NH Supreme Court Holds Municipal Technical Review Group is not a Public Body Subject to Right-to-Know Law
New Hampshire’s Right-to-Know law, RSA Chapter 91-A, is a powerful tool in requiring transparency in governmental decision-making. The law requires the government to conduct public business in meetings that are open to the public to encourage accountability and transparent decision-making.
The Right-to-Know law applies to all public bodies including unelected advisory committees that provide recommendations on proposed policy matters. For example, municipal planning boards act as advisory boards in recommending ordinance amendments to local governmental bodies, and are required to hold open, public meetings.
However, it is not always clear when a regular meeting of governmental employees behind closed doors crosses the threshold and triggers the open-meeting requirements of the Right-to-Know law. This question was at issue in the NH Supreme Court’s decision in Martin v. City of Rochester, issued on June 9, 2020.
The Martin case involved the City of Rochester’s administrative Technical Review Group (TRG) – an informal committee of government employees from various departments tasked with aiding applicants in meeting code requirements for their development requests. The city manager created this administrative board primarily to help the request move smoothly through the various development processes. For example, a single commercial development request actually involves separate applications and approvals from numerous city departments and often may require a rezoning, subdivision approval, environmental permits and mitigation, right-of-way and utility connection approvals, site plan approval, dimensional variances, infrastructure improvements, and building permits prior to opening the doors. Technical review committees bring leaders from these various departments together in one room to discuss various compliance issues with the applicant.
The plaintiff in Martin, a real estate developer, sued the city arguing that the TRG violated the Right-to-Know law by not holding meetings open to the public; however, the NH Supreme Court disagreed, holding the TRG was not a public body subject to the Right-to-Know law. The case primarily turned on whether the TRG fell within the Right-to-Know law’s definition of “advisory committee.”
The court held the TRG was not an advisory committee subject to the law – primarily because it found the TRG, as a committee, did not provide advice or recommendations to a decision-making authority like the planning board or town council. Instead, the court described the function of the TRG as an informal method for each TRG member to raise concerns on the application on behalf of their respective departments. In the absence of the TRG, the applicant would still have to meet with each TRG member’s department separately to discuss compliance with their requirements. Essentially, the court felt the TRG’s purpose was not to provide a unified recommendation or advice to the planning board on whether or not it should approve or deny the development request.
In the court’s view, the primary factor in determining whether a staff committee is an advisory committee subject to the Right-to-Know law is whether its purpose is to provide advice and recommendations to the planning board.
In addition, a meeting of government staff members is more likely to be exempt from the Right-to-Know open meeting requirements if the staff committees:
- Are administratively created by, and under the sole authority of, the city manager or other chief executive (and not the city council or other decision-making body).
- Do not have any final decision-making authority, and instead are primarily meant to provide feedback to the applicant.
- Do not formally provide a unified recommendation to the planning board on whether the application meets the elements of approval for the development request.
- Cannot hold up an application from moving forward to the planning board hearings process.
The Supreme Court’s Martin decision may appear relatively straightforward, but the realities of local government decision-making on development requests are more nuanced. The staff members can play an outsized role in the approval process and greatly influence the ultimate decisions by planning boards. While each technical review committee member may be commenting from the perspective of their individual departments, these comments in the aggregate are considered by the planning board and arguably form a de facto recommendation on whether the planning board should approve or deny the application. Planning boards regularly not only consider these comments but also incorporate them into their final decisions – by making approvals contingent on the applicant resolving the technical review committee’s concerns.