New Hampshire Supreme Court Building (Photo credit: Wikipedia)"If a tree falls in the woods and no one is around to hear it, does it make a sound?" is a golden oldie that has been pondered by Philosophy 101 students since time immemorial.
Perhaps the New Hampshire Supreme Court should tackle the question, having just ruled in Professional Firefighters of New Hampshire ("PFFNH") v. The New Hampshire Local Government Center ("NHLGC") (Case No. 2011-550) that just because communications by public officials may occur during a public meeting in a public place, it doesn't mean the communications are not confidential if no member of the public actually heard them.
The PFFNH sought minutes of 14 public local government meetings that occurred during 2000-2009 under the Granite State's Right to Know law [RSA Chapter 91-A], but received redacted documents in response under a claim that the excluded portions were exempt as privileged attorney-client communications. Pursuant to RSA 91-A:5 IV, "confidential information" is exempt from the general disclosure requirement, and the burden of proving that information is confidential is on the party seeking to prevent disclosure.
The plaintiff contended the redacted portions should be made available because the interactions with counsel occurred in public and the defendant made no effort to protect the privacy of the communications at issue by, for example, voting to meet in executive session. The N.H. High Court, however, sided with the lower court decision that: "The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation." In other words, if the utterer of a communication reasonably believes that only privileged persons will hear the content of a communication, the communication can be confidential.
(Tip of the hat to the Reporters Committee for Freedom of the Press [www.rcfp.org] for shining a spotlight on this decision.)