Loading...
HomeMy Public PortalAboutADM-113_Right To Know Policy_Effective 04-15-2020 City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 1 of 8 Approved by: Section 1.0: Purpose Openness in the conduct of public business is essential to a democratic society to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. This policy identifies what a member of the public needs to furnish when requesting access to a governmental record; whether the request is verbal or written and whether the request specifically references RSA 91-A, also known as “right-to-know”. This policy further identifies how staff must respond to each type of record request. Section 2.0: Scope This policy applies to all departments and officials of the City. Section 3.0: Definitions RTK – State of New Hampshire Right-to-Know Law; RSA 91-A. FOIA – Freedom of Information Act – Federal law; 5 U.S.C. § 552 Governmental Record – means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records” also shall include the term “public records.” RSA 91-A:1-a, III Electronic Records – are defined in RSA 5:29, VI as “information that is created or retained in a digital format. Electronic governmental records shall be available in the same manner as records stored in public files if access to such records would not reveal work papers,16 personnel data or other confidential information. RSA 91-A:4, V. The New Hampshire Supreme Court has held that a record does not lose its status as public because it is stored in a computer system. Hawkins v. N.H. DHHS, 147 N.H. 376 (2001). Electronic Government Records may include, but are not limited to: a. Documents stored in a computer or any other storage medium such as CD, DVD, the cloud, or thumb drive; b. E-mail; c. Voice mail; d. PDF documents; e. Instant messages; City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 2 of 8 Approved by: f. Text messages; g. Electronic photos, video or audio recordings (digital). Section 4.0: Policy Detail A. ESTABLISHED PRINCIPLES  The public has the right to inspect, during regular business hours and at the appropriate department location, all public governmental records and request copies except those records that are temporarily unavailable or are specifically exempted by law.  The public does not have to offer a reason or demonstrate a need to inspect a record.  The public must reasonably describe the record being requested.  The City is not required to create a record that does not exist, or compile data to create a record in a specific format requested, including electronic format; however, it may be easier to create an electronic summary or other report from a database than it would be to copy large volumes to satisfy specific record requests, and may also be necessary to maintain confidentiality.  Records that are exempt from public access are cited under various NH laws and generally include personnel records, medical, welfare, library user, vital records or any other confidential record in which disclosure would constitute an invasion of privacy or jeopardize the security or safety of any individual. Any question as to whether a record or portion of a record may be exempt from disclosure may be reviewed by Lebanon’s Municipal Records Board prior to release.  Written requests for governmental records, which reference right-to- know or RSA 91-A, received by the City of Lebanon are to be administered through the appropriate department with consultation with the City Clerk or legal counsel if needed.  The City of Lebanon is required to respond to requests under the Freedom of Information Act (FOIA) regarding documents related to projects funded by grants from the Federal Government. Requests cited under this Federal law shall be treated as a right to know request and handled as noted above. City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 3 of 8 Approved by:  The objective is to provide as many public documents as possible in directories that are readily available to the public that limit the need for citizens to have to request those documents directly from a staff person. Documents in electronic formats can be easily searched, redacted when necessary and distributed to citizens requesting those documents. Section 5.0: Procedures A. On-Site (in person) Requests 1. Verbal regarding legal discovery. 2. Verbal – not citing RSA 91-A. 3. Verbal – citing RSA 91-A. B. External Requests 1. Written regarding legal discovery. 2. Written – not citing RSA 91-A. 3. Written – citing RSA 91-A. 4. Email – not citing RSA 91-A. 5. Email – citing RSA 91-A. C. Procedures During On-Site Inspection D. Redaction of exempted information E. Fees and Charges A. ON-SITE (in person) RECORD REQUESTS 1. VERBAL REQUEST RECEIVED REGARDING LEGAL DISCOVERY If a governmental record is requested on-site by an individual or an agent, the department shall process the request administratively and charge the appropriate fees. 2. VERBAL REQUEST RECEIVED NOT CITING RSA 91-A A general request made verbally by an individual for access to a governmental record shall be made available for inspection or, if requested, copied as long as the record is readily available, and the staff determines that the record is not otherwise exempt. City Officials may ask the citizen to make an appointment to inspect the record if the record is temporarily unavailable or the staff receiving the request is unavailable to immediately furnish the request. When a requested record is not immediately made available for inspection, the record must be made available within 5 business days of the request, or the request may be denied with written reasons cited, or written acknowledgement of the request may be provided to the requestor stating the reasonable time City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 4 of 8 Approved by: necessary to determine whether the request will be granted or denied. If the records requested are not readily available, the department shall ask the requestor to put their request in writing for the purpose of having a written request on file. Note: having a request in writing cannot be mandated. 3. VERBAL REQUEST CITING RSA 91-A A request made verbally by an individual citing NH RSA 91-A or right to know for access to a governmental record shall be referred to the appropriate department. If the records requested are not readily available, he department shall ask the requestor to put their request in writing for the purpose of having a written request on file. Note: having a request in writing cannot be mandated. B. EXTERNAL RECORD REQUESTS 1. WRITTEN REQUEST RECEIVED REGARDING LEGAL DISCOVERY If a governmental record is requested in writing by an individual or an agent, the department shall process the request administratively and charge the appropriate fees established for these services. All requests for access of governmental records through a “duces tucem” subpoena or by written Interrogatory requests shall be immediately brought to the attention of the City Attorney. 2. WRITTEN REQUEST NOT CITING RSA 91-A If a governmental record is requested pursuant to a signed written request not citing RSA 91-A, the staff shall determine if the record is open to public access and readily available for release. If the requested record is determined to be open to public inspection and readily available for release, then the request shall be furnished using a methodology determined most appropriate. If the staff receives a written record request not citing RSA 91-A but determines that the requested record is exempt from public inspection, or contains exemptions which shall be redacted prior to release, staff shall provide a written statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld. per RSA-A:4,IV(c) or if staff is unsure as to whether or not the record is exempt, or there may be associated records outside of their direct control, they shall record the date and time of receipt and consult with the legal counsel or City Clerk for further guidance and City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 5 of 8 Approved by: respond to the requestor within the 5 business days. 3. WRITTEN REQUEST CITING RSA 91-A If a governmental record is requested pursuant to a signed written request citing NH RSA 91-A, the department receiving the request shall record the date and time of receipt. The City Clerk upon receipt of a written request citing RSA 91-A, shall immediately date stamp the request and notify the appropriate staff responsible for the requested record. If upon determination the requested record is not readily available, the City Official or City Clerk is required to, within 5 business days either make the record available, deny the request in writing with reason, or furnish written acknowledgement to the requestor stating a reasonable time when the determination of whether the request shall be granted or denied. If the record requested is not readily available, a meeting shall be scheduled with the appropriate staff to discuss the request and determine whether the request shall be granted or denied. Legal counsel can be obtained when necessary. Upon determination if the request is to be granted or denied, a written letter or email shall be sent to the requestor by the City Official or City Clerk unless otherwise determined by legal counsel informing them of the decision. If the record is subject to disclosure, the requestor shall be informed of the location where, and business hours when, the record may be inspected. Requested records which are maintained in electronic format may be copied or transferred electronically using PDF/A format in a manner that does not reveal confidential information or exemptions as defined under RSA 91-A:5. If the person requesting access to a governmental record prefers a different method of delivery other than copied to electronically, a printout of the requested governmental record shall be offered as an alternative. 4. ELECTRONIC MAIL REQUEST NOT CITING RSA 91-A If a governmental record is requested not citing RSA 91-A and is received pursuant to an electronic mail message, the staff shall determine if the record is open to public access and readily available for release. If the City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 6 of 8 Approved by: requested record is determined to be open to public inspection and readily available for release, then the request shall be furnished using a methodology determined most appropriate. If the staff receives a record request by electronic mail not citing RSA 91- A but determines that the requested record is exempt from public inspection, or contains exemptions which shall be redacted prior to release, or if staff is unsure as to whether or not the record is exempt, or there may be associated records outside of their direct control, they shall advise the requestor to furnish a written request for the record containing an original written signature citing right-to-know under NH RSA 91-A. 5. ELECTRONIC MAIL REQUEST CITING RSA 91-A If a request is received pursuant to an electronic mail message citing RSA 91-A, the staff shall immediately process the request. The official receiving the request shall notify the requestor that all record requests made pursuant to RSA 91-A are asked to be furnished in writing with an original signature and delivered to the appropriate official. C. PROCEDURES DURING ON-SITE INSPECTION 1. If the requestor knows specifically what records they would like to review, it is recommended that the requestor be advised to schedule an appointment with the appropriate department so that those records can be assembled ahead of time in preparation for the inspection. 2. Supervision by an employee must be provided at all times during records inspection. 3. Inspected records must remain in their present arrangement; documents shall stay in order. 4. Only one record series shall be inspected at a time. 5. To preserve the original record for future use, no marks, erasures or other changes to the record shall be allowed when accessed for inspection. 6. Due to the risk of damage to documents, use of ink is prohibited. The requestor inspecting governmental record shall use pencil when taking notes. 7. In order to preserve the original record from physical damage, hand held City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 7 of 8 Approved by: scanners are not permitted. Photocopying is permitted unless the appropriate staff considers the item to be fragile, exceptionally valuable, or too large to photocopy safely. Duplication shall be performed by staff or through an approved qualified professional. Additional security and procedures as determined by the appropriate staff may be required for fragile, one-of-a-kind, or historically significant records. Nothing in this section prohibits the requestor from taking a photograph of the document with a camera that does not require the document to be moved from a flat surface (Photocopiers and scanners require the document to be manipulated through the device). D. REDACTION OF EXEMPTED INFORMATION 1. There will be circumstances in which a document in its totality is not exempt from public inspection or release. In these circumstances there may be portions of the document which are exempt from public release. Portions of a document can be redacted protecting the exempted information from public disclosure. 2. Documents can be redacted manually or by electronic means. The method chosen must ensure the redacted information is adequately protected for public release. In the case of electronic documents, the government official/employee must ensure metadata cannot be recovered after the redaction process is complete. 3. A copy of the redacted and un-redacted document must be preserved should there be an appeal regarding the efficacy of the redaction. 4. The government official/employee must provide written notification to the requester of the reason for the redaction. See sample index in the Attorney General’s Memorandum dated March 20, 2015. E. FEES AND CHARGES 1. The City of Lebanon is authorized to charge the requestor for any fees otherwise established by law for providing copies of governmental records prior to the commencement of the work. The current fee for photocopy sets by the City Clerk’s Department is 50 cents per page ($0.50). 2. If a computer, photocopy machine or other device is required to be used to copy a requested governmental record, the person requesting the copy shall be charged the established fee prior to the commencement of work. City of Lebanon New Hampshire ADMINISTRATIVE POLICIES & PROCEDURES RIGHT-TO-KNOW POLICY Policy Number Effective Date Last Revision Page No. ADM-113 4/15/20 Page 8 of 8 Approved by: Section 6.0: References (Charter/Code/State Statues)  NH RSA 91-A.  NH Attorney General’s Memorandum 2015-03-20  City Charter, Section C419:67 Public Records  5 U.S.C. §552 of the Federal Code Section 7.0: Policy & Procedure Revision History Section Revisions Date Original Adoption Original Document Approval 4/15/20 Amendment Amendment Amendment