Cordell Johnston posed a question to a group of Derry board and committee members. “If you send an e-mail and it says, ‘Did you see the Cowboys versus the Giants last night?’ is it subject to 91-A?”
“No,” he said. “It’s not the Council acting ‘in furtherance of its official function.’”
Several board, committee and Town Council members went back to school this past Monday night for a seminar on the Right-To-Know Law, also known as RSA 91-A. Johnston, an attorney with the New Hampshire Municipal Association, walked newcomers through the basics of 91-A and helped seasoned board members with specific questions and issues.
Johnston began by demystifying the ordinance. “A lot of people have the sense that 91-A is a confusing jumble of ‘stuff,’” he said. “It’s really not, it’s rather straightforward. But you need to spend time reading it.”
In particular, Johnston said, “You need to read the section on your particular issue carefully. Don’t skip a word.”
Once they’ve read that section, Johnston urged the board members to use their common sense. “If an answer seems crazy to you, it’s not the right answer,” he advised.
He told members of boards and committees that it doesn’t hurt to cooperate, whether with the press or a fellow townsperson seeking answers. “Technically sometimes you don’t have to respond,” he said. “But sometimes it makes sense to do it anyway.”
But he also advised board members not to be intimidated by a request. The law allows them up to five business days to respond, he said. “Within five days you need to respond, to deny their request, or to give them an estimate of how long it will take,” he said.
Former Councilor and current Planning Board member Michael Fairbanks attended the meeting and asked about correspondence and notes from his time on the Council. “I have files and files, a lot of handwritten notes,” he said.
Johnston responded, “RSA 91-A doesn’t tell you how long to keep them. But RSA 33-A says that records that are required to be kept are to be kept by the public body. You don’t have to keep anything,” he told Fairbanks.
“Unless it’s something you’re keeping for sentimental reasons, get rid of it,” Johnston said.
For those still on the Council, personal notes are exempt from disclosure, he added.
The Derry Council has been criticized in the past for going out to the Halligan Tavern after meetings, and more recently for members dining out together. Johnston said that 91-A does not forbid socializing. “Is it wrong to attend a birthday party, a Super Bowl party, a barbecue? No, unless you start talking about Council business.”
It all hinges on what constitutes a meeting, Johnston said. According to the ordinance, a meeting is any time there is a convening of a quorum, and town business is discussed. “You’re here tonight,” he told the six Councilors attending the class. “Is this a ‘meeting’? No, because you’re here to learn. But if we started talking about your proposal for a new whatever, then it would become a meeting.”
So what is a “meeting”?
If an e-mail from a constituent goes to one member of a board, it is not considered a “meeting,” Johnston said. The “meeting” part comes if the recipient forwards the communication to other members.
“What if it’s not forwarded physically, but shared verbally?” Michael Layon, chairman of the Survey Committee, asked.
Johnston guided them to the definition of “information,” which is “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic or other physical form.” The spoken word is not a “physical form,” he said. “If I give you a copy, now it’s in physical form.”
If Cardon has a proposal for a parking ordinance and sends it to the other six members, it is now a governmental record, Johnston said. “But it’s not a meeting until somebody replies.”
Marc Flattes, a member of the Planning Board, Economic Development Committee and Energy and Environmental Advisory Committee, asked about technology such as Google Living and Dropbox, where members can participate in a living document online.
‘That’s a nuance,” Johnston replied. “It’s not necessarily a meeting, but it is a communication outside of a meeting.” He advised against using Google or Dropbox, noting that this form of communication violates the spirit of 91-A, which requires these discussions to be held in public.
“People tell me, ‘It’s the way everyone does business these days,’” Johnston said. “And my response is, ‘It’s not a business, it’s a town.’”
Cardon asked about text messages, and Johnston said “If there are texts back and forth between members of a government body, it’s a communication. It has to be maintained at the office of the public body. If you don’t, you will at some point end up in a lawsuit. The short answer is, don’t do it.”
Johnston said smaller housekeeping issues are exempt. “If you write, ‘We need to schedule a special meeting. Are you available Thursday night?’ that’s all right. You’re not talking about something of substance that should be brought before the public body.”
Council member Richard Tripp said he was secretary of another town group, and that he often sent out minutes for review.
“That,” Johnston said, “gets tricky. If each member sends their corrections back to you and not to anyone else, it could work.”
But Tripp said, “I’ll just send them out and say, ‘See you at the meeting.’”
And you can always call the NHMA, Johnston said. “A quarter to a third of the questions we get relate to Right-To-Know,” he said.