Legal
Q and A Right-to-Know and Privacy Q&A By Jonathan Cowal, Municipal Services Counsel The purpose of the Right-to-Know Law (RSA 91-A) is to provide transparency in government and ensure the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. Under RSA 91-A the public has broad access to governmental records created, accepted or obtained by a public body or agency. However, while the purpose of the Right-to-Know Law is to allow the public access to information and records kept by government agencies, that doesn’t mean this access comes without its limitations. Questions most often emerge when information about an individual that would generally be considered private ends up in a governmental record and could be subjected to disclosure pursuant to a request made under the Right-toKnow Law It is important to remember that just because a governmental record can or even should be disclosed under RSA 91-A, it doesn’t mean that privacy interests of individuals no longer apply. Right-to-Know was designed to shed light on the operation of government entities, not necessarily individuals, especially if they are not themselves government employees or were not acting in their capacity as a government official. Q. What privacy protections exist within RSA 91-A? A: RSA 91-A:5 lists a series of governmental records which are exempted from disclosure under the Right-to-Know Law. These exemptions include records such as grand jury lists, personal school records of pupils, teacher certification records, and records pertaining to matters relating to the preparation for and the carrying out of all emergency functions. Tucked within paragraph IV of section 5 it also states, “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.” It is the statement, “other files whose disclosure would constitute invasion of privacy” that has been interpreted as the exemption used to protect individual privacy interests when it comes to disclosure of records. 46
NEW HAMPSHIRE TOWN AND CITY
Q. What type of information constitutes an invasion of privacy? A: First and foremost, most personal identifying information about an individual would be considered outside the scope of what should be disclosed in a public records request. Things like addresses, phone numbers, social security numbers and email addresses of private citizens found within a governmental record should be redacted before those records are disclosed to the public. Keep in mind, however, the context in which this information was obtained matters. For something to constitute an invasion of privacy, the person providing the information must have had an expectation of privacy to begin with. For example, someone who stands up at a public meeting and introduces themselves by providing their name and address would not have a strong privacy interest in keeping that information out of the publicly available meeting minutes given that they chose to announce that information to the public body. Contrast that example with someone who was asked to provide their name and address when reporting a gas leak to the DPW. If records of the DPW’s response to that gas leak were sought pursuant to a RSA 91-A request, the person who was asked to provide their name and address when making the initial report would have a greater privacy interest because they did not give that information voluntarily and in an obviously public forum. When a situation such as this arises, a simple redaction can be all that is needed prior to disclosing the documents. But what happens when the information is broader than just a name or phone number? What if an individual’s entire interaction with a government entity could constitute an invasion of privacy if records of that interaction were released to the public? Q. How do I tell if enough of a privacy interest exists to qualify as an exemption from disclosure? A: The law supports disclosure. Unless a compelling privacy interest exists, records that would normally be subjected to disclosure should be disclosed under Right-to-Know. Howwww.nhmunicipal.org
