By Jonathan Van Fleet
NASHUA, N.H. — Elected officials meet behind closed doors all the time.
Sometimes it’s to talk about the reputation of someone who’s not a member of the board, or to talk about a real estate acquisition, or maybe contract negotiations, or a personnel matter.
Call it whatever you want, executive session, non-public session, or even the absurd non-meeting, it is a provision in New Hampshire that allows boards to meet with an attorney without publicly posting the meeting and without taking any minutes whatsoever.
Freedom of information laws — in New Hampshire it’s called the Right to Know Law — provide certain narrow exceptions for our politicians to meet privately. It’s a system that requires politicians to self-police themselves, which makes our skin crawl.
And journalists have suspected abuse, well, just about everywhere journalists work, and as long as there have been non-public sessions. The more meetings drag on while a reporter sits in the hallway, the more suspicion grows.
“I know they could say something in public!”
We’ll never know how many meetings have been held in secret because a group of elected officials would like to play keep-away with the media, but it’s a safe bet there have been more than a few.
Every now and then we get a glimpse that confirms what we suspect, that much of what is talked about in a non-public session could have been talked about openly and publicly.
Take the case of a meeting of the Nashua Board of Aldermen.
Back in October the board moved to enter a non-public session to talk about real estate negotiations. Specifically, the board wanted to discuss city-owned properties that had been acquired years ago to build a new road called the Broad Street Parkway and were no longer needed.
But then something unusual happened: A few of the board members argued the board should remain in public session. Some speculate a political motive on their part — an attempt to challenge the mayor, Donnalee Lozeau, who wanted the closed-door session.
Regardless, the board still met behind closed doors, and these aldermen asked for the minutes to be reviewed and released publicly later.
Here’s a short sequence of events:
- Oct. 23 Aldermen vote, 10-3, to enter non-public session, citing the Right to Know Law’s exemption for real estate discussions. After the two-hour meeting, all aldermen present vote to seal the minutes.
- Nov. 13 The board agrees to keep the minutes sealed for another two weeks, while more redactions are considered.
- Nov. 27 Aldermen deadlock, 6-6, on whether to release the sealed minutes after some complain too much material has been deleted from the document.
- Dec. 11 Finally, 49 days after the meeting in question, aldermen vote unanimously to release (.pdf) the minutes to the public, though some continue to grumble publicly about the nearly two-dozen redactions.
But the minutes confirmed what many of us have always suspected, that nearly the entire conversation could have been held in public session.
The minutes were proof that the Right-to-Know Boogie Man does exist.
They show how the elected officials could have held a short non-public session to discuss any confidential information and then returned to public session.
Instead, the aldermen bounced back and forth between information that could have been discussed privately, and information that could have been discussed openly.
Most of the closed-door discussion centered on properties and projects that have already been talked about publicly. The city has already released a list of all the properties it has acquired, and needs to acquire to build the Broad Street parkway.
In essence, they used a small kernel of private information to keep the public locked out of a two-hour discussion.
After the minutes were released, one of the aldermen, a former lawyer and city mayor, Jim Donchess, argued the remaining redactions do not meet the requirements of the Right to Know Law.
“I, at the beginning, voted not to hold this session because it didn’t seem that most of the information was really non-public,” he said. “I still think the redactions are too broad.”
In an attempt to justify the non-public session, mayor Lozeau explained it this way:
“We would talk about our strategy, where we were headed and making sure that I was heading in the right direction so I wasn’t setting us up for a problem later on,” she said.
By Lozeua’s own admission, there was only “a small part” of what she wanted to discuss that couldn’t be held in public session, presumably appraisals and the possible sale of surplus property the city no longer needed for the parkway.
“Tonight there’s a majority of this meeting that could be held in public, and there’s a small part of it that can’t be,” she said.
We’re left to wonder what would have happened to this meeting and these minutes if politics didn’t get involved.The Telegraph has sought an attorney’s report about a school superintendent who was caught using the district’s credit card for personal purchases. The report was presented and discussed in non-public session. We were told the report and minutes would remain sealed for 50 years.
In other cases, we’ve asked for sets of sealed minutes in smaller towns to be reviewed and released, like in Hollis, NH, and we’ve been told the town doesn’t have the time to go back and review the minutes they’ve sealed.
Those minutes, whether the exemption to the public meeting law still exists or not, will likely remain sealed in perpetuity.
Without filing a lawsuit, there’s little recourse for newspapers in New Hampshire when our Right to Know requests for sealed minutes are rejected. And Nashua just illustrated for all to see the flaws of a self-policing system for open meetings and public information.
Jonathan Van Fleet is managing editor/content of The Telegraph of Nashua, N.H.