POLITICS

New communication tools can impede public access
State challenged to update its Right-to-Know Law

It is rapidly becoming a cyber world.

More and more business, personal and governmental transactions are taking place -- and data is being shared -- via electronic means with no paper trail.

Many feel this an exciting new phase of human existence. There are fewer and fewer constraints on what can be transmitted and to whom.

It is, in many ways, a typical American new frontier, with a myriad of opportunities coupled with a high degree of lawlessness.

While those conversant with this technology are revelling in what it can accomplish -- just look at the hype surrounding the introduction of Apple's new iPhone, which combines all the features of an MP3 music/video player, a cell phone and a Web browser -- there are those who are concerned that what seems a very public medium could actually wind up decreasing the amount of information available to the average individual, particularly when it comes to decisions made -- and actions taken -- by public officials.

During its 2006 session, the New Hampshire Legislature attempted to address the issue of how to ensure that public officials were not circumventing the state's Right-to-Know Law by using advanced technologies, such as text messaging, e-mails, video conferencing, etc. It proved to be a daunting task.

The purpose of the legislation was to attempt to redefine what constitutes a meeting of a public body as not just something that happens when its members meet in person, but also "by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power," the proposed legislation, House Bill 626, reads.

The bill also required governmental records created or maintained in electronic form to remain accessible for the same period as their paper counterparts and that these records be made available to citizens who request them.

The bill was amended and then passed by the House, but was stymied in the Senate after Gov. John Lynch sent a letter to Sen. Sheila Roberge, chairman of the Senate Public and Municipal Affairs Committee, citing concerns about a possible loophole in the legislation.

"I share concerns that provisions in the proposed bill regarding e-mail communications might enable government officials to circumvent the quorum and open public meeting requirements of the law by authorizing non-public, sequential emails among various members of boards and commissioners," the governor wrote.

Lynch requested the Senate to amend, then pass the bill, but that body tabled it instead. So, as of this moment, the cyber revolution means potentially less public oversight of governmental boards and agencies rather than more.

So far this year, only one bill has been submitted to deal with this issue. It is House Bill 82 and simply attempts to insert the following paragraph into the existing Right-to-Know Law (RSA 91-A):

"Any communication, in whatever form, outside a meeting among the members of a quorum of the membership of a public body, which bear upon matters over which such body has supervision, control, jurisdiction or advisory power, shall be disclosed at the next meeting of the body before any decision may be made, including a decision not to act," HB 82 states. "If such communications are in writing, copies or printouts shall be made a part of the public record."

Based on the complexity of communication mechanisms now and prospects for the future, this bill appears overly simplistic and, therefore totally inadequate, in its approach. There is no provision for immediate public notification of the discussions had by quorums of public bodies and no guarantee that communications made via electronic means would ever be made public.

The total rewrite of RSA 91-A proposed in 2006 appears to be the most comprehensive approach. Among the first things the Senate should do this session is to take HB 626 off the table, correct it to reflect the governor's concerns and vote to pass it.

"Information technology cannot be allowed to frustrate New Hampshire's commitment to openness and accountability in government," Lynch pointed out in his letter to Roberge last year. "We must do everything possible to ensure each citizen has an enforceable right to access public records and meetings."

Shir Haberman is the business/political writer at the Portsmouth Herald. He can be reached at shaberman@seacoastonline.com