HB 108-FN-LOCAL - AS AMENDED BY THE SENATE
05/27/2021 1711s
2021 SESSION
21-0315
08/06
HOUSE BILL 108-FN-LOCAL
SPONSORS: Rep. Ulery, Hills. 37; Rep. Spillane, Rock. 2; Rep. McGuire, Merr. 29; Rep. T. Lekas, Hills. 37
COMMITTEE: Judiciary
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AMENDED ANALYSIS
This bill:
I. Requires that for meetings in nonpublic session where the minutes or decisions were determined to not be subject to public disclosure, a list shall be kept which shall include certain information. The list shall be made available for public disclosure.
II. Requires that sealed minutes of a nonpublic session related to the acquisition, sale, or lease of real or personal property be released once the transaction closes or the public body decides not to proceed.
III. Exempts materials falling within the attorney-client privilege or attorney work product doctrine from the provisions of RSA 91-A.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05/27/2021 1711s 21-0315
08/06
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Right-to-Know Law; Nonpublic Sessions. Amend RSA 91-A:3, III to read as follows:
III. Minutes of meetings in nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes of such sessions shall record all actions in such a manner that the vote of each member is ascertained and recorded. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present taken in public session, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply. For all meetings held in nonpublic session, where the minutes or decisions were determined to not be subject to full public disclosure, a list of such minutes or decisions shall be kept and this list shall be made available as soon as practicable for public disclosure. This list shall identify the public body and include the date and time of the meeting in nonpublic session, the specific exemption under paragraph II on its face which is relied upon as foundation for the nonpublic session, the date of the decision to withhold the minutes or decisions from public disclosure, and the date of any subsequent decision, if any, to make the minutes or decisions available for public disclosure. Minutes related to a discussion held in nonpublic session under subparagraph II(d) shall be made available to the public as soon as practicable after the transaction has closed or the public body has decided not to proceed with the transaction.
2 Access to Governmental Records and Meetings; Meetings Open to the Public. Amend RSA 91-A:2, III to read as follows:
III. A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
[(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency" means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting.]
(a) A physical location is not required for any meeting, provided the meeting complies with the provisions of this paragraph.
(b) If a meeting has no physical location, public access shall be provided to the public by telephone, and additional access may be provided by video or other electronic means.
(c) If a meeting has no physical location, public notice of the meeting, with all information necessary to access the meeting telephonically and by other means, shall be given as provided in this chapter. The notice shall provide a mechanism for the public to alert the public body during the meeting if there are problems with access. The meeting shall be adjourned if the public is unable to access the meeting because of any technical communication problems experienced by the provider of the communication media.
(d) Each member participating electronically or otherwise [must] in a meeting required to be open to the public shall be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location, if the meeting has a physical location. Any member participating in such fashion shall identify the location from which the person is participating and the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
[(d)] (e) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
[(e)] (f) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.
3 Access to Governmental Records and Meetings; Meetings Open to the Public; Version Effective July 1, 2022. RSA 91-A:2, III is repealed and reenacted to read as follows:
III. A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency" means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting. Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.
4 New Paragraph; Right To Know; Exemptions. Amend RSA 91-A:5 by inserting after paragraph XI the following new paragraph:
XII. Records protected under the attorney-client privilege or the attorney work product doctrine.
I. Section 1 of this act shall take effect January 1, 2022.
II. Section 3 of this act shall take effect July 1, 2022.
III. The remainder of this act shall take effect upon its passage.
21-0315
12/8/20
HB 108-FN-LOCAL- FISCAL NOTE
AS INTRODUCED
AN ACT relative to minutes and decisions in nonpublic sessions under the right-to-know law.
FISCAL IMPACT: [ ] State [ ] County [ X ] Local [ ] None
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
METHODOLOGY:
This legislation requires a public body to keep a list of all minutes of non-public sessions that are not subject to public disclosure, including the date and time of each non-public session, the statutory exemption that was the basis for the non-public session, the date of the decision to withhold the minutes from public disclosure, and the date of any subsequent decision to make the minutes available. The New Hampshire Municipal Association indicates compiling and maintaining such a list will require additional staff time for municipalities. This may result in additional expenditures, but it will depend on the specific circumstances of each municipality. Therefore, the Association is not able to estimate the amount of additional expenditures. There will be no effect on municipal revenues.
The Department of Justice expects the bill would likely result in additional requests for legal advice and training to be provided by existing Department of Justice attorneys in order to make state boards and agencies aware of the new requirement and how to comply. Those requests would be handled by the Civil Bureau and could be done within the current budget resulting in no fiscal impact to the Department.
The New Hampshire Association of Counties states there would be no fiscal impact to the counties.
AGENCIES CONTACTED:
Department of Justice, New Hampshire Municipal Association and New Hampshire Association of Counties