Author's note: To the extent possible without causing confusion, I have endeavored to include hyperlinks to the sources cited in this article. However, with respect to individual sections of RSA 91-A that were changed or added by the new law, the reader desiring online access will have to be content with links to the final bill itself until the Revised Statutes Online have been updated on the State's web site.

With the passage of House Bill 1408, ⁽²⁾ the 2008 New Hampshire Legislature responded to a request made in 2001 by the Supreme Court that the Legislature amend the State's Right-to-Know Law ( RSA 91-A) to explicitly recognize the major role of electronic communication and computerization of government records in the 21st Century. ⁽³⁾

Two years after the Supreme Court's request, the Legislature created a commission to study access to governmental proceedings and records in light of advancing computer technology and the increasing sophistication with which government at all levels conducts the public's business. ⁽⁴⁾

After meeting regularly over a one-year period, the Right-to-Know Study Commission recommended extensive changes to RSA 91-A in its Final Report of October 29, 2004. However, because of controversy over certain proposed changes to the law, attempts over the next few years to enact such legislation were defeated until this year when the Legislature passed House Bill 1408, which became effective July 2, 2008. ⁽⁵⁾

Local officials will notice many new provisions in the legislation, but most of them will not require substantive changes in the way in which municipalities conduct their business. The passage of the changes will in no way dilute the overall purpose of the Right-to-Know Law, as expressed in its preamble, which is "to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." ⁽⁶⁾ Nor will the new changes affect what has been a long-standing practice of the courts to "broadly construe provisions favoring disclosure and interpret the exemptions restrictively." ⁽⁷⁾

The new legislation clarifies how technological advances in communication and computerized data storage fit into the way government conducts its business and interacts with its citizens, but most government officials recognize that the Right-to-Know Law has always applied to these advances, even though they may not have been dealt with explicitly. ⁽⁸⁾

Determining where modern methods of communication fit into the law as it existed prior to passage of House Bill 1408 has been the subject of much discussion among officials and their legal advisors at all levels of government. Many analysts have believed that when a quorum of a public body communicates with each other (e.g., by e-mail) the courts may regard such communication as a "meeting." This was of particular concern to municipal officials, such as boards of selectmen, where as few as two members could constitute a quorum. There was a widespread fear that any communication outside the traditional setting of a public meeting might be illegal and subject the participants or their communities to court-imposed sanctions. That fear was heightened by litigation in which just such claims were made: i.e., that e-mail communication among a quorum of a board amounted to an illegal meeting.

In light of such concerns, the Commission felt that one of its primary duties was to recommend changes which would clarify differences between "meetings" and other forms of communication, while protecting the public's right to be involved in the business of government as much as reasonably practicable.

Much of the debate on the proposed changes to the Right-to-Know Law has focused on the amount and type of communication allowed among a quorum or majority of the members of a public body outside meetings open to the public. Some have recommended that public officials be forbidden to have any substantive communication with each other about public business other than at a meeting to which the public has been invited. Others, including the New Hampshire Municipal Association, have maintained that such draconian provisions would simply be unworkable and would discourage citizen participation in local government. ⁽⁹⁾

Ultimately, the Commission recommended, and the Legislature agreed to deal with, this issue by inserting a new provision forbidding deliberation on public business by a quorum or majority of a public body outside a duly noticed public meeting. ⁽¹⁰⁾ This essentially recognizes that there are some forms of communication that do not rise to that level. Deliberation, although not defined in the law, in this context commonly means "a discussion and consideration by a group of persons (as a jury or legislature) of the reasons for and against a measure;" ⁽¹¹⁾ i.e., discussion with the intent of reaching a decision about something. ⁽¹²⁾

As an example: If two members of a three-person board of selectmen, while walking together on the street, happen to see the rescue squad's ambulance spewing a lot of black exhaust into the air, it would be permissible for one to say to the other: "Maybe the Chief is right about the ambulance needing a ring job. Let's put it on the agenda for our next meeting." On the other hand, if the response to the oil-burning ambulance is: "Looks like the Chief is right about the ambulance needing a ring job; if you agree, I'll call him this afternoon and tell him to get it scheduled," they would clearly be "deliberating" in violation of the law, even if the other selectman did not agree.

The following are other highlights of the new law:

1. Mr. Lassey serves as Vice-Chairman of the New Hampshire Right-to-Know Oversight Commission. This paper was originally prepared for distribution to the officials and boards of Deering, New Hampshire, where the author is Town Moderator and Chair of the ZBA.

2. 2008 N.H. Laws, ch. 303.

3. Hawkins v. N. H. Dept. of Health & Human Svcs., 147 N.H. 376, 380, 788 A.2d 255, 258 (2001).

4. 2003 N.H. Laws, ch. 287 (House Bill 606) . The duties of the Right-to-Know Study Commission, by the terms of its enabling legislation, ended October 31, 2004. The Commission was renewed in 2005 by an act of the New Hampshire Legislature ( 2005 N.H. Laws, ch. 3 (House Bill 41) ) as a five-year oversight commission. See RSA 91-A:11, et seq.

Since its inception, the Commission has been chaired by Representative John Thomas (Belknap, District 5). Commission members are public officials, legislators and private citizens appointed by the Governor and Council, the House and Senate, and by many organizations concerned with access to the workings of government at all levels. They serve on a completely volunteer basis, and have dedicated many hours of hard work over the last five years to bring this needed legislation to fruition.

5. Although the bill specifies an effective date of July 1, 2008, the Governor did not sign it until July 2.

6. RSA 91-A:1 . See also N.H. Const., part 1, art. 8.

7. Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 546, 705 A.2d 725, 730 (1997).

8. See, e.g., Cordell A. Johnston, Electronic Records and Communications Under New Hampshire's Right-to-Know Law, N.H.B.J., Vol. 48, No. 3, Fall 2007, p. 38. This excellent article comprehensively discusses most aspects of RSA 91-A and provides considerable guidance concerning how the new changes will mesh with prior law. The author followed the development of the changes to the law closely, and provided a great deal of assistance to the Commission. Therefore, his article may be regarded as particularly authoritative.

9. As Justice Oliver Wendell Holmes, Jr., once stated: "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Texas v. Pinson, 282 U.S. 499, 501 (1931).

10. RSA 91-A:2-a, I. This new provision does not, however, affect the ability of a Public Body to deliberate in nonpublic session, provided that the requisite safeguards are observed. See RSA 91-A:3 .

11. Merriam Webster's Online Dictionary (10^th ed).

12. The new section also makes clear that attempts to use communications outside a publicly noticed meeting to circumvent the spirit and purpose of the law will not be tolerated. RSA 91-A:2-a, II.

13. RSA 91-A:1-a, as rewritten.

14. See, e.g., RSA 91-A:2, I (a)-(c), as amended, and RSA 91-A:5.

15. RSA 91-A:1-a, III.

16. RSA 91-A:1-a, II, as rewritten.

17. RSA 91-A:1-a, IV.

18. RSA 91-A:2, I, as amended.

19. RSA 91-A:2, II, as amended.

20. RSA 91-A:4, as amended.

21. RSA 91-A:2, I(d), as amended.

22. Id.

23. RSA 91-A:2, II, as amended. There is no requirement that a public body have a web site; the law merely gives the option to use such a site as one of the two locations in which notice of a public meeting may be posted.

24. RSA 91-A:2, III.

25. RSA 91-A:4, III-a.

26. See, e.g., RSA 33-A:5-a.

27. RSA 91-A:4, III-b.

28. See RSA 91-A:9.

29. RSA 91-A:4, V, as amended.

30. RSA 91-A:4, VII.

31. The Right-to-Know Law "require[s] that public records . . . be maintained in a manner that makes them available to the public." Hawkins, 147 N.H. at 379, 788 A. 2d at 258.