A proposal allowing parties to recover costs in winning public access cases will reinforce public trust by holding government accountable for its actions.

Maine Municipal Association is set against a proposal revising Maine law to permit courts to award attorneys’ fees to people who prevail in public access cases.

MMA’s lobby arm recently testified so before the Judiciary Committee, following up with an argument against the bill in its legislative bulletin.

It would be, according to MMA, a burden on an already overburdened government.

It is, MMA claims, a bill backed by the press for press purposes only.

It would be, according to MMA, a one-way street permitting people to recover fees but not allowing government the same privilege.

Wrong on the first two counts, and so what on the third? Government already sits pretty on a one-way street flowing in its favor.

There are at least eight distinct laws on the books in Maine that allow – sometimes require – municipal government to recover attorneys’ fees in suits filed against citizens, but citizens don’t share that privilege. That includes violations of plumbing codes, cases where someone wrongfully demolishes a building and violations of junkyard ordinances.

So, could MMA really be arguing that it’s OK for government to recover one-way attorneys’ fees but block that same privilege for the people?

Yep.

MMA is a professional association that represents government. Lobbies for government. Defends government. Curiously, what it frequently misses is government is of, by and for the people. There is no dividing line between the people and government. We are – sometimes painfully – one and the same. And, we are frequently divided when it comes to public access.

LD 679 can help bridge that divide.

The bill, sponsored by Sen. David Hastings, R-Fryeburg, mimics similar laws in most other states and mimics federal public access law, so Maine isn’t breaking new ground here. In fact, it’s catching up on an issue where it lags, to the detriment of the public.

In its bulletin, MMA criticized testimony supporting the bill, which it characterizes as a bill that would “require a municipality a pay the attorney fees for the press when a newspaper successfully sues a town or city” over alleged right-to-know violations.

That’s a twisted presentation of the facts.

The bill requires nothing, but permits courts to consider awarding of fees. It’s not a mandatory outcome if government losses a Freedom of Access Act case.

And, the bill mentions nothing about the press at all. It “allows a court to award a party that brings a successful appeal in a case involving” public access.

Statistically speaking, that “party” is most likely a member of the public, not the press. National studies have determined time and again the vast majority of freedom of information requests (and, thus, denials) are filed by ordinary people. The second most frequent filers are inmates, then lawyers and then the press.

The reason the press files the fewest formalized FOI requests is simple. The press is pushy.

We’re knowledgeable about public access provisions and aren’t afraid to challenge denials without getting the lawyers involved. And, when that fails, the press can and does challenge on the editorial page. It’s the rare for the press to take a public access challenge to court.

The public, not so schooled on FOAA, is the real beneficiary here. There are too many people who don’t push for access they’re entitled to because they cannot afford to a lawyer when faced with government obstacles. Every time this happens, government operations become a bit more shadowed and public trust incrementally dissolves.

MMA warns that an attorneys’ fees provision would create a greedy atmosphere where piles of lawsuits are filed.That has not happened in any other state where this provision exists and, there is no guarantee someone filing a suit would even get fees.

First, they’d have to win. Second, they’d have to convince a court the government intentionally blocked access. These are tall hurdles that only the most determined and pure plaintiffs can climb.

As for the fear of a crush of frivolous filings, government will always have an opportunity in court to argue fees should not be paid in such cases. More important, if a lawsuit is frivolous, the plaintiff would not win and could not claim costs anyway. So, this is a false alarm.

The bottom line is government enjoys provisions written into law that permit its recovery of attorneys’ fees in cases it wins against citizens, in everything from civil rights violations to suits filed to quiet barking dogs.

For any entity, including MMA, to argue this same provision should not be awarded to any citizen whose fundamental right to public access is knowingly denied is not only unfair and distasteful, it’s just plain wrong.

The crux of this argument was voiced during the Judiciary Committee’s work session when it was asked whether inserting an attorneys’ fees provision into public access law would be an unfunded mandate on towns. Committee analyst Peggy Reinsch, frequently noted as a reliable expert on FOAA, paused just a moment and then responded: Only if government intentionally violates the law.

Exactly.

This provision is not a burden on a government that deals with the public in good faith. It is only a burden on public agencies and officials that do not. The public needs protection from harm, which is why this revision is so worthy.

Public access must be guaranteed or we’ll move from government representation to government rule. And didn’t we once chafe against that?

Judith Meyer is managing editor/days at the Sun Journal, a member of the legislative Right to Know Committee, and vice president of the Maine Freedom of Information Coalition, a nonprofit organization of public access supporters. She can be reached at [email protected]


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