No Obligation To Disclose Minutes If Meeting Only ‘Technically Open’ To Public

Like most states, New Hampshire has a “Right To Know” statute requiring the disclosure of public records. The statute has a number of exemptions, including one for “confidential” information. Generally speaking, communications protected under the attorney-client privilege fall within the exemption for confidential information.

The Professional Fire Fighters of New Hampshire filed a Right-To-Know request seeking minutes of a meeting of the Local Government Center (LGC), a public body. LGC produced the vast majority of the requested documents, but redacted certain portions under a claim of attorney-client privilege. In a lawsuit that wound up in the New Hampshire Supreme Court, the firefighters sought to compel LGC to produce the unredacted minutes of 14 meetings that occurred between 2000 and 2009, arguing that the redacted portions should have been released because the oral communications of LGC’s counsel occurred during meetings that were open to the public, thereby defeating any claim of privilege.

The Court sided with LGC and found the records confidential. The Court observed that “a communication is ‘confidential’ if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. If the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person, then the communication will be protected from disclosure.”

The firefighters argued that LGC could not have reasonably expected that its communications with counsel were made in confidence because they occurred during the course of open meetings, and because LGC took no precautions to ensure the communications were private. The Court demurred, noting that “no members of the public were present during the meetings. Because the ultimate touchstone is the speaker’s reasonable expectation that the communications were made in confidence, the fact that the meetings were technically open to the public is of no import. The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation. LGC could have reasonably relied on the absence of public attendees to ask for the candid advice of counsel. Had members of the public been present, the conversation could have progressed differently. Thus, because no third persons were present at the meeting, LGC was not required to take any further precautions – such as entering into executive session – to ensure the communications were private.”

Professional Fire Fighters of New Hampshire v. New Hampshire Local Government Center, 44 A.3d 542 (N.H. 2012).