September 28, 2008, by John A. Lassey[1]

 

House Bill 1408[3] added a new section to RSA 91-A creating a third category of activity subject to the Right-to-Know Law. In addition to meetings and records, RSA 91-A now addresses communications outside meetings. The new provision says:

I.          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 in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III.

II.         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 and purpose of this chapter as expressed in RSA 91-A:1.[4]

§2-a accomplishes two things. First, it makes explicit that which has always been implicit in RSA Chapter 91-A, namely, public bodies should not do the public’s business in private.[5] There has always been sound grounding for this principle. For example, Part 1, Article 8 of the New Hampshire Constitution says:

[Accountability of Magistrates and Officers; Public’s Right to Know] 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.

And the preamble to RSA 91-A goes even a bit farther:

91-A:1 Preamble. – 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 records of all public bodies, and their accountability to the people.

Second, §2-a allows members of public bodies some of Justice Holmes’ “play in the joints” discussed in the passage quoted at the head of this paper. By explicitly prohibiting only deliberation outside meetings, the law implicitly allows communications that do not rise to that level — that do not, in other words, amount to doing the public’s business in any substantive way.

Prior to this year, the study of New Hampshire’s Right-to-Know Law focused on two forms of government activity: meetings and records. If communication dealing with public business among a quorum of a public body was oral, it was usually deemed to be a “meeting.” If such communication was written, it was deemed to be a “record.”

Under RSA 91-A:2, I, “meeting” was defined as “the convening of a quorum of the membership of a public body . . . to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.” It was easy to fit oral communications within this definition because most such communications occurred at the same place, where the participants could communicate contemporaneously face to face. Even communications over the telephone were easy to fit into this category because they were contemporaneous. While it was conceivable for members of a public body to communicate with each other in writing, such instances were rare because it was usually too much bother. To the extent that such communication did occur, it was difficult to envision the correspondence — usually carried on over a period of days or weeks — as a meeting.

With the advent of the computer age, which brought with it the Internet, e-mail, voice mail, chat rooms, instant messaging, etc., it became increasingly difficult to find where the new methods of communication fit between the “fish” of meetings and the “fowl” of records. The rapid acceptance of such methods, however, made it imperative that some means of doing so be found. Local officials and board members (municipalities, school boards, boards of adjustment, etc.) quickly recognized the convenience of the new forms of communication and embraced them. Most of these people are volunteers with “day jobs,” who are only available to perform their public duties in their spare time. They welcome anything that will make their lives easier. Use of e-mail, in particular, to communicate between and among members of local public bodies is widespread; in some instances it displaces even the telephone as the preferred medium of communication. Using e-mail, members can communicate with each other without having to be available at the same time and, yet, do so much faster than they can by relying on traditional methods of written communication, e.g., through the Post Office.

As the use of e-mail communication among members of public bodies became ubiquitous, it gave rise to a fear among some members of the public that their business was being done in secret in violation of the New Hampshire Constitution and contrary to the spirit and purpose of the Right-to-Know Law.

Given such concerns, it was inevitable that someone would argue that communications by e-mail amounted to the conduct of illegal meetings. In the matter of Miller v. Dreyer (Rockingham County Superior Court, 03-E-152), the petitioners sought information concerning the Fremont School Board’s hiring of a superintendent. They asserted, among other things, that “[t]he members of the school board have been communicating by e-mail in violation of the requirement that public meetings be noticed.” The petitioners apparently became aware of the e-mails because the board treated them as public records and provided the petitioners with printouts. The printouts were not physically attached to the minutes of public meetings, however, and petitioners argued that the failure to do so should also be deemed in violation of RSA 91-A. The presiding judge (Smukler, J.) ruled: “[b]ecause RSA 91-A does not require such written communications to be physically attached to the minutes and because the communications have otherwise been disclosed in accordance with the right-to-know law, the petitioners’ [sic] have not sustained their burden on this claim.”[6] Since the petitioners’ original claim on this point was that the e-mail communication constituted illegal meetings, it appears that Judge Smukler’s denial of this claim placed e-mail communications in the category of “records” as opposed to the category of “meetings.”

This interpretation was reinforced a month later in Judge Smukler’s response to the school board’s motion for clarification of his April order. In its motion, the board argued that “e-mail communication between a quorum of the board is not public unless a [sic] the board makes a decision during the communication.”[7] In ruling on this claim, Judge Smukler stated that “[t]o the extent that the respondent is claiming that the e-mail correspondence in question is not a ‘meeting,’ the court agrees.”[8] Judge Smukler went on to state that:

e-mail correspondence . . . is more akin to letters or memoranda circulated between board members. Thus, such written communications between board members are more in the nature of public records governed by RSA 91-A:4. Consequently, the petitioners are entitled to access, not because such communications constitute a “meeting,” but rather because the substantive written communications between board members are RSA 91A:4 public records.[9]

Despite Judge Smukler’s rulings in Miller, many practitioners continued to advise that e-mail communications among a quorum of a public body probably constituted illegal meetings.[10]

When the Right-to-Know Study Commission first met in the fall of 2003, it soon began wrestling with this issue. Of the new forms of communication, e-mail was by far the most prevalent, so the Commission began by considering how this form of communication could best be regulated so as to protect the public’s right to know as far as practicable without unnecessarily constraining the ability of public bodies, particularly in local government, to perform their duties on behalf of the citizenry.

Most members of the Commission believed that whether e-mail falls into the “meetings” or the “records” category, its use for communication on substantive matters presented a danger to the public’s right to know that needed to be addressed.

The Commission’s first effort to regulate communications among members of public bodies outside public meetings[11] was to recommend addition of a new paragraph to RSA 91-A:2, which would have provided:

Any communications outside a meeting, in whatever form, among a quorum of the membership of such a body which bear upon such matters shall be disclosed fully at the next meeting of the body before any decision may be made, including a decision not to act. If such communications are in writing, copies or printouts shall be made a part of the minutes. Communications among less than a quorum of members need not be disclosed. Sequential communications on the same matter shall be disclosed if the total number of members participating would constitute a quorum if meeting contemporaneously. Disclosure shall be made by those who know, or should know, that the number of participating individuals constitutes a quorum.[12]

This provision would have codified Judge Smukler’s ruling that such communications fell into the category of public records, but would have gone further and ensured their retention by requiring their inclusion in the minutes of a public meeting. The Commission recognized that classifying such communications as governmental records would alone not “fully solve the problem because there is no guarantee that such records would be retained for an appreciable length of time. E-mail in particular tends to be ephemeral.”[13]

The Study Commission’s recommendations were embodied in House Bill 626 and initially referred in 2005 to the House Judiciary Committee, which held it over for interim study until the 2006 session. Before House Bill 626 was considered by the full House, the Judiciary Committee recommended that the language concerning sequential communication be removed.

When the House of Representatives passed House Bill 626 in February 2006, the provision concerning communications outside public meetings was placed in a proposed new §2-a, which was worded as follows:

I.          Any communications outside a meeting, in whatever form, among a quorum of the membership of a public body which bear upon matters over which the body has supervision, control, jurisdiction, or advisory power shall be disclosed at the next meeting of the body before any decision may be made, including a decision not to act. If such communications are in writing, copies or printouts shall be made a part of the public record. Communications among less than a quorum of members need not be disclosed. Communications described in RSA 91-A:2, I(a)-(d) are not subject to the disclosure requirements of this paragraph.

II.         Communications outside a meeting shall not be used to circumvent the spirit of this chapter.[14]

After passage by the House of Representatives, House Bill 626 was referred to the Senate Public & Municipal Affairs Committee, which ultimately recommended amending paragraph II of §2-a to re-address the concern about sequential communications. After amendment, the paragraph said: “[c]ommunications outside a public meeting, including but not limited to sequential communications, shall not be used to circumvent the spirit of this chapter.”

The 2006 Senate laid House Bill 626 on the table, effectively killing it. It did so primarily because some members of the Senate were concerned that the new disclosure requirements would be unworkable given the way the Senate’s own committees functioned, but also because the idea of any communications outside a public meeting had become controversial.

Right-to-know legislation was again presented during the 2007 legislative session. The Commission, which by then had become an oversight commission,[15] submitted most of its recommendations for revision to RSA 91-A in House Bill 377. As proposed, House Bill 377 did not include any provision concerning communications outside a public meeting. Instead, such communications were addressed in a separate bill (House Bill 82), which stated:

I.          Any communications, in whatever form, outside a meeting among the members of a quorum of the membership of a public body which bear upon matters over which such body has supervision, control, jurisdiction, or advisory power shall be disclosed at the next meeting of the body before any decision may be made, including a decision not to act. If such communications are in writing, copies or printouts shall be made a part of the public record. Communications among less than a quorum of members need not be disclosed.

II.         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 of this chapter.

III.       The disclosure requirements of paragraphs I and II shall not apply to communications specifically exempted from the definition of a “meeting” under RSA 91-A:2, I.[16]

The House Judiciary Committee reported House Bill 82 as inexpedient to legislate and instead unanimously recommended its own amendment to House Bill 377. That amendment would have virtually prohibited any communications outside a public meeting among a quorum of a public body. However, the House as a whole rejected the Judiciary Committee’s amendment and passed House Bill 377 without any provision for communications outside a public meeting. By the time the proposed legislation reached the Senate, the Public & Municipal Affairs Committee of that body added its own amendment proposing a new §2-a. The Senate’s amendment would have limited communications outside public meetings to those dealing only with the most innocuous administrative or housekeeping matters. The Senate passed the bill with that amendment. The House members of the resulting committee of conference, however, refused to go along with the Senate. The Senate and House representatives were unable to reach a compromise; accordingly, the legislation again died.

This year, the Legislature and Governor Lynch were ready to accept the compromise that became the current version of §2-a. The legislation passed both chambers on voice votes with no amendment and no debate, and was signed by the Governor on July 2, 2008.

As previously stated, the current law embodied in §2-a forbids deliberation outside a public meeting. This essentially recognizes that there are some communications that do not rise to the level of deliberation. The term “deliberation,” although not defined in RSA 91-A, 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.”[17] In other words, it means discussion with the intent of reaching a decision about something.

To increase the likelihood that if public bodies err on this issue they will do so on the side of caution, §2-a, II provides that “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 and purpose of this chapter as expressed in RSA 91-A:1.”

Note that for such discussions to rise to the level of “deliberations,” it is not necessary for the participants to actually reach a decision if their discussions are aimed in that direction. A typical example would be the chair of a town’s board of adjustment sending an e-mail to all other members asking for recommendations concerning the board’s budget in order to present an appropriate request to the town’s budget committee. Under the circumstances, the chair has not thereby “convened” a gathering of the board to discuss the proposed budget contemporaneously; therefore, no meeting would be taking place by virtue of their exchange, even if the members were to copy all other members with their replies. Nonetheless, even if no consensus were reached, they would probably be deliberating because the intent of the correspondence would be to coalesce all points of view into a recommendation to be presented as the ZBA’s advice to the budget committee.

Another example: 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 probably 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 two were to go further and start discussing the pros and cons of the ring job, they would clearly be “deliberating.”

The Oversight Commission recognized that there will probably be a fine line in some cases between innocent non-deliberative communication and illegal deliberations. And there may be a tendency among some members of public bodies to walk a bit too close to that line, either by making tongue-in-cheek categorizations of their discussions as non-deliberative,[18] or by skirting the quorum issue. For example, board member Alice e-mails board member Ben, who forwards to board member Corey, etc. By the time the issue is brought up for a vote at a public meeting, there may be no need for discussion because all deliberation had effectively taken place through the sequential e-mails before the meeting. The result of the pre-meeting exchange may well be that decisions are made with the members of the public being left completely in the dark as to the reasons for the body’s actions.

It is just this sort of scenario that led to the inclusion of paragraph II. If it is apparent from the facts of a given case that members of a board are intentionally circumventing the spirit and purpose of the law — in other words, if they are trying to do the public’s business out of the view of the public — their actions will be deemed illegal and will probably render the participants subject to sanctions under RSA 91-A:8.

The situation is a bit more involved if the communication is oral and contemporaneous. For example, sharp-eyed readers may conclude that the scenario with the two board members and the ambulance discussed above is typical of “[a] chance, social, or other encounter not convened for the purpose of discussing or acting upon . . . matters [over which they have supervision, control, jurisdiction, or advisory power],” and that, therefore, it does “not constitute a meeting if no decisions are made regarding such matters.”[19] Under §2-a, I, such encounters are arguably not subject to the prohibition against deliberations if no decisions are made. Participants who do deliberate during these encounters must realize, however, that they are treading on thin ice. If carried too far, deliberations implicitly allowed by §2-a, I, could quickly run afoul of the no circumvention language of §2-a, II.

It will often be difficult to discern when illegal deliberations have started during a series of communications that began innocently. The best advice that can be given on this point is that if you start to feel uncomfortable, you probably should call “time out,” stop doing what you are doing, and wait until a public meeting to go any further. 

Adherence to the principle of open government can be cumbersome, and it is sometimes tempting to take shortcuts in the interest of expediency — often with the most innocent of intentions. Too much “play in the joints,” however, can cause any piece of machinery to wear out and become untrustworthy. It is particularly important for members of public bodies to remember that:

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.[20]

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