Posted by: Patricia Salkin | March 27, 2012

New Hampshire Supreme Court Holds Board Discussion of Attorney-Created Documents Not Exempted from Open Meetings Requirements

A group of neighboring property owners challenged actions of the Town of Madison Planning Board in discussing a proposed condominium project behind closed doors, arguing that the discussion violated the state’s Right-to-Know law.  The neighbors had attended a March 3, 2010 meeting – a public hearing on the proposed condominium development – to voice concerns about the arrangements.  At the start of the hearing, the board and its administrative assistant adjourned to a private session for approximately thirty minutes, during which time they read and discussed communications between board members and the Board’s attorney, a legal memorandum summarizing the attorney’s advice on the matter, and other communications from the neighboring property owners’ attorney.  The Board’s attorney was not present at the session. 

Following the private discussion, board members returned to the public meeting, hearing from the neighboring property owners’ attorney before voting to approve the condominium project.  The neighboring property owners filed a petition challenging the action in superior court, on the grounds that the private session immediately preceding the decision had been held in violation of the state’s Right-to-Know law.  The superior court agreed there was a violation, but declined to remedy it by invalidating the Board’s approval.  This appeal followed. 

The Board claimed the discussion was exempted from the definition of a meeting under the state Right-to-Know Law because it involved consultation with legal counsel.  The Board argued that discussing its attorney’s advice, even if the attorney is not present, should still be considered consultation with legal counsel.  Further, the Board argued that such discussions would fall under the common law attorney-client privilege as it applies to public bodies, which the legislature would have intended to protect when it carved out the consultation with legal counsel exception to the Right-to-Know Law.  For that reason, the Board felt that the consultation with legal counsel exception should be coextensive with the common law attorney-client privilege, allowing public bodies to enter into nonpublic sessions in order to discuss advice of counsel. 

However, the court declined to extend the consultation with legal counsel exception that far.  The Court pointed out that the attorney-client privilege is an evidentiary rule, while the Right-to-Know Law mandates open meetings and creates only a small list of narrow, specific exceptions to the general rule of openness.  There is no reason why an attorney-client evidentiary privilege and an open meetings law cannot coexist, the court said.  When meeting with its attorney, or discussing pending claims or litigation, the Board can do so privately under those exceptions to the Right-to-Know Law, but when meeting as a public body to discuss matters within its purview, the Right-to-Know provisions require that the Board do so publicly. 

Further, the court agreed with the Board that the written attorney-client communications with the Board could also be protected from disclosure, but disagreed with the Board’s contention that the existence of an exception from written disclosure created an exception to the open meetings law that allowed the Board to close the meeting in order to discuss those documents.  The court said the legislature could not have intended the narrow exceptions written into the Right-to-Know Law to allow a public body to close a meeting every time its discussion turned to advice it had obtained from its attorney when that attorney was neither physically nor remotely present to participate in the discussion in any way. 

Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (N.H. 12/8/11) 

The opinion can be accessed at:

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