This document was originally presented June 28, 2002, at a seminar sponsored by Lorman Education Services on the subject of "What you need to know about Public Records and Open Meetings in New Hampshire."

Table of Contents

I. Overview

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.

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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:

All power residing originally in, and being derived from the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted." NH Const. Part I, Art. 8.

This broad statement of public policy is further defined in NH RSA 91-A:1

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, discussions and record of all public bodies, and their accountability to the people.

NH RSA 91-A:1.

Practice Pointer: When you are caught up in the thicket of details pertaining to a request for access to the public records it is vital that you step back and consider the underlying public policy considerations. Ask yourself the following questions: Am I unreasonably restricting access? Does my position preserve the fundamental presumption of openness, accessibility, accountability and responsiveness. Will my response to this records request further the public policy favoring "the greatest possible public access"?

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III. The Presumption

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).

Practice Pointer: Any public official presented with a request for access to a public record must keep in mind this presumption. If you elect non-disclosure of a public record, you must ask yourself: Does my decision not to disclose this record fit squarely within an available exemption? Absent your ability to answer unequivocally in the affirmative, you must bear in mind that your close call not to disclose will most likely be construed against you by the judiciary.

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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:

Practice Pointer: Passing muster with a minimally sufficient minute for purposes of NH RSA 91-A:2 (II) is of little comfort in the context of an administrative decision. Whether the matter involves a decision at a public hearing by the board of selectmen, the zoning board of adjustment or a planning board, it is important that the minutes include the reasons for the board's decision. Absent such, the practitioner may find themselves scrambling to supplement the record or even worse, the subject of a remand for purposes of clarifying the record.

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.

Practice Pointer: Absent an affirmative motion to seal the minutes, you may assume that minutes of non-public sessions are public records. The purpose of the motion to seal is to create a record that the board has indeed 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."

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.

Practice Pointer: The simple definition of a public record is any record created or held by a municipal entity which has not been exempted from disclosure.

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, NH 722 A.2d 316 (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.

5. Tax Card Information

See Menge v. City of Manchester, 113 NH 533 (1973).

6. 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).

7. 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).

8. Salaries and Employment Contracts of School Teachers

See Mans v. Lebanon School Board, 112 NH 160 (1972).

9. Names and Addresses of Substitute Teachers Employed During a Strike

See Timberlane Regional Education Association v. Crompton, 114 NH 315(1974).

10. 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.

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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 seven 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 nd 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.

Practice Pointer: In small towns zoning boards and the like, often lack dedicated office space and frequently do not have regular business hours. Under such circumstances, the town should make arrangements for the records to be kept with the town clerk and should post a notice as to where the records of the pertinent agency can be obtained. It is technically improper for a planning board secretary or zoning board secretary to retain the official records of the municipality's agency at their home.

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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:

Practice Pointer: Clerks and Secretaries are well-advised to identify all minutes as unapproved until they are presented to the Board at its next meeting.

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.

Practice Pointer: Recent litigation in the Superior Court has dealt with the question of what constitutes a reasonable copying charge. The Town of Weare has successfully defended a copying fee of $.50 per page. Other towns have successfully defended higher costs.

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.

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VII. Exempt Records

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 unwanted 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.

Practice Pointer: There must be a recorded vote in public session to seal the minutes of a non-public session. If during non-public session the parties discuss more than one topic, care should be given to insure that only those portions are sealed which indeed meet the standard of NH RSA 91-A:3(III). Some towns are assiduous in the practice of going into non-public session to address a single topic. By doing such, they create a greater number of non-public sessions but simplify the task of subsequently reviewing minutes to determine whether or not they should be unsealed. Boards should engage in a regular practice of reviewing their sealed minutes to make a determination whether or not they should be released.

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).

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.

Practice Pointer: Before concluding that a record should be disclosed, the decision maker should also carefully consider whether or not there are other statutory exemptions which may require non-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.

13. 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.

14. 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.

15. 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".

16. 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.

17. 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).

18. 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.

19. 911 System Records.

See NH RSA 106-H:14.

20. 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".

21. 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 camera 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.

22. Records of The Insurance Department.

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.

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).

23. 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".

24. 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.

25. Public Assistance Records

Records pertaining to public assistance are generally protected by NH RSA 167:30.

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).

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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:

[w]ithout limiting other causes for such a dismissal, it shall be considered a violation of a town officer's oath for the officer to divulge to the public any information which that officer learned by virtue of his official position, or in the course of his official duties, if: (a) a public body properly voted to withhold that information from the public by a vote of two thirds as required by NH RSA 91-A:3(III), and if divulgence of such information would constitute an invasion of privacy, or would adversely affect the reputation of some person other than a member of the public body or agency, or would render proposed municipal action ineffective; or (b) the officer knew or reasonably should have known that the information was exempt from disclosure pursuant to NH RSA 91-A:5 and that its divulgence would constitute an invasion of privacy or would adversely effect the reputation of some person other than a member of the public body or agency, or would render proposed municipal action ineffective.

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".

Practice Pointer: A town officer may only be dismissed by petition to the Superior Court in accord with NH RSA 42:1-a. However, the statutory law clearly imposes a duty on a town officer to preserve confidential information. Therefore, town officers must exercise care in making disclosure decisions. Query: does this statute place undue pressure on town officials.

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IX. 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.

Practice Pointer: Those individuals who work for school districts or present school districts should exercise care when presented with a request by a third party for student records. The general rule of thumb should be that student records will not be released without parental consent or consent of an adult student.

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