Expert: Falmouth's new policy on public records is too restrictive

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FALMOUTH — The process to obtain public documents from the town is being made more rigorous  in light of what town officials say is a dramatic increase in the number of requests in the past year.

But an expert on Maine’s freedom of information law says the town may be going too far.

The School Department implemented the new protocol after reviewing it in early September. Town Manager Nathan Poore plans to present a similar protocol to the Town Council for review in October.

Neither the School Board nor the council are required to approve the procedure before it is implemented.

Maine’s Freedom of Access Act entitles citizens the right to access public records and meetings by public bodies. The new policy, local officials hope, will clarify the process for requesting documents from the town and School Department.

“There’s been, I think, some confusion about what a public record is, what is covered under FOAA,” Superintendent Barbara Powers said. “There’s been a lot of back and forth about what is a record and we’re hoping this might clear it up.”

The protocol, which is currently available on the school’s website, directs requesters to the state statute for the definition of a public record, which is a lengthy description that also includes a list of documents that are not considered public records.

But Mal Leary, president of the Maine Freedom of Information Coalition, said the town has added language that goes beyond the state statute.

Leary took particular issue with language in the protocol that requires a record “be inspected, by appointment, during normal business hours at a time and in a manner that ensures protection of the records and does not disrupt or obstruct the smooth functioning of the department that is the custodian of the record.” 

It goes on to say that if a requester is seeking to copy a record, it “shall be copied during the regular business hours on a schedule that does not disrupt the functioning of the department.”

“That language is so broad, it does not define the ‘smooth function’ of the department. You must define those terms. If you don’t, it’s up to interpretation,” Leary said.

The protocol also directs the requester to contact the designated public access officer, which is further defined for the town as the town manager or his designee and for the schools, the executive assistant to the superintendent.

Leary took issue with the vagueness of this definition and suggested the town more clearly define who a requester should contact.

The new protocol includes a fee schedule that defines the cost of black-and-white copies at 10 cents a piece, plotter copies at $5 per page, police reports at $1 per page, police photos at $10 a piece and meeting DVDs and police recordings at $20 each.

Poore said these fees do not apply to digital documents that are transferred to the requester electronically, but would apply to hard copies of documents that must be scanned.

The protocol refers to the state statute when referencing fees that requesters could be charged for the labor required to obtain documents. State law requires the first hour of information gathering be free; thereafter the town or school can charge $10 per hour to research and obtain the requested documents.

The protocol states that the town or school can require an employee to be present while the requester reviews or copies the records and, if the requester wants to copy the records off site, the town and school can request to have an employee present at the time the record is copied.

In those cases, the town or school “shall charge the person copying the record any costs incurred by the town in providing an employee or official to be present to protect the record or records.”

“If they want to bring a cop in to stand guard, they can only charge $10 per hour,” Leary said. “I understand their frustration, but they can’t do it. To require a person to be present and (that person) has to be paid for – that’s illegal. The first hour has to be free.”

In addition, the protocol mirrors the statute, stating that the public access officer can waive the fees associated with records collection in certain circumstances.

“I can imagine a fee waiver for the press, especially if it’s for a story for the public benefit,” Poore said. “But I don’t think it’s a blank check for the press either.”

Both Poore and Powers said requests would be evaluated, and any fee waiver requests would be determined, on a case-by-case basis.

Emily Parkhurst can be reached at 781-3661 ext. 125 or eparkhurst@theforecaster.net

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