Scarborough schools' fee for public records exceeds legal cap

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SCARBOROUGH — The School Department’s policies on public access are illegal under state law, according to one attorney and a representative of the Society of Professional Journalists.

Fees associated with records requests from the School Department exceed the state limit, said Sigmund Schutz, an attorney with Preti Flaherty in Portland and a director of the New England First Amendment Coalition.

The School Board was scheduled to consider a proposal to substantially increase the fees at its meeting Thursday night, but board members removed the item from the agenda Wednesday after being questioned about it by The Forecaster.

The existing policy uses a tiered fee structure for public records of $10-$30 per hour for fulfilling a records request; fees are smallest for clerical staff work and largest for time spent by the superintendent of schools.

The proposed change would have increased the fee to $15-$50 per hour.

Maine’s Freedom of Access Act stipulates that municipalities may assess labor fees for such work, but only after the first hour and at no more than $10 per hour.

“The question for the town is how they can square their policy with (state law),” Schutz said. “… I don’t think there’s any ambiguity in the law.”

Board members on Wednesday claimed ignorance of the state law, but pledged to re-examine their policy with an attorney and guidance from the Maine School Management Association.

John Cole, a member of the School Board’s Policy Committee, said the School Department is dedicated to public access. He said he didn’t know the existing policy ran afoul of the law, and said the fee structure came before the committee after another School Board member realized it hadn’t been updated since 2002.

The committee’s concerns, Cole said, were to absorb School Department labor costs and accurately reflect the value of staff time.

“This is not our area of expertise,” Cole said. “For me it was very simple: If I’m paying a superintendent $130,000 per year, is $30 per hour his rate? No, it isn’t. It should be more.”

Cole said the board rarely consults lawyers about its policies, unless obvious questions of child safety are raised.

School Board members, however, are required by state law to complete training on the Freedom of Access Act, including the procedures and requirements for meeting requests for public records.

Cole said the training provided only “high-level” overview of the law, and that he didn’t remember getting into specifics about fees.

Another section of the policy says the School Department is not required to “use staff time and resources to compile data or respond to lengthy requests for information.”

Schutz, the attorney, said that provision is also contrary to state law. But he said it is possible the phrasing is an attempt at explaining that the department is not obligated to create records that don’t already exist.

“If it’s a clumsy way of saying they’re not going to create documents for people, that’s one matter,” he said. “But if it’s a question of making available public information … they’re obligated to do that.”

Jane Wiseman, the School Board member who chairs the Policy Committee, said that section of the school policy was not reviewed by her committee.

“When we do a full review, we read everything,” she said. “In this case, we were only looking at the fees.”

“We’re not lawyers,” Wiseman added.

Wiseman also contended that School Department staff told the committee that hourly fees were never assessed, and that they are only on the books to protect the department from having to absorb the cost of potentially massive requests for information.

The town’s Freedom of Information Policy was adopted in 1994. Cole said the language was provided by the Maine School Management Association. It was revised in 2001 and 2002 by the School Board, which often takes its cues from department staff.

Cole said that however the policy came to be, it is clear the School Board may need a refresher on the finer points of public access law.

“The buck stops with the School Board,” he said. “That’s the bottom line. We approve policy, we make policy. It’s up to us to fix it now.”

Jeff Inglis, president of the Maine chapter of the Society of Professional Journalists and managing editor for The Portland Phoenix, was surprised at the seeming lack of understanding of freedom of access by the School Board.

“The whole point of this is that government shall be open to the public,” he said. “Nothing in the state’s Freedom of Access Act allows (a town) to keep government more closed.”

Neither Superintendent of Schools George Entwistle III nor Assistant Superintendent JoAnne Sizemore could be reached for comment on Wednesday.

Mario Moretto can be reached at 781-3661 ext. 106 or Follow him on Twitter: @riocarmine.