At the annual Maine Press Association conference on Oct. 14, several informative panels were held throughout the day in South Portland. Executive Editor of the Sun Journal Judith Meyer, Lynda Clancy, Executive Director of the PenBay Pilot and Attorney Sig Schutz of Preti Flaherty Law Firm answered various questions regarding Maine’s right to know.
Both Meyer and Clancy are members of the Right to Know Advisory Committee. In 2005, the committee was established by the legislature as a means of ensuring compliance in providing public records and proceedings to those seeking it. In summation, the committee works to secure easy access to information that is or should be considered the “peoples’ business.”
“The act of freedom of access to records concerning the peoples’ business is a constant work in progress. This means we, the press, need to really keep an eye on it and weigh in with a strong voice. It never stops… this is fundamental to who we are,” said Clancy.
The Right to Know Advisory convenes about five times each fall to discuss prominent laws relating to Maine’s Freedom of Access that are being crafted or amended. There are also a multitude of sub-committee meetings that occur depending on which issues in particular are raised. One notable example of such is the Public Records Exceptions Sub-committee.
There are approximately 300 exceptions to what the Freedom of Access Act (FOAA) defines as public records in this state. Some of these are insurance-related, and certain information is designated to remain confidential regarding individual privacy, specifically if it relates to healthcare. There is a database via maine.gov that functions as a search engine for every lawful exception.
In 2023, ordinances related to the public records process were called into question. For example, whether or not the freedom of access fee, which is currently capped at $25 per hour, should be adjusted. There is a concern that the price may be raised to $40. Considering how frequently journalists must utilize relevant documentation, a seemingly small fee still adds up significantly over time.
Another ordinance relates to how governmental bodies cite their purpose for calling an executive session, which the public cannot attend. It also considers ways that the legislature should go about addressing the problem of delayed or incomplete responses to document requests from officials.
As of now, there must be a response within five days, which acknowledges that the request has been received and will be fulfilled within a situationally reasonable amount of time, depending on the document’s contents and length. The line between being too compliant as opposed to overly assertive in attainment is a tightrope that journalists must walk constantly. One’s manner of communication plays a major role in the outcome.
“Those are the kinds of micro-fights that we fight on the ground. But the legislative fight is so huge because once it’s in law, that’s what drives the decisions in the court cases. So, it’s never okay not to get access that you think you should and stay silent. You really, really, really have to push back,” said Meyer.
Town Councils across Maine are required to create minutes for each meeting but are under no obligation to distribute or post them, but officials must share them if asked. However, in some cases, they are only provided in person and difficult to receive via email. Certain standards must be met within the content of minutes, such as roll call and results of the meeting. They become public records upon origination, meaning anyone can request a copy of unapproved minutes or take a picture of it immediately following adjournment.
There was consideration of extending the receipt deadline to 30 days or even 60. The issue is that most officials would likely put it off until closer to the legal requirement. By then, the information may no longer be relevant. Title 16 Section 804 was considered for amendment as well. It relates to police records and what is known as the “intelligent and investigative” exception for confidentiality.
A valid concern brought to the attention of the panelist is what’s known as the “Winslow and Lewiston Phenomenon.” There have been concerns about city councilors informing town businesses outside of publicly designated sessions. In Lewiston, they spoke of the local homeless shelter and election. This was proven through a stated confession from a Planning Board member who partook in one of the potentially unlawful gatherings.
Some of the other attendees claimed that it was an intentional action to distinguish who the politicians’ true supporters were, which is not a very sound rationale. As a result, many residents were upset, although some felt that those officials had a right to convene casually and have the city’s best interest at heart.
While the language of FOAA does mandate that government meetings must be open to the public and on record in Title I, section 403, subsection II, there is no specification of what constitutes a meeting. Section 406 states that the public must be notified of jurisdiction. The purpose of this law is not only to include the public in official deliberation but also to make them aware of all considerations within each matter, rather than simply the final vote.
“That would be something that one could take to court in the right circumstance, just to try to get the extent to which public notice is necessary and what the contents of public notice should be to fulfill their statutory requirement to provide notice. So what is notice? What constitutes reasonable notice to the citizens?” said Schutz.
Post-meeting meetings are not necessarily a bad thing, as two hours is sometimes not ample enough to go through each proceeding in its entirety. However, if there are three or more officials present in the continuation of these conversations, the public must be made aware ahead of time and allowed to attend. It is imperative for journalists to write about the circumstances wherein constitutional regulations are neglected.
“Even though it looks like ‘oh, the press is complaining,’ that’s not it. We’re informing the public that their representatives are meeting illegally,” said Meyers.
