27 October 2007

KingCast presents: Draft 2007 Right-to-Know Commission Report.

I'll print the full text of what I received in the comments later, but this is precisely the point I am making in KingCast v. NH AG Kelly Ayotte et al., Grafton County 07-E-268:

"Due to the failures of Hotlse [sic KingCast catches another typo] Bill 626 (2006) and House Bill 377 (2007), the New Hampshire Legislature has yet to accomplish the tasks requested by the Supreme Court in the Hawkins decision and embodied in the Commissions' enabling legislation.

The members of the Commission strongly believe that, unless key stakeholder groups are willing to actively participate in the public debate and are willing to compromise their entrenched positions, the current weaknesses in the Right-to-Know law will never be corrected by legislative action, and the issues may be decided by the Supreme Court on a case by case basis."

September 7, 2007 (4:53pm)


My thanks to Nashua Alderman Fred Teeboom for sourcing that for me as I continue to wait for a copy of the 2006 report, as Defendant Ayotte appears to be in per se violation of RSA 91-A (you know, the Right-to-Know Statute itself) for failure to timely respond to my inquiry as noted in yesterday's post.

1 comment:

Christopher King said...

*** THIRD DRAFT ***

Report of the New Hampshire Right-to-Know Oversight Commission

Pursuant to RSA 91-A:15

The New Hampshire Right-to-Know Oversight Commission is the successor to the Right-to-Know Study Commission, which was formed in 2003 pursuant to N.H. Laws 2003,287(House Bill 606). The enabling legislation for the Study Commission was necessitated by the New Hampshire Supreme Court decision in the case of Hawkins v. NH. Dep't. of Health and Human Services.11 That case arose out of a request for computer records of individual Medicaid recipients' dental bills. After deciding the issues presented, the Court noted the difficulty of applying the existing provisions of RSA 91-A (Right-to-Know Law) to modem methods of communications and record keeping, and urged the legislature to bring the law into the 21st century by providing for the increasing use of electronic communication and computerization of government records. The Right-to-Know Study Commission was comprised of public officials and private citizens appointed by the Governor and Council, the House and Senate, and by several organizations concerned with access to the workings of government at all levels.

The Oversight Commission has a similar composition.22

The term of the Study Commission ended with the submission of a fmal report on October 29, 2004. That report recommended several changes to RSA 91-A. The following were the highlights of that proposed legislation:

New definitions which make it clear that records kept on computer or other electronic means by or on behalf of public bodies are covered by the law.
Substantial amendments to provisions of the law governing meetings of public bodies and
communications among their members, e-mail communications among members of a public body would not be regarded as meetings but would be treated as records subject to new rules of disclosure.

Provision for satisfying some public notice requirements through the Internet.

Clarification that records kept by third parties on behalf of public bodies are subject to disclosure.

New provisions basing retention periods on function rather than the form in which
records are kept and requiring that functional obsolescence and physical deterioration be taken into account when determining the choice of storage media and electronic file format. .

Language expanding the methods by which public bodies may provide copies of records
kept in electronic form.

The Study Commission's recommendations were embodied in House Bill 626, which was introduced in the 2005 Legislative Session, but was held over for further study. The bill passed the House of Representatives in 2006, but was tabled by the Senate.

It is the Oversight Commission's understanding that the primary reason for the failure of House Bill 626 was the manner in which it dealt with communications among members of a public body outside of a public meeting. Beginning in the fall of 2006, the Commission opted to recommend four separate pieces oflegislation.

One of these (which became House Bill 82) dealt only with communications among members of a public body outside of a public meeting.

Another (House Bill 83) limited the requirements of certain state agencies to conduct their deliberations in public.

Another (House Bill 854) dealt with remedies for violations of the Right-to-Know Law and

finally, one bill (House Bill 377) embodied the less controversial provisions of House Bill 626 considered by the Legislature in the 2005 and 2006 Sessions.

The House decided that House Bills 82 and 854 were inexpedient to legislate. However, the House Judiciary Committee recommended amendments to House Bill 377 which would deal with communications outside of a public meeting. That amendment, however, failed to gain
majority support on the floor, and the bill was passed by the House as introduced.

In the Senate, House Bill 377 was referred to the Public and Municipal Affairs Committee, which recommended a number of changes, including provisions dealing with communications outside of a public meeting. The bill, with the new amendments, passed the Senate and went to a Committee of Conference, which was unable to reach accord. Therefore, the legislation died.

House Bill 83 was passed by the House of Representatives, but with an amendment limiting its application to the Board of Tax and Land Appeals. Similar legislation applicable to the Public Utjlities [sic - KingCast catches a typo] Commission was embodied in separate legislation (House Bill 866).

Both of these bills exempted deliberative processes in adjudicatory proceedings by the two entities from the public meeting and notice provisions of RSA 91-A. Both bills were signed by the Governor and became effective July 18,2007, as Chapters 371 and 154, respectively.

Due to the failures of Hotlse [sic KingCast catches another type] Bill 626 (2006) and House Bill 377 (2007), the New Hampshire Legislature has yet to accomplish the tasks requested by the Supreme Court in the Hawkins decision and embodied in the Commissions' enabling legislation.

The primary reason for this appears to be the inability of various interest groups to agree on an appropriate means of dealing with communications among members of a public body outside of a public meeting.

Because of this, the members of the Commission believe that its primary task for the ensuing legislative session will be to ensure that all points of view are presented, aired and considered so that amendments to the law which accommodate all such points of view to the extent feasible may be recommended to the Legislature.

The members of the Commission strongly believe that, unless key stakeholder groups are willing to actively participate in the public debate and are willing to compromise their entrenched positions, the current weaknesses in the Right-to-Know law will never be corrected by legislative action, and the issues may be decided by the Supreme Court on a case by case basis.

September 7, 2007 (4:53pm)

-2-

1 1147 N.H. 376,788 A.2d 255 (2001).

2 2 RSA 91-A:12.

September 7, 2007 (4:53pm)