Maine FOI Coalition’s contrived standard to test public access is not acceptable.

On July 3, the Sun Journal printed two articles, two charts and an editorial regarding the “noncompliance” of local government with requests for public records. This self-styled “audit” was conducted by the Maine Freedom of Information Coalition, a private coalition of interest groups, and the results are outlined in an 18-page report. The audit director was Judy Meyer, a Sun Journal managing editor.

This so-called audit was a sham and the press handling of it was misleading.

The coalition sent volunteer auditors to 89 municipalities. These volunteers requested copies of four different kinds of documents, one being all undischarged tax liens. The report asserted that only 59 percent (53 of 89 municipalities) complied with the request for tax liens. Some of Maine’s largest communities, including Lewiston and Auburn, were allegedly noncompliant, according to these auditors.

Why would 40 percent of municipalities refuse to turn over tax liens? Municipalities pay to file these liens at the registry of deeds for the express purpose of notifying the public of their claim. This seemingly irrational behavior would appear to justify the Sun Journal’s devotion of over 2,700 words to the topic on one day.

However, things are not what they seem.

The Sun Journal did not explain what “compliance” meant anywhere in its 2,700-word account of the audit. In fact, the press coverage misled the public into believing that the audit tested compliance with the Freedom of Access Act. The opening sentence from the Associated Press article that ran in at least four Maine newspapers, including the Sun Journal, declared: “The latest survey of compliance with Maine’s open records law . . .” shows mixed results.

This representation of the audit was false and misleading.

According to Ms. Meyer, the standard used to compile the 59 percent compliance rate was not that of the Freedom of Access Act. Instead, the coalition used its own “moment in time” or “upon request” standard. That is, if the volunteer did not receive a copy of the document “upon request,” the municipality was considered noncompliant.

The actual FOA gives public officials a “reasonable period of time” and flexibility to comply with a request for access to a public document. Typically, courts grant the government five days to deny a public records inquiry. The FOA is rational and reasonable. The coalition’s drop-everything standard is not rational, not reasonable and, most important, it’s not the law.

Some municipalities, such as Brunswick, provided access to the documents requested within 24 hours. Others, such as Auburn, Biddeford, Scarborough and South Portland, made the information available in less than five days. Although clearly compliant with the law, they all fell short of the audit’s drop-everything standard and were treated as noncompliant.

According to the coalition’s full report, other municipalities appeared ready to provide the information if given a chance. For example, Bangor, Portland, Wiscasset, Canton and Jefferson requested time to assemble the material. The auditors strictly treated these requests for more time as noncompliance.

Even auditor ignorance of a town’s business hours resulted in noncompliance. That is, the drop-everything standard was so strict that even towns which were closed on the day of the audit (Durham, Kennebunk, Waldo, Wilton and Windsor) were considered noncompliant.

The Sun Journal editorial on the topic noted that, “Municipal offices are not so responsive to the public” and that’s “just not acceptable.”

The drop-everything standard is not the law. The failure of the press to clearly explain the coalition’s standard is troubling. But, most of all, the coalition’s use of a contrived standard to suggest municipalities routinely refuse freedom of access requests is what’s truly not acceptable.

Jeffrey Austin is a legislative advocate for the Maine Municipal Association, based in Augusta.