Lawmakers ponder Falmouth rep's Freedom of Access Act amendment
AUGUSTA — Advocates on both sides of a bill that would change provisions in the Maine Freedom of Access Act made their cases at the Statehouse on Feb. 19.
If approved by the Legislature, LD 104, sponsored by Rep. Mary Nelson, D-Falmouth, would add a stipulation to the act to protect email addresses of people who subscribe to government website and email announcement lists.
It also changes the fee structure of public records requests.
Under current law, municipalities are required to provide the first hour of research at no charge; subsequent hours may be charged up to $15 an hour. Nelson's bill would maintain the first free hour, but would allow towns to charge the hourly wage of the lowest-paid employee capable of fulfilling the request.
In an interview in early February, Nelson said she did not introduce the bill specifically in response to an incident last June, when frequent Falmouth town government critic Michael Doyle sent an email to the town's 3,100 e-mail subscribers through a security hole in the town's email server.
Nelson contended that this is an issue facing many municipalities in the state and her bill is an effort to quell abusive requests.
In her testimony on Feb. 19 before the Judiciary Committee, Nelson said email addresses of residents seeking one-way notifications should not become databases for outside users.
“Citizens are generally aware that if they engage in an electronic dialogue with public officials, their correspondence is a public record under the law, and that is as it should be," she said. "This situation is different. Towns should be able to provide simple notification services to their citizens without triggering the prospect of unwelcome, town-wide solicitations or even identity theft.”
At the hearing, the Judiciary Committee heard testimony from 12 people and organizations, the majority of whom opposed any change to the FOAA.
Doyle even suggested his own changes: that “any resident of the local government has unlimited free access to public documents” or information on municipal employees and school district employees, and contracts for municipalities and school districts be loaded in unlocked spreadsheets on town websites.
Many of the people who testified, both in favor and opposed to the bill, recognized that Falmouth has a unique situation. But they said the proposed legislation has impact beyond just one town.
Earl Brechlin, president of the Maine Press Association, whose testimony was presented by past President Michael Mahoney, said that while the press association recognizes the unusual situation in Falmouth, compromising public access is not the solution.
“While it's a response to one extreme example, the language in LD 104 is broad enough to apply the public records exception to anyone who signs up for any state list, and the provision to shield email addresses collected for 'noninteractive notifications' is vague enough to open the door to loose interpretations of which lists are exempt.”
Attorney Bryan Dench, who is a Falmouth resident, and the Maine Trial Lawyers Association opposed any restriction on public records, and the fee structure increase.
“This bill would make some current public records, primarily email addresses, unavailable based upon the experiences of one town and the difficulty they are having dealing with Freedom of Information requests,” said Richard Thompson of the trial lawyers. “While we can empathize with the burden this places on the town, and as difficult as this situation may be, it is not a significant reason to change the law and restrict access to this public information.”
Dench, who has represented municipalities, said that he understands the burden FOAA requests can place on towns, but he does not believe limiting access to the records or charging all requesters actual costs is the answer.
“Instead (of changing the law) it would be better to remember the original purpose of FOAA, which was access to records and proceedings, not the creation of a right to compel public employees or officials to conduct research and analysis of existing records instead of performing their public functions,” he said.
Nathan Poore, town manager of Falmouth, said that he and the town believe that transparent and open government is essential for the efficient management of services provided by the government, and he feels LD 104 is not out of line with that ideal.
“It actually enhances these goals,” Poore said. “It provides an opportunity for government to reach out to citizens with public information rather than rely on citizens to request information. Sending public information to citizens eliminates the need to request public information via FOAA requests."
He said it is too late to help the 3,100 residents who received email from Doyle last June, but it would guarantee privacy for future citizens who choose to subscribe to town websites.
“We understand that when citizens choose to engage, initiate, reply or respond to government, they do so with the understanding that this information is public,” Poore said. “Public information should be about the information being transmitted – not the actual transmission.”
Poore and Scott Morelli, city manager of Gardiner, both strongly supported increasing the cost of FOAA requests.
“We need to question whether it is fair for a very few or even one citizen to over-utilize the services of government employees at a cost not much more than minimum wage,” Poore said. “We appreciate the recent amendment to increase the hourly fee, but there needs to be more consideration for the actual cost of providing public information to a very small minority at the expense of all others.”
Morelli said that while Gardiner respects the right to a transparent government, sometimes the time costs do not equal the compensation for the work done.
“On rare occasions, we receive records requests that overwhelm our staff and require an extraordinary amount of time and resources in order to comply,” he said. “We support providing these records as we have nothing to hide, but we believe that the citizens of Gardiner should not have to subsidize the requests of ax grinders and disgruntled citizens intent on slowing the wheels of government.”
The American Civil Liberties Union of Maine supported the first sections of the bill, providing protection to citizen email addresses, but it opposes the change in fee structure.
“Our concern is if the cap is removed and the cost for gaining access to information is tied to the hourly rate paid to employees to fulfill the request, fees would increase,” said Jill Barkley, the public policy advocate for the ACLU. “We are concerned that the fee increase could potentially disadvantage small groups or private individual citizens who wish to review public information.”
The Maine Right to Know Advisory Committee also strongly opposed the proposed change in fee structures. Judith Meyer, chairwoman of the committee's legislative subcommittee and managing editor of the Sun Journal in Lewiston (part of Sun Media Group, which also owns The Forecaster), said that the change would create a barrier to public access and could deny access to those who cannot afford it.
“For most Mainers, but especially for those who are struggling to make ends meet, its inherently unfair to knowingly block access to the poor by creating a financial obstacle that the wealthy can simply hop over,” she said. “Raising the per-hour research and retrieval fee to 'actual cost' would create that obstacle, making public access a right enjoyed by the wealthy, but inaccessible to the poor.”
As of Tuesday, the Judiciary Committee had not reported a recommendation on the bill.