Our View: Do not create an unfair barrier to public access

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On Tuesday, a working group of the municipal officials presented the Legislature’s Appropriations Committee with a handful of recommendations, including vastly increasing the cost for public access to documents under Maine’s Freedom of Access Act.

A very similar proposal came before the state’s Right to Know Advisory Committee and then the Judiciary Committee last year and was rejected outright as an extreme barrier to public access.

We ask Appropriations to look to its peers on Judiciary and follow that wisdom.

The proposal comes before Appropriations as part of the final report of the Mandate Working Group, a group organized by the Department of Administrative and Financial Services to review state mandates and make recommendations to ease the burden on our town officials and local coffers.

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Members of the working group represent municipalities; the group was tasked with looking at negative aspects of mandates through the singular view of town officials. No other points of view were heard.

The group came up with some solid recommendations, including a pilot program to incentivize efficient collaboration among towns. Another recommendation is to allow civic and fraternal organizations and veterans groups to assist towns with grave site maintenance.

Many of the recommendations deflect costs, including one that would require Maine’s court systems to reimburse towns and counties for the actual hourly wage of any law enforcement officer who is scheduled to testify at a trial or is physically present in a courtroom. The courts now reimburse a flat $50 for the day, and this would move great cost to the already underfunded court system.

And, then there’s the recommendation to allow government to charge people the “actual” cost of searching for, retrieving and compiling a public record under FOAA, including the cost of scrutinous redaction of records, if the request takes more than 20 hours to finish.

Under current law, the first hour used by government to respond to a public access request is free. After that, it’s $15 per hour.

Last year, under LD 104, there was a short-lived proposal to increase the hourly fee to “actual cost” of retrieval, collation and redaction. The proposal died after short debate because it was clear to the Judiciary Committee that higher cost of retrieval creates a barrier to public access.

For instance, if a town receives a FOAA request it may now charge $60 for five hours of work. Under last year’s proposal, taking into account the hourly wage of officials who would be handling requests, the fee could have been more than $275 in some towns.

That’s just too much, and may very well equal a denial of access for the poor who cannot afford anything close to that fee.

So, the $15 an hour remained.

Now, this municipal working group — with no mention of the work already done in this regard or the legislation that failed last year — has brought forth a similar proposal designed to tackle the cost of large-scale FOAA requests.

Under the new proposal, the first hour is free and the next 19 hours stand at $15. Anything that takes more than 20 hours of staff time would be charged at actual cost of retrieval.

When a person makes a request for public access to documents, generally speaking, they have little concept of the time it may take to fulfill that request. The records may be digital and easily accessible. Or, they may not be so accessible, packed up in dusty boxes in long-term storage.

Let’s play out what this higher cost could mean.

A person makes a request for documents that is estimated to take 25 hours to complete. If that request is made of the Governor’s Office, the fee now would be $285. Under the new proposal the fee would be $512.10, based on the hourly wage of the governor’s designated FOAA officer.

If a request for documents was made to the Department of Labor and it takes 25 hours to process, the cost would be $386 because DOL’s FOAA officer makes less per hour than the access officer in the Governor’s Office.

A request to the Department of Health and Human Services would be $500.95, at the Department of Corrections it would be $408.95, at the Department of Environmental Protection it would be $446.15, and at the Department of Transportation, $531.90.

So, not only does this proposal create an unfair barrier of access to the poor, it also creates a wide-ranging system of fees based on where a request is made.

Why should an access request made to the DOL be $145.90 cheaper than a request made to the DOT if each take the same amount of time to process?

But, more importantly, the public already pays for the production and storage of all government documents, which means the documents belong to us and our cost to access them should be nominal, if at all.

State government already realizes that in practice, if not in policy.

When considering last year’s proposal to increase fees, the Right to Know Advisory Committee surveyed state agencies about whether they charge the $15 hourly fee.

Of the 30 agencies surveyed, 18 do not charge that fee, including the Maine Drug Enforcement Agency, Bureau of Highway Safety, the Bureau of Insurance and the Maine Historic Preservation Commission.

But let’s get back to the mission of this working group that is recommending the fee increase.

The group was formed to study mandates.

Public access to documents is not a mandate. It is a right.

There is certainly a cost to comply with FOAA requests, but that cost must be low enough to allow access to all, not just to the folks who can afford to pay the bill.

jmeyer@sunjournal.com

The opinions expressed in this column reflect the views of the ownership and the editorial board. Editorial Board member Judith Meyer is a member of the Right to Know Advisory Committee.

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