Constitute an Invasion of Privacy. See Union Leader Corporation v. New Hampshire Housing Finance Authority, 142 NH 540 (1997). (Developer and financial information deemed a public record.) 4. Law Enforcement Investigative Records When disclosure does not constitute an unwarranted invasion of privacy. See Union Leader Corporation v. City of Nashua, 141 NH 473 (1996); Lodge v. Knowlton, 118 NH 574 (1978). 5. Agency Budget Requests and Income Estimates See Chambers v. Gregg, 135 NH 478 (1992). Records of agency budget request and income estimates are considered public documents when the benefits of disclosure outweigh those of non-disclosure. 6. Tax Card Information See Menge v. City of Manchester, 113 NH 533 (1973) (holding tax card information is a public record). 7. Certain Records of Payment. Records of any payments made to an employee of any public body or agency or to the employee's agent or designee upon that employee's resignation discharge or retirement. See NH RSA 91-A:4(-a). 8. Electronic Data An agency which maintains its records in electronic data form may, in lieu of providing original documents, provide a printout of the record. See NH RSA 91-A:4(V). 9. Salaries and Employment Contracts of School Teachers See Mans v. Lebanon School Board, 112 NH 160 (1972). 10. Names and Addresses of Substitute Teachers Employed During a Strike See Timberlane Regional Education Association v. Crompton, 114 NH 315(1974). 11. Records of Town Trustees NH RSA 31:34 requires that the trustees of any municipal trust fund "shall keep a record of all trusts in a record book which shall be opened to the inspection of all persons in their town."
V. The Duty to Keep and Maintain Public Records Minutes of public proceedings are considered permanent records of any body or agency or any subordinate body thereof, without exception. Therefore, a public entity has a duty to permanently preserve the records of its body or meetings. See NH RSA 91-A:2. The preservation of municipal records is governed by NH RSA 33-A which creates a municipal records board. The municipal records board establishes by rule, standards, procedures and regulations for the effective and efficient management of municipal records. Such standards, procedures and regulations govern the retention, preservation and disposition of municipal records. See NH RSA 33-A:4-b. NH RSA 33-A:6 requires that regional town meeting and city council records shall not be disposed of but shall be permanently preserved. State records are governed by the "Records, Management and Archives Act". NH RSA 5:38 provides that, "unless otherwise provided by law with respect to particular departments or particular records, records not having a permanent or historical value may be destroyed at the end of 4 years from their making provided that the rules of the [Director of the Division of Records Management and Archives of the Department of State] as adopted under RSA 5:40 may provide that designated records may be destroyed at an earlier period or require their retention for a longer period." See NH RSA 5:38. The municipal entity is required to keep and maintain all public records in its custody of its regular office or place of business in an accessible place. If there is no municipal office or place of business, the public records pertaining to the body or agency shall be kept in an office of the political subdivision in which such body or agency is located or, in the case of a state agency, in an office designated by the Secretary of State. NH RSA 41:58 provides for a similar duty on the part of town officers committees and boards to deposit records in the office of the town clerk which are "not needed elsewhere by them in the discharge of their official duty". The selectman have a duty to care and preserve for the public records of the town in accord with NH RSA 41:59. Town officers are prohibited from loaning out public records or permitting them to be taken from the place where they are usually kept except when necessary for the discharge of official duty or upon the summons of a court of competent authority. NH RSA 41:61 also provides that they shall be open at all proper times for public inspection and examination. See NH RSA 41:61. NH RSA 201-A:18 requires that the clerk in each town and city shall forward to the state library two copies each and to the library of the University of New Hampshire one copy each of the city or town report for the previous fiscal year.
Old Records of The City. NH RSA 48:9 provides that "all records, books, papers, vouchers and documents of every kind which shall be in the hands of any officer, committee or board of officers of the city, not their individual property, which shall not be needed for their present use, shall be properly filed and deposited in the office of the city clerk and shall be kept and preserved there by him as public records of the city."
VI. The Right to Inspect and Copy A. The Scope of The Right Access to public records is effectuated through the citizen's right to inspect and copy public records. Every citizen during the regular or business hours of the public entity and on the regular business premises of such entity has the right to:
In addition, after the completion of a meeting of the municipal entity, every citizen during the regular business hours of the public entity and on the regular business premises of the entity has the right to:
B. The Duty to Make Records Available A municipality has the duty to make public records available along the following terms:
C. Costs Associated With Copying Records NH RSA 91-A:4(IV) provides that if a photocopying machine "or other device" is used by the entity to copy the public record or document requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the body or agency. In addition, the ability to charge the actual cost providing a copy does not exempt a person from paying fees otherwise established by law for obtaining copies of public records or documents, but if a fee is established for the copy, no additional costs or fees shall be charged.
D. The Irrelevance of The Citizen's Reason A citizen's motives in seeking information are irrelevant in the determination whether or not a public record should be disclosed. See Union Leader Corporation v. City of Nashua, 141 NH 473(1996). NH RSA 91-A:8 provides a remedy to any person who is denied their reasonable request for a public record. The test for the reasonableness of the request is not the motive of the requesting individual, but instead reasonableness is measured by the statute itself. There is no prohibition against a municipal entity inquiring as to why an individual is requesting a public record but the citizen need not answer the inquiry and the municipality must make a decision whether or not to disclose the documents on the strength of the statute and not the strength of the citizen's response.
Certain records are exempt from public access. The exemption arises from the express language of NH RSA 91-A, other statutory provisions or as a result of case law. This section explores the various grounds on which a record may be deemed exempt from public access. A. Exempt Records Under RSA 91-A The Right-to-Know law outlines certain records which, as a matter of law, are exempt. The practitioner should remember that these exemptions are narrowly construed and that a court will, whenever reasonably possible, favor disclosure. 1. Sealed Minutes NH RSA 91-A:3(III). Minutes of non-public sessions may be sealed by recorded vote of two thirds of the members present if it is affirmatively determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself or render the proposed action ineffective. Over the passage of time, the board or agency must review its sealed minutes and make an affirmative determination whether or not the circumstances which warranted sealing of the minutes still exist. The statute observes that the information may only be withheld until, in the opinion of a majority of the members, the circumstances giving rise to sealing the minutes no longer apply.
2. Grand and Petit Jury Records NH RSA 91-A:5(I). 3. Parole and Pardon Board Records NH RSA 91-A:5(II). 4. Personal School Records of Pupils NH RSA 91-A:5(III). 5. Records Pertaining to Internal Personnel Practices NH RSA 91-A:5(IV). See also NH RSA 91-A:4(V). 6. Records Pertaining to Confidential Commercial Information NH RSA 91-A:5(IV). 7. Records Pertaining to Confidential Financial Information NH RSA 91-A:5(IV). 8. Records Pertaining to Test Question Scoring Keys, and Other Examination Data Used to Administer a Licensing Examination, Examination for Employment, or Academic Examinations NH RSA 91-A:5(IV). 9. Records Pertaining to Personnel, Medical, Welfare, Library User, Videotape Sale or Rental, and Other Files Whose Disclosure Would Constitute Invasion of Privacy NH RSA 91-A:5(IV). 10. Teacher Certification Records Note the Department is required to release information on a teachers certification status. See NH RSA 91-A:5(V). 11. Records Pertaining to Carrying out of Emergency Functions, Including Training to Carry out Such Functions, Developed and Intended to Thwart a Deliberate Act Intended to Cause Widespread or Severe Damage to Property or Widespread Injury or Loss of Life. See NH RSA 91-A:5(VI). Note that there is a limited purpose release of records on non-public records under NH RSA 91-A:3(II)(1) or exempt under NH RSA 91-A:5(VI) that may be released to local or state officials. See NH RSA 91-A:5-a. B. Exempt Records under State or Federal Statute There are a number of state statutes which provide for confidentiality of certain records. NH RSA 91-A:4(I) acknowledges this fact and provides that if disclosure of a record is otherwise prohibited by statute, the Right-to-Know law does not compel disclosure.
While not intended to be an exhaustive list, the following are some of the more significant statutorily protected records. 1. Papers and Records Pertaining to a Petition for Pre-authorization of a Surrogacy Arrangement. See NH RSA 168-B:24(II). 2. Juvenile Case and Court Record in a Delinquency Proceeding. See NH RSA 169-B:35 and 169-B:36. Disclosure of case records is governed by NH RSA 170-G:8-a which preserves the confidentiality of case records and essentially limits access of those records to necessary parties. 3. Court Records and Case Records Pertaining to Juvenile Child Abuse and Neglect Hearings. See NH RSA 169-C:25. All case records relative to abuse and neglect are deemed confidential and access is limited under NH RSA 170-G:8-a. In State v. Gagne, 136 NH 101(1992) the Supreme Court held that the entire investigatory file of the Division for Children and Youth Services in a juvenile matter is confidential. Any counseling and medical records contained therein are also subject to a privilege. 4. Case and Court Records in Juvenile Proceedings Involving Children in Need of Services. See NH RSA 169-D:25. Once a child in need of services reaches 18 years of age, all court and police records are to be destroyed. In contrast, juvenile delinquency records are sealed. These records are also protected by NH RSA 170-G:8-a. 5. Adoption Records Hearings in Adoptive proceedings are held in closed court. The papers and records pertaining to an adoption proceeding are "subject to inspection only upon written consent of the court for good cause shown". NH RSA 170-B:19 preserves the confidentiality of these records and sets forth a process whereby the adoptee may obtain background information. There are substantial penalties for violating this statutory section. See NH RSA 170-B:19(III). 6. Records Pertaining to Termination of Parental Rights NH RSA 170-C:14 declares the confidentiality of "all papers and records including birth certificates pertaining to the termination of parental rights" and allows for inspection "only upon written consent of the court for good cause shown". See NH RSA 170-C:14(II). There are substantial penalties for violating this provision. See NH RSA 170-C:14(III). 7. Daycare Investigations. The Department of Health and Human Services must observe the confidentiality requirements of any agency from which it receives information in the context of a child daycare and child placing agency investigation or licensure. See NH RSA 170-E:23. See also NH RSA 170-E:49 which requires that the department "shall strictly observe the confidentiality requirements of the agency from which it receives information". 8. Records of the Division for Children in New Services NH RSA 170-G:8, provides that the case records of the Division for Children and Youth Services in connection with a juvenile proceeding, are deemed confidential. See NH RSA 170-G:8-a(II). Access to the records is essentially limited to the essential parties in a proceeding as well as service providers. 9. Records of The Youth Services Center NH RSA 170-G:12 provides that records pertaining to children "shall not be open to the inspection of any persons not on the staff of the director [of the Youth Services Center] except that such records shall be available, by court order, to any court having competent jurisdiction of the child in any matter pending in the state or to such person or persons as may be authorized by the court". See NH RSA 170-G:12(I). 10. Reports or Records Pertaining to the Client of a State Operated Alcohol and Drug Abuse Program. See NH RSA 172:8-a. 11. Records Pertaining to Victims of Domestic Violence. Employees and appointees participating under a state funded domestic violence program are required to maintain confidentiality with regard to persons served. The statewide organization or agency appointed to coordinate domestic violence programs is performing a quasi public function, however their files are confidential. See NH RSA 173-B:21. 12. Communications and Records Made Between the Victim of Sexual Assault or Domestic Violence and Their Counselor. See NH RSA 173-C:2. This privilege may be waived by the victim in whole or in part. See NH RSA 173-C:3 or NH RSA 173-C:4. 13. State Educational Testing Data The state is authorized to delete individual pupil names or codes contained in statewide assessment results. See NH RSA 193-C:11. 14. Library User Records NH RSA 201-D:11, preserves the confidentiality of library records which contain the names or other personal identifying information regarding the users of public or other than public libraries limiting disclosure to request by or consent to the user, subpoena, court order, "or where otherwise required by statute". 15. Videotape Rental Records. NH RSA 351-A:1(I) provides that these records shall be confidential. From a practical perspective, it is unclear why they would be subject to the Right-to-Know law since the Right-to-Know law applies to public bodies. 16. Consumer Protection Investigations NH RSA 358-A:8 provides that no information or material obtained or used under NH RSA 358-A:8 "shall be released publicly by any governmental agency except in connection with the prosecution of legal proceedings" instituted under the consumer protection statute. The same provision goes on to state that "any information, testimony or documentary material obtained or used pursuant to a protective order, shall not be exchanged or released, as provided herein, publicly, except in compliance with such protective order". See NH RSA 358-A:8(VI). 17. Certain Records of the Department of Employment Security See NH RSA 282-A:117 - 282-A:123. In particular, NH RSA 282-A:118 preserves the confidentiality of information obtained by the Commissioner of the Department of Employment Security from "any individual, claimant or employee employing unit" limiting access to the employing unit and the claimant. See also NH RSA 282-A:123 limiting the use of records in collateral proceedings. 18. 911 System Records. NH RSA 106-H:14 exempts any information or records compiled under the statewide enhanced 911 system from public disclosure under NH RSA 91-A. 19. Information Pertaining to the Location of Archeological Sites. NH RSA 227-C:11 explicitly exempts information pertaining to archeological sites on state lands or state waters "from all laws providing rights to public access". 20. Personnel Files of a Police Officer NH RSA 105:13-b provides particular protection to the personnel file of a police officer who is serving as a witness or prosecutor in a criminal case. The file may only be accessed if the judge rules that there is probable cause that the file contains evidence relevant to the criminal case, and upon examination of the filing in camera, the judge makes a determination that it indeed contains evidence relevant to the case. Only those portions of the file which the judge determines to be relevant are to be released. The balance of the file is treated as confidential and returned to the police department. 21. Records of Insurance Department. All records and documents of the insurance department are subject to public inspection pursuant to the Right-to-Know law, RSA 91-A. However, the commissioner may determine by order that it is in the public interest to make public additional records and documents or to hold certain records and documents confidential within the insurance department. See NH RSA 400-A:25(I). 22. Insurance Fraud Investigations Investigations of the State of New Hampshire Insurance Fraud Unit are deemed confidential under NH RSA 417:29 and "shall not be subject to public inspection or disclosure". 23. Insurance Department Records Re: Managed Care Information reported to the commissioner of insurance in the context of regulating managed care is deemed confidential and "shall not be made public by the commissioner or any other person, except to insurance departments of other states, unless the commissioner after consultation with the affected parties, determines that the interest of policyholders, shareholders or the public will be served by the publication thereof in which event the commissioner may disclose all or any part thereof in such a manner as the commissioner may deem appropriate. See NH RSA 420-J:11. 24. Public Assistance Records Records pertaining to public assistance are generally protected by NH RSA 167:30. 25. DNA Database. Records in the New Hampshire Division of State Police Department of Public Safety DNA Database "shall not be a public record for the purposes of NH RSA 91-A." See NH RSA 651-C:3(I). 26. Communicable Disease Records. See NH RSA 141-C:10(I). Any protected records provided to or acquired by the New Hampshire Department of Health and Human Services shall only be released to an individual with written, informed consent or to a person with a legitimate need for such information, and then, only when that information is necessary to provide care and treatment to an individual subject to the protected health information, investigate the causes of disease transmission in the particular case, or control the spread of disease among the public. "Analyses and compilations of data which do not disclose protected health information shall be available to the public under NH RSA 91-A." See NH RSA 141-C:1-(II). C. Judicial Exceptions to Disclosure. The judiciary has also acknowledged certain exemptions from public access under the Right-to-Know law are as follows: 1. Written Legal Advice from the Public Agency or Body's Legal Counsel. NH RSA 91-A:2(I)c indicates that consultation with legal counsel does not fit within the definition of a meeting. Common sense dictates that if the public could access written legal advice from an agency's or body's legal counsel, the attorney/client privilege would be circumvented. The Supreme Court has upheld the protection of written legal advice in society for the protection of New Hampshire Forest v. Water Supply and Pollution Control Commission, 115 NH 192(1975). 2. Bank Examiner's Reports. See Appeal of Portsmouth Trust Company, 120 NH 753(1980). 3. Real Estate Appraisal Reports. Reports compiled by the Department of Transportation for purposes of condemnation/eminent domain are confidential. See Perras v. Clements 127 NH 603(1986).
VIII. The Duty to Preserve Confidentiality NH RSA 42:1-a imposes a clear duty upon a town officer to preserve the confidentiality of certain information. NH RSA 42:1-a(II) states that:
See NH RSA 42:1-a(II). NH RSA 42:1-a(III) provides "no town officer who is required by an order of a court to divulge information outlined in Paragraph 2 in a legal proceeding under oath shall be guilty of a violation under this section."
IX. Destruction of Certain Information Prohibited An individual is guilty of a misdemeanor when he/she destroys information with the purpose of preventing such information from being inspected or disclosed in response to a request for inspection. See NH RSA 91-A:9.
X. Compliance With The Family Educational Rights and Privacy Act [FERPA] Under FERPA, parents have statutory rights to inspect and review their child's educational records. The school district is prohibited from disclosing the records to third parties without prior parental consent. See 34 CFR Part 89. Educational records are generally defined as:
The Family Policy Compliance Office [FPCO] regulates complaints regarding violation of FERPA and investigates parent complaints. In the recent US Supreme Court case of Owasso Independent School District v. Falvo, 36 IDELR 62(US2002) the US Supreme Court determined that peer grading did not create a protected educational record. However, virtually any other student specific document is at risk for being interpreted as a student record.
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