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December 25. 2012 9:54PM

Right-to-Know revision raises red flags

Even as two changes to state law designed to improve New Hampshire residents' access to government records are just days away from being enforced, one 2013 legislative service request has the potential to create new restrictions.

One law passed earlier this year establishes new civil penalties that can be brought against public officials who are found to have violated the state's Right-to-Know law. A second law points out that arrest records are public information in New Hampshire, and subject to public disclosure laws. It also specifies the minimum amount of information that police departments must provide to the public regarding each arrest. Another change, which says the actions of public library trustees and employees must be subject to public disclosure, has been in effect since July.

But an LSR, or legislative service request, put in by State Rep. Mary Beth Walz, D-Bow, about the definition of "meeting" under the state's Right-to-Know law, already has some legal observers expressing concerns.

Currently, when town or state boards and committees review written legal advice or opinions from their legal counsels, the attorney providing the advice is required to be in the room or on the phone communicating with the governmental body. But 2013 LSR H-0451 would change that, and allow boards to review and discuss the legal advice without the attorney present.

Walz said she has put in the request to help smaller municipalities who share a single town counsel.

"A lot of these attorneys represent multiple communities," said Walz. "It can be difficult for the local officials to schedule the attorneys to either appear at a meeting or take part via phone. This can become a problem when there is an issue that needs to be discussed, but there's a scheduling conflict. This would help those boards move ahead with the discussions without the attorney taking part."

Red flags raised

Because this advice would center around legal matters, the discussions could be held in executive, or closed-door, session. That has raised some red flags among legal affairs experts.

"It seems like an attempt to legislate around the decision by the Supreme Court of New Hampshire in the case of Thomas Ettinger vs. the Town of Madison Planning Board," said Gregory Sullivan, an attorney with Malloy and Sullivan in Manchester, who serves as legal counsel for the New Hampshire Union Leader. "It is completely contrary to the spirit and intent of Chapter 91-A (the state's Right-to-Know laws)."

Sullivan is referring to a state Supreme Court decision from December 2011. In June 2009, the Pomeroy Limited Partnership received conditional approval from the Madison Planning Board to convert the buildings on its property to condominium ownership, and convey part of the property to the Nature Conservancy. In January 2010, neighbors whose property abuts the Pomeroy property requested a public hearing to allow them to challenge the approval of the condominium plan. The board scheduled a public hearing to consider whether to grant final approval of the Pomeroy application, and an attorney representing the neighbors appeared at the hearing. At the scheduled time of the hearing, the Planning Board and its administrative assistant went into a private session for 30 minutes, where members read and discussed emails from the town's attorney, a memo summarizing legal advice given over the phone from town counsel to the administrative assistant, and letters from the neighbor's attorney. The Board reopened the hearing at 7:34 p.m. and, after hearing the plaintiffs' attorney on the matter, granted final approval to the application.

The neighbors filed a petition in superior court, arguing the private session violated the state's Right-to-Know Law.

Planning Board members argued its members were permitted to read a letter from counsel and discuss its contents in a private session under the "consultation with legal counsel" exclusion from the definition of a "meeting" in the Right-to-Know Law, saying a consultation with legal counsel includes discussions of the advice of its lawyer even if that lawyer is not present during the discussion.

The Supreme Court disagreed, writing in its decision, "if the legislature intended the exclusion to cover not just consultations with legal counsel but also 'consideration or discussion of the advice of counsel,' the statute would have said as much."

A question of trust

Walz said she put in the legislative request based on concerns she has heard from communities regarding scheduling discussions centered around the availability of their attorneys, not as a way to circumvent the Right-to-Know law.

"I think it would make the process easier to hold these discussions," said Walz.

"On the face of it, I think this sounds like a good idea," said House Majority Leader Steve Shurtleff, D-Penacook. "I know this is an issue local boards and committees are dealing with, and this sounds like it would address the problem."

Shurtleff said he could understand the concerns some may have giving boards another opportunity to go into executive session.

"At some point, you have to trust these officials not to abuse it," said Shurtleff."

New laws

One law that goes into effect in January adds a new section to RSA 594, which defines arrest records as "governmental records" and therefore subject to existing public disclosure laws. The law states that arrest records must contain at least the name of the individual who was arrested, the name of the arresting officer or officers, a description of why and how the arrest was made, the alleged crime and if the arrest was made pursuant to a warrant.

The law allows police to withhold the identities of arresting officers if there is good reason to believe identifying them would "not serve the public interest," such as if an officer is working undercover.

"This is something that most police departments were doing anyway. so most won't have to make any adjustments at all," said Sunapee Police Chief Dave Cahill, who tracks legislation for the New Hampshire Association of Police Chiefs.

$250 to $2,000 fines

Another law that takes effect in January spells out the penalties for public officials who withhold information in violation of a Right-to-Know request, and adds a new civil penalty ranging from $250 to $2,000.

The new law says if the court finds an "officer, employee, or other official of a public body or public agency" violates any part of the Right-to-Know law in "bad faith," the court can impose a civil penalty of not less than $250 and not more than $2,000.

"These are positive developments in the public's effort to know what the government is up to," Sullivan said.

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Paul Feely may be reached at pfeely@unionleader.com.

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