N.H. high court rules communications with counsel in empty public meeting exempt from Right-to-Know Law

The New Hampshire Supreme Court affirmed a lower court's decision to deny a firefighters' association access to redacted portions of minutes from over a dozen public local government meetings held between 2000 and 2009. The court said that because no one was in the audience at the 14 public meetings, minutes involving the government agency's attorney are confidential.

The New Hampshire Local Government Center produced a majority of the documents requested by the Professional Fire Fighters of New Hampshire (PFFNH), but redacted portions under a claim of attorney-client privilege. The Right-to-Know Law exempts "confidential information" from disclosure, which includes communications protected by the attorney-client privilege.

The court explained that a communication is "confidential" where the person communicating "reasonably believes that no one will learn the contents of the communication except a privileged person."

The court ruled that because no one from the public was actually present at the meetings, the Center was reasonable to assume that its oral communications with counsel were made in confidence.

“As the superior court aptly observed, ‘The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation,’” the opinion stated.

PFFNH President David Lang said the association's goal is to find out where millions of their tax dollars are going.

"We should have the right to ask these questions," Lang said. "We are members of the public, and this is public information."

Citing provisions in the Right-to-Know Law that provide for access to minutes of public meetings, the firefighters' association argued that the redacted portions should be released because the communications with counsel took place during meetings that were open to the public and the Center took no precautions to ensure the privacy of those discussions.

The court disagreed.

“[B]ecause no third persons were present at the meeting, [the Center] was not required to take any further precautions – such as entering into executive session – to ensure the communications were private,” the opinion stated.

The Center’s attorney, William Saturley, said that while the Center acknowledges it is subject to the Right-to-Know Law, people also need to be able to consult with their lawyer in confidence.

“The Local Government Center could have gone into executive session if the public was there,” he said. “Why make them do that mechanical step if no member of the public was present? The information still would’ve been confidential.”

Lang said the Center redacted everything their lawyer said including the lawyer's name.

"He could have said, 'Hey, look out the window,' and that is not privileged," he said. "But we don't know because they redacted everything."

Lang said the Center "won on a mere technicality."

"Minutes are a re-run of what took place. If it was on TV and no one was watching could they redact or mute parts of that? We don't think that's reasonable," he said. "Had one member of the public entered the room, then the rules would have been different. We find that confusing."

Saturley said he finds the ruling appropriate and proper.

“It’s a technical working out of a wrinkle,” he said. “The ruling hasn’t affected the public’s access to records at all. It doesn’t do any harm to the Right-to-Know Law.”

Related Reporters Committee resources:

· New Hampshire – Open Government Guide: 2. Discussion of each exemption.

· New Hampshire – Open Government Guide: (2). Are minutes public record?