Open records bill has bipartisan backing in Maine Legislature, local government opposition

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AUGUSTA — The public could get greater access to government records if a bill before the Legislature’s Judiciary Committee becomes law.

LD 1465 has bipartisan support in the Statehouse – and is opposed by a coalition of government officials and agencies.

The legislation was drafted by a pair of strange bedfellows: the Maine Heritage Policy Center and Maine Civil Liberties Union. It is sponsored by Sen. Richard Rosen, R-Bucksport, and would amend Maine’s Freedom of Access Act, which governs the way government agencies provide access to public documents.

It is co-sponsored by 30 senators and representatives on both sides of the aisle, including Sen. Justin Alfond, D-Portland, Rep. John Hinck, D-Portland, Rep. Heather Sirocki, R-Scarborough, Rep. Meredith Strang Burgess, R-Cumberland and Rep. Kimberly Olsen, R-Phippsburg.

The amendment would require government officials to make public records immediately available upon request, and give the public the right to request documents by electronic transfer and in a specific format, such as digital copies of emails or Microsoft Excel spreadsheet documents, without delays caused by printing or transcribing.

Any records that are not available immediately because, for instance, personal information must be redacted, or the documents are in storage, must be made available within five days of the initial request, and the government agency must submit a reason for the delay in writing to the requester.

“What’s most important,” said Jeff Inglis, president of the Maine chapter of the Society of Professional Journalists, “is that (the statute) got a little more formal about deadlines. This will be a great help for people whose requests just sit.”

Currently, a government agency is required to acknowledge receipt of a request and inform the requester if the documents will be made available, but there is nothing in the statute that provides a timeline for actually producing the documents.

“A non-denial can sit forever,” Inglis said.

The bill would also give requesters the ability to consult a public access ombudsman at the state attorney general’s office to mitigate disputes.

While journalists and open government advocates support the bill, representatives of municipal and school organizations are against it.

At a public hearing last week, representatives from the Maine Municipal Association called the proposed time lines for producing records “unrealistic and unmanageable,” and asked that the bill be sent to the Right to Know Committee, a group appointed by the Legislature to review issues of open government and access.

“The Advisory Committee’s charge is to review and make recommendations to certain legislative committees about amending sections of the FOAA. If there was ever a piece of legislation that deserved to be thoroughly reviewed by the Advisory Committee, LD 1465 is that legislation,” Greg Connors, legislative advocate for the MMA, said in the hearing.

Falmouth Town Manager Nathan Poore also testified. Falmouth has seen a sharp increase in the number of FOAA requests in the past year, due to a large number of requests from one town resident.

“Some of the concepts here make sense, and the ideas are not a problem,” Poore said Tuesday. “I just worry about the interpretation.”

Poore said he’d also like to see the Right to Know Committee take a look at the bill and consider the effect the new language could have if a requester intends to use requests to disrupt the operation of town or state government.

“I think there’s a responsibility for towns to respond reasonably to reporters … and we deal with that together from a relationship perspective. And I see people coming in and requesting birth certificates or zoning ordinances from a customer-service perspective,” Poore said. “But there are people who would use this language as it’s written in the other direction, to disrupt.”

Portland attorney Harry Pringle, of Drummond Woodsum, also testified at the hearing on behalf of school districts the law firm represents.

“The (amendment) as written is totally unworkable,” Pringle said.

He said that while he agreed that requiring government offices to designate and train a public access officer is a good idea, he is concerned that some smaller towns in Maine might have trouble reacting to the bill’s requirement that documents be made immediately available.

“It’s not like every agency in the state of Maine can do that,” he said.

Pringle also said that often schools receive requests from private companies seeking information to help them sell products, and attorneys who use the law as a free discovery tool for future lawsuits.

“When you write an extreme statute, which is what I think this is, you have to consider how it will be abused,” Pringle said.

Chris Cinquemani, Maine Heritage Policy Center communications director, noted the only people who testified against the bill were municipal employees or people who represent municipalities or school departments.

“They all said ‘I believe in transparency, but …, ‘” he said.

Cinquemani said he began drafting the bill in the early 2000s when he worked for then-Rep. Carol Westin, R-Montville. He said that for this version of the bill, MHPC worked closely with the MCLU to put together a bipartisan proposal.

“This is not a partisan or ideological issues. A lot of different people and organizations agree on this,” he said, pointing out that the MCLU and MHPC rarely agree on anything, but that they agree on this.

However, some government agencies are concerned about the burden the law would place on them to produce documents immediately and question the wisdom of allowing requesters to ask for records in a particular format.

“The standard response of government to the request that they show the public records is that it’s overly burdensome,” Inglis said. “If it’s truly overly burdensome of a public official to provide documents to the public, then (that person is) in the wrong job.”

“You know what’s burdensome?” Inglis added. “Not knowing what your government is doing.”

The bill is headed to a work session next week. After that it may be sent to the Right to Know Committee for review.

Emily Parkhurst can be reached at 781-3661 ext. 125 or eparkhurst@theforecaster.net. Follow her on Twitter: @emilyparkhurst.

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