Concerning the importance of New Hampshire citizens Right-to-Know what it’s government is up to, our State Supreme Court has stated the following: "Public knowledge of the considerations upon which governmental action is based and of the decisions taken is essential to the democratic process."
What a beautiful sentiment. However, a recent decision by the court, a decision which defies logic and common sense, we now know the court could never have meant a single word of that bold and beautiful statement; that, or if the statement were ever true, the court’s recent decision surely has now made the statement it obsolete.
The court recently upheld Rockingham Superior Court’s decision that found there was no requirement in RTK that a vote to seal non-public meeting minutes be made public.
First, this conclusion by our courts is simply untrue. RTK law specifically states “Unless a specific statute authorizes a body to deliberate in non-public session on a particular question, public bodies must deliberate in public. RSA 91- A:3, I(a).” There is no statute I am aware of that allows public bodies to either enter or deliberate in non-public session the question of whether or not to seal nonpublic meeting minutes or allows them to vote to do so.
Moreover, public bodies are only allowed under by statute to seal minutes of nonpublic sessions for three very specific reasons: 1. If the release of the information would Likely adversely affect the reputation of any person other than a member of the body or agency itself; 2. Render the proposed action ineffective; or 3. Pertains to terrorism.
Let's look for just a moment what the court's absurd decision means. The decision means the public has no right to know if the public body actually ever voted to seal the non-public minutes. The public can never know how any individual member of the public body voted. No one will ever be able to verify that a ⅔ majority vote (required by law to seal the minutes) was actually reached. And, It's now impossible for anyone to verify the public body had a legally justifiable reason to seal the minutes (there are only three).
The above statement are all true because both RSA 91-A:3 or:5 and RSA 42:1-a, II make it a violation of a town officer’s oath of office for the officer to divulge to the public any information which that officer learned by virtue of his official position or in the course of his official duties. The penalty for divulging nonpublic information, information that has been sealed from the public eye, is punishable by dismissal! Given all of this, how could any public official ever even inform the public the minutes were sealed? They couldn't.
Since the time I filed the petition against Newmarket School District, the petition which this commentary is all about, the State Legislature has since clarified the law and now explicitly requires the vote to seal the minutes of non-public concerning the sealing of non-public minutes.
I am of the opinion, however, that the law needed no clarification. The law has always been crystal clear to me and many others: “Unless a specific statute authorizes a body to deliberate in non-public session on a particular question, public bodies must deliberate in public."
The reason this is such a big deal for me is that there are some public bodies, like the Newmarket School District, who are willing to lie and cheat the system and hold non-public meetings without ever recording any meeting minutes, and if ever asked when to produce those minutes for inspection, would lie and claim the minutes were sealed and unavailable.