Category: Budget Committee

To: Budget Committee
CC: Board of Selectmen
Subject: Illegal withholding of public information

Dear Carla and the Budget Committee,

As a legal and factual matter, Carla is wrong that it is a violation of any statute to disclose the dollar amount spent per employee on health and dental benefits. That is public information that the New Hampshire Supreme Court has ruled must be disclosed.

Carla is overlooking the plain language of RSA 91-A:5-IV, the Attorney General’s Memorandum on the Right to Know Law, and New Hampshire Supreme Court precedent.

At your January 2, 2018, meeting Carla stated that she felt it was wrong to disclose per-employee health costs. She cited an email she received last year from Stephen Buckley of the New Hampshire Municipal Association (NHMA). In that email, Buckley referenced RSA 91-A:5, which lists exemptions to the Right to Know law. However, Carla did not read that section (RSA 91-A:5-IV) during the meeting, when she falsely claimed that publishing the health costs was a violation of the statute. That paragraph reads, in part:

EXEMPTIONS… Records pertaining to internal personnel practices; confidential, commercial, or financial information… and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy… [Emphasis added.]

The word “medical” here is an adjective modifying the word “files.” The law clearly refers not to per-employee medical costs but to medical files, i.e., medical records. Indeed, the New Hampshire Attorney General’s Memorandum on New Hampshire’s Right to Know Law makes this explicit on page 20: “Some, but not all, of these privileged and excluded records are included among the exemptions specified in RSA 91-A:5, e.g., medical treatment records” (emphasis added).

Only an agenda-driven, tortured reading of the statute could lead Carla to think the dollar amount spent on each employee is a confidential medical treatment record.

Buckley’s email, as read aloud by Carla on February 15, 2017, in fact does not specifically claim that the per-employee health cost itself is confidential. Buckley merely states in his email that under RSA 91-A:5-IV, some governmental records are exempt from disclosure.

As an attorney for the NHMA, Buckley is undoubtedly aware of the New Hampshire Supreme Court’s ruling in Prof’l Firefighters of N.H. v. Local Gov. Center (LGC). In that case, the Supreme Court ruled that the LGC was required to provide specific salary information, “including salary and benefit information for LGC employees” under 91-A. The NHMA is a subsidiary of LGC.

The Supreme Court wrote:

LGC argues that the trial court erred in ordering it to disclose records that identify the names and individual salaries of its private employees… LGC contends that these specific records are exempt from public disclosure under RSA 91-A:5, IV as “confidential, commercial, or financial information” whose disclosure would “constitute an invasion of privacy.” … We reject LGC’s argument… We need not specifically address whether the records are “confidential, commercial, or financial information,” because we follow Mans [v. Lebanon School Board] and conclude that disclosure of the records would not constitute an invasion of privacy.

Carla stated during the January 2 meeting that “my gut tells me that it’s wrong, whether or not it’s accurate, to put people’s names out there.”
However, in Lambert v. Belknap County Convention, the Supreme Court ruled “[w]hether information is exempt from disclosure because it is private is judged by an objective standard and not a party’s subjective expectations.”
Carla’s gut feeling is not relevant to the question of whether disclosure is legal.

The New Hampshire Constitution states that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” This right is codified in RSA 91-A, the Right-to-Know Law, which was enacted “to ensure . . . the greatest possible public access to the actions, discussions and records of all public bodies.” As the preamble to 91-A recognizes, “[o]penness in the conduct of public business is essential to a democratic society.” Thus, 91-A provides that “[e]very citizen . . . has the right to inspect all governmental records in the possession, custody, or control of [all] public bodies or agencies.”

The Supreme Court explained why transparency is important, writing in Prof’l Firefighters of N.H. that “public scrutiny can expose corruption, incompetence, inefficiency, prejudice and favoritism.”

Carla has worked hard for over a year to prevent public scrutiny of the per-employee cost for health and dental benefits. By her own admission, she first tried to conceal the information through HIPAA. When that did not work, she concocted a tendentious reading of 91-A:5-IV in order to withhold the information. This has harmed the public. The Supreme Court wrote, also in Prof’l Firefighters of N.H., “the Right-to-Know Law favor[s] public scrutiny in order to enable resident voters to properly exercise their final appropriating authority.”

Carla has not served the town well on the budget committee, but has instead sought to prevent resident voters from “properly exercising their final appropriating authority.”

At the next meeting, Carla should either:

1. Publicly state for the record that she was wrong and that the per-employee cost for health benefits is not exempt from 91-A, that it is public information, and that my publishing of that information was not illegal as she falsely alleged, or
2. Resign.

Kind Regards,
Max

References
The New Hampshire Constitution
https://www.nh.gov/constitution/constitution.html

The Right to Know Law (91-A)
http://www.gencourt.state.nh.us/rsa/html/vi/91-a/91-a-mrg.htm

Attorney General’s Memorandum on the Right to Know Law
https://www.doj.nh.gov/civil/documents/right-to-know.pdf

Prof’l Firefighters of N.H. v. Local Gov. Center, 159 N.H. 699, 992 A.2d 582 (2010)
http://www.orol.org/rtk/rtknh/2009-215-2010-01-29.html

Lambert v. Belknap County Convention, 157 N.H. 375, 949 A.2d 709 (2008)
http://www.orol.org/rtk/rtknh/2007-566-2008-06-13.html

Mans v. Lebanon Sch. Bd., 112 N.H. 160, 290 A.2d 866 (1972)
http://www.orol.org/rtk/rtknh/6325-1972-04-28.html

Carla reading email from Stephen Buckley

January 2, 2018, Budget Committee Meeting