Title 1: General Provisions

Chapter 13: Public Records and Proceedings (Heading: PL 1975, c. 758 (rpr))

Subchapter 1: Freedom of Access Heading: PL 1975, c. 758 (rpr))

§401. Declaration of public policy; rules of construction

The Legislature finds and declares that public proceedings exist to aid in the conduct of the people’s business. It is the intent of the Legislature that their actions be taken openly and that the records of their actions be open to public inspection and their deliberations be conducted openly. It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter. [1975, c. 758 (rpr).]

This subchapter shall be liberally construed and applied to promote its underlying purposes and policies as contained in the declaration of legislative intent. [1975, c. 758 (rpr).]

Maine’s Freedom of Access Act was one of the first public access laws written in the United States, designed to guarantee open meetings and access to public records. The language is contained in Title 1, Chapter 13, and clearly covers rules about when and how government must post public notice of meetings, when government bodies may convene executive sessions, what public records are available for inspection and copying (and for what cost), exceptions to public records, and what citizens may do to appeal government decisions if they believe the FOAA has been violated.

We offer a summary guide to the law below.

For more precise details, go to: http://janus.state.me.us./legis/statutes/1/title1ch13sec0.html

Q&A on FOA in Maine:

Q: Which meetings may I attend?

A: All meetings, whether on public or private property, of any body listed in Title 1, Chapter 13, Section 402(2), and whether formally or informally convened. Except as otherwise provided by law, all public proceedings will be open to the public and any person shall be permitted to attend any public proceeding.

Q: How do I find out when and where the meeting will be held?

A: Every body or agency that is covered by the law and is composed of three or more persons must give reasonable notice to the public sufficiently in advance of the meeting to allow public attendance. In the event of an emergency meeting, the fastest and best means of notifying the public through the media should be used.

Q: May I record a public proceeding?

A: Any written, taped or filmed record of a public proceeding is permitted, and may be either broadcast live or simply recorded for later use. However, this activity may not interfere with the orderly conduct of the proceedings and may be subject to reasonable rules and regulations.

Q: What are the rules about convening executive sessions?

A: Yes. Public bodies may move into executive session under very limited circumstances, including: discussion of employment if the discussion could reasonably be expected to cause damage to the reputation of the person under consideration; discussion of the suspension or expulsion of a student; discussion of the acquisition or use of property if premature disclosure of the information could prejudice the competitive or bargaining position of the body or agency; for union negotiations and labor contracts; discussions of the legal rights and duties of the body or agency; or discussion of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute. In moving into executive session, the body or agency must state the precise nature of its business and must include the precise statute under which it is moving into executive session in the motion.

Q: What if I’m wrongly denied access to a public meeting?

A: Any person who feels that an official action was wrongly taken at such a meeting, because the public was not allowed access to that meeting, may appeal to any Superior Court in the state. Also, report the denial of access to the Maine Freedom of Information Coalition at www.mfoic.org.

Q: What types of records may I view or obtain?

A: The term “public records” means any written, printed or graphic material or any mechanical or electronic data compilation from which information can be obtained that is in the possession or custody of an agency or public official, or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusive of one or more of any of these entities. You are not required to identify yourself or the purpose for which you are requesting the public documents.

Q: Are e-mails considered public records?

A: E-mail are public records just as paper mail or written documents would be. Both the statute itself and court precedent make it clear that all forms of electronic media are public records.

Q: Are drafts or preliminary reports considered public records?

A: Working papers, including records, drafts and interoffice and intraoffice memoranda, with some exceptions, are all public records. Documents do not necessarily have to formally approved by a board or agency to be defined public records.

Q: How long do I have to wait for the records after making my request?

A: The law provides that requests be satisfied in a “reasonable amount of time.” For records readily available, such as minutes of meetings, reasonable might be the same day the request is made. If the request is more complicated, the body or agency has a reasonable amount of time to gather the information for delivery. Let the body or agency know how quickly you need the material.

Q: Do I have to pay for copies of public records?

A: You do. The law was recently revised to control the cost, but citizens are expected to pay a “reasonable cost” for copies. That generally means comparable commercial cost for photocopies at a copy center or other service center. The body or agency may also charge $10 per hour (after the first hour) for staff time spent in retrieving public records. If the request for copies is large, the body or agency is entitled to provide an estimate and, if the estimated total cost exceeds $100, is entitled to ask for payment in advance. The body or agency is also, on request, permitted to waive all costs in the public interest if the material being requested is likely to contribute significantly to public understanding of the operations or activities of government.

Q: What if I’m denied access to public records?

A: Obtain a written denial of your request. The denial must be sufficient to explain why you’ve been denied and must be made within five working days of your request. If you feel that the denial was based on insufficient grounds, you may appeal to any Superior Court in the state. Also, report the denial to the Maine Freedom of Information Coalition at www.mfoic.org.

Q: What is the penalty if a body or agency denies access to a meeting or public record?

A: For every willful violation, the state government agency or local government entity whose officer or employees committed the violation shall be liable for a civil violation of not more than $500. That fine, if ordered, is paid into the state’s General Fund, not to the aggrieved party.

Q: What is the penalty for destroying public documents?

A: Whoever intentionally removes any book, record, document or instrument belonging to or kept in any state office, except books and documents kept and deposited in the state library, or whoever intentionally secretes, alters, multilates, defaces or destroys any such book, record, document or instrument, or, having any such book, record, document or instrument in his possession, or under his control, intentionally fails or refuses to return the same to that state office, or to deliver the same to the person in charge of the office where the same was kept or deposited, can be charged with a Class D crime.

What to do if you are excluded from meetings or denied access to records:

1. Register a protest. Ask to have your protest formally recorded in the board or agency minutes or registered with the head person of the office or agency that has denied you records. In doing so, refer to Title 1, Sections 401-406, Maine Revised Statutes. Then, write a letter to the board or agency confirming your protest and renewing your request that the board or agency cease its illegal meetings or furnish you with the requested documents. To view a sample FOI letter, or to use an electronic format to generate a letter, go to www.mfoic.org and click on “Sample FOI Letter” under “links.”

2. Contact the Attorney General’s Office, which has recently become more active in resolving public access disputes, and ask them to call the board or agency to instruct that it cease illegal meetings or furnish you with the requested documents.

3. Contact the local media and arrange to have a reporter on hand if you think you will be excluded from a meeting or denied a record. You could also write a letter to the editor or suggest a newspaper publish an editorial.

4. Contact the local district attorney’s office, the only law enforcement entity permitted to pursue punishment, and alert them to the problem. Ask the district attorney to meet with the board or agency or write a letter and explain the law. Request, all else failing, that the district attorney bring action to recover the civil penalty.

5. File a civil lawsuit in Superior Court. All court appeals are considered priority filings and hearings will be expedited over all other actions except writs of habeas corpus and actions brought by the state against individuals.

*SOURCES: Bryan Dench, Esq., of Skelton, Taintor and Abbott; Maine Press Association, Maine Freedom of Information Coalition; Maine Revised Statutes.

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