Some southern Maine town, school policies violate state's right-to-know law

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PORTLAND — The public’s right to know is described in Maine by the Freedom of Acccess Act, which clearly outlines the rules and obligations for operating an open, transparent government.

For example, a citizen who requests a document from a public agency may not be charged more than $10 per hour for time spent fulfilling that request. And that fee can only be charged after the first hour.

In spite of this, the Scarborough School Board has a policy allowing officials to charge up to $30 per hour. Late last year, the board was prepared to increase the fee to $50 per hour, but tabled the proposal after questions were raised by a reporter from The Forecaster.

The incident prompted an investigation into public right-to-know policies in cities and towns throughout greater Portland. That investigation revealed that Scarborough isn’t the only municipality or school district to run afoul of the FOAA.

While many area government officials understand their FOAA rights and responsibilities, some may not uphold their obligation to residents to provide open access to government.

Extralegal fees

In addition to the $10 per hour cap, state law allows agencies to charge “a reasonable fee” to cover the cost of copying documents.

But in Freeport, officials charged a resident $28.75 per hour for a request received in May 2010, reflecting the salary of the employee who filled the request.

The resident’s request, for all meeting minutes and agendas related to consolidation of emergency dispatch services, took town staff 90 minutes to complete and resulted in a $43.13 charge for labor.

After being asked about the charge by a newspaper reporter, officials in Freeport gave the resident a refund of $28.13.

The Freeport Town Council is working on a draft of a public documents policy, and until it’s completed, town staff said the town would follow Maine FOAA law.

In Brunswick, the Town Council adopted a policy in 2006 that allowed the town to charge for inspection of public documents if the research to find the files or the time needed to view them is “lengthy,” or if it requires removing an employee from his or her routine duties.  In that case, the policy allows the town to charge a fee equal to the employee’s hourly wage.

That’s despite a 2003 amendment to Maine’s FOAA that states government agencies and officials may not charge citizens for inspection of documents.

Town Manager Gary Brown said he has never charged anyone to view a document, and noted that while the town’s policy allows an employee to charge for inspection, it doesn’t mandate it.

“I’m confident that we never charged anybody to have an employee monitor the inspection of the records,” Brown said. He called the policy “poorly written” and “probably inconsistent with the (state) statute.”

Brunswick isn’t the only local government that claims it doesn’t adhere to its own public information policy. Most municipalities and school districts said they rarely consult their policies or charge for simple, day-to-day requests, such as copies of meeting minutes or agendas.

‘Clumsy’ language

Under Maine’s FOAA, government agencies are obligated to provide all requested information that falls under the public’s right-to-know. If they are going to deny a request, they must explain why. Either way, they must respond to a request “within a reasonable amount of time.”

But Scarborough’s School Department policy has language that suggests department employees don’t have respond to some kinds of requests at all.

The department’s policy states: “The law does not require the School Department to use staff time and resources to compile data or respond to lengthy requests for information.”

Jane Wiseman, a Scarborough School Board member, said the sentence was “only (in the policy) to protect from excessive workloads,” not to suggest the School Department isn’t obligated to respond to complicated requests.

Scarborough administrators also insisted they have never used the policy to deny a request for information.

Additionally, there is no language in the FOAA to protect government agencies from “excessive workloads.” Instead, the act specifies how agencies should deal with lengthy or complicated requests: They must give a cost estimate to the requester ahead of time if fulfilling the request will cost more than $20, and may collect payment in advance if fulfilling the request will cost more than $100.

But the language in Scarborough’s School Department policies is so fuzzy that open government advocates can’t determine exactly what it means.

Mal Leary, president of the Maine Freedom of Information Coalition, said the language about compiling data is too ambiguous, because it could be interpreted to mean either creation of new documents (which the agency is not required to do) or simply collating multiple documents (which is required).

If a resident asks for a group of several records, and the School Department determines it doesn’t have to respond because collecting those records is “compiling,” that’s wrong, Leary said.

“This could have a chilling effect,” he said. “They should reconsider that policy if people could misinterpret it.”

Sigmund Schutz, an attorney with Preti Flaherty in Portland and a director of the New England First Amendment Coalition, said there is no question about whether the FOAA requires compilation. If a person asks a school department for more than one document, even if the documents are unrelated, the department must comply.

“If that’s a clumsy way of saying they’re not going to create documents for people, that’s one matter,” he said. “But the statute requires compilation. They are required to do that.”

South Portland’s school policy is the same as Scarborough’s, but adds that the district is obligated “simply to produce records for public inspection.”

That qualifier is key in avoiding ambiguity, said Harry Pringle, an attorney with Drummond Woodsum in Portland, which represents the school district. He said that by stating the district will produce records, it’s clear that “compilation” means creating new documents or offering analysis, neither of which is required by state law.

“If you were to stop that sentence after ‘request for information,’ than it might be confusing,” Pringle said. “The intent is to say we’re not required to go ahead and do anyone’s research for them.”

Pringle also pointed to the state’s Freedom of Access Act FAQ, which explains the rights of citizens to public documents and meetings. He said the FAQ is crucial because it’s difficult to craft a policy that will never be misunderstood by anyone.

“Confusion is in the eye of the beholder,” he said. “Most public officials are trying to do the right thing.”

An imperfect law?

Several local governments – Cape Elizabeth, Freeport, Yarmouth, North Yarmouth, Bath, Topsham and Chebeague Island – receive so few requests for information that the municipalities have no public access policies at all.

But in Falmouth, near-constant requests for information – many from one resident – have prompted the town to familiarize itself with the public access law and adopt a protocol for fulfilling requests for information.

Nathan Poore, Falmouth’s town manager, said that over the last two years, “hundreds and hundreds” of hours of staff time have been dedicated to fulfilling requests for a sprawling nature of information – receipts, contracts, public transportation records, emails and credit card statements.

Poore said he agrees with the spirit of the law: providing open access to government. But he said Falmouth complies at a loss because the $10 per hour cap doesn’t reflect the true cost to the town.

Understanding the burden that some FOAA requests can have on small towns, the Right to Know Advisory Committee, which makes policy recommendations to the Judiciary Committee of the Maine Legislature, has issued a draft report recommending the hourly rate limit be raised to $15.

Judy Meyer, committee member and vice president of the Maine Freedom of Information Coalition, said high-level town officials, or a town attorney, often end up responding to complex requests.

The fee increase, therefore, “gets at some of that concern that these requests, when they’re burdensome, really impact operations in town offices,” said Meyer, who is managing editor of the Sun Journal in Lewiston.

Another proposed change to Maine’s FOAA law would require an agency or official to tell a requester how long it will take to comply with a public records request. Although the estimate is not binding, the agency or official must try to comply.

That requirement could cause further problems in Scarborough and South Portland, where policies say the towns don’t have to respond at all to lengthy or complicated requests.

The Judiciary Committee will hear the Right to Know Advisory Committee’s recommendations on Jan. 10.

Mario Moretto can be reached at 781-3661 ext. 106 or Follow him on Twitter: @riocarmine. Emily Guerin can be reached at 781-3661 ext. 123 or Follow her on Twitter: @guerinemily.