N.H. High Court Rules Public Meeting Discussion Exempt from Right-to-Know Laws Disclosure

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.)

Pa. Court Orders State Police to Produce Redacted Records to AP

Image via WikipediaThe Commonwealth Court of Pennsylvania this week ordered State Police to turn over off-duty work records to the Associated Press under Pennsylvania's Right to Know Law [1 Act of Feb. 14, 2008, P. L. 6, 65 P.S. secs. 67.101-67.3104].

As reported on the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org), the 14-page decision of the Court in Pennsylvania State Troopers Assn. v. Marc Scolforo (Case No. 1623 C.D.2010) said Social Security Numbers, home addresses, and the times and places of the off-duty work by the law enforcement personnel may be redacted, but the records themselves are subject to release under the Right to Know Law.

The State Police Assn. had challenged production of the records, dating back to 2005, citing the Right to Know Law exemptions under  Sec. 708(b)(10)(i)(A) and Sec. 708(b)(17), which exempt records evidencing pre-decisional deliberations and non-criminal investigatory records, respectively. In siding with the earlier decision by the Office of Open Records ordering production of the records, the Court said the Association had not demonstrated state police employees would be subject to substantial and demonstrable harm were the records to become public.

Granite State Gov. Defends Right to Know Law

Image via Wikipedia

New Hampshire Gov. John Lynch has derailed a bill that would have taken the teeth out of the Granite State's Right-to-Know Law [RSA 91-A].

Associated Press reports that Lynch, a Democrat, vetoed HB 53, which he claimed would have re-defined public body to exempt school superintendents, town administrators and other executives and staffers from the provisions of the statute's open-meeting requirement. Public access to government records also would have been restricted by the measure, according to Lynch.

Lynch said any changes to the right-to-know law must be narrow and free from ambiguity.

N.H. High Court Boosts Right-to-Know Law

Image via Wikipedia

In a Jan. 29 unanimous decision in Professional Firefighters of New Hampshire v. Local Government Center, Inc. ("LGC") (Case No. 2009-215), the N.H. Supreme Court ordered a private entity that represents public agencies to release its salary information pursuant to a request under the Granite State's right-to-know law [RSA ch. 91-A (2001 & Supp. 2009)].

Chief Justice John Broderick rejected the LGC claim that its salary data was not covered by the statute, writing that information that reveals how an organization spends taxpayer dollars to conduct public business "is essential to the transparency of government, the very purpose underlying the Right-to-Know law." The firefighters union sought the salary figures from LGC, which represents municipalities and schools, to follow how taxpayer money was being spent by LGC on health insurance. The parties have been embroiled in an eight-year fight as the firefighters union has tried to obtain documents to gauge whether the LGC has been diverting money targeted for health insurance for other purposes.

The Supreme Court denied the union's request for attorneys' fees.

Allentown Sues Daily & State Agency Over Records Disclosure Order

Image via Wikipedia

The city of Allentown, Pa. is suing The Morning Call, a Tribune Co.-owned daily newspaper, and the Commonwealth's public records office that ordered the city to release public documents requested by the paper under Pennsylvania's right-to-know law (Act 3 of 2008).

The suit filed in Lehigh County Court is in response to an initial request by Call reporter Jarrett Renshaw that sought Email messages and schedules for Mayor Ed Pawlowski, Managing Director Ken Bennington and Joyce Marin, director of the Department of Community and Economic Development. The city argued compliance required prepayment of $898 to cover the cost of redacting and photocopying 3,592 pages.

The public records office decided the city failed to justify the need for redacting the public records and that even if such an action were required, why it could not be performed electronically in less time and at lower cost. The agency agreed to review its initial ruling, but declined the city's request for a new hearing and recusal of the hearing officer, whom the city believes is biased because she used to work for a prominent Pennsylvania media lawyer with an active right-to-know law case load.

Act 3 of 2008, which took effect in January 2009,  presumes government documents are public records. With apologies to Billy Joel: "Well, we're waiting here in Allentown for the Pennsylvania (records) we never found..."