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The Maine Freedom of Access Act (FOAA) has been in place for years. Having such a law is not enough, however. It needs to mean something.
Exceptions and loopholes, particularly related to public records, have provided too many off ramps for public officials and organizations to shield information from the people who fund them.
Even the Bangor Daily News’ recent court victory (along with the Portland Press Herald) to access complete police disciplinary records demonstrated the Maine FOAA’s limits. The papers had to go to court, in a process that took two years, to access unredacted public records — some of which eventually proved to be written so vaguely that they obscured the actual misconduct.
It should go without saying that final disciplinary documents should include information about the actual reason for the discipline.
Encouragingly, some current members of the Maine Legislature’s Judiciary Committee have indicated a willingness to take this issue up in the future. While the makeup of the Legislature will change after the upcoming election in November, these remarks offer good insight into how lawmakers could approach freedom of access issues moving forward.
“I do think it’s important for a final written decision imposing disciplinary action to contain information about the reason for discipline,” Democratic Sen. Anne Carney, a co-chair of the Judiciary Committee, told the BDN recently. “I think requiring information about conduct that is the basis of discipline is an important issue for the Right to Know Advisory Committee and Legislature to address.”
Rep. Thom Harnett, a Democrat from Gardiner, is the other judiciary co-chair. Both he and Carney are members of Maine’s Right to Know Advisory Committee. Harnett chairs the advisory committee and expects it to discuss discipline records when it meets before the new Legislature convenes in January.
“I think the law we have right now is good, but it’s been abused,” Harnett told the BDN. “The final disciplinary document, which is not a confidential document, has to explain the conduct and the discipline. If they’re not, I think they’re being written in a way that deliberately contravenes the purpose of the Freedom of Access Act.”
We’d again argue that the law should be strengthened to limit what Harnett has correctly pointed out as abuse. The fact that current law opens avenues for such abuse points to a need to update the law.
The accountability of public institutions and officials is not a Democratic or Republican issue. At least it shouldn’t be. This is an issue of good governance, and it is one the next Legislature should take up no matter which party is in charge.
“My opinion is I trust the judgment of the superior officer if he does not want to disclose what the misconduct is and keeps it within the department,” Republican Rep. James Thorne of Carmel told the BDN. “If they’re not violating the law, then they shouldn’t have to. I’m leaving it up to their judgment to say, ‘The fact that I disciplined them for misconduct is good enough.’”
We have to respectfully disagree with Thorne here. It is not good enough if the public doesn’t know why these public employees are being disciplined. And not unlike with police body cameras, this is an instance where increased transparency can actually help police departments and other law enforcement agencies.
When individual officers are disciplined but information is withheld from the public, it reflects poorly on the entire organization rather than the individual. Leadership clearly documenting officer misconduct and how it is dealt with, conversely, demonstrates what actions are not tolerated. Sunlight, as former U.S. Supreme Court Justice Louis Brandeis said, is the best disinfectant.
Lawmakers can and should take steps, like making sure final disciplinary documents actually contain information about why a public employee is being disciplined, to strengthen the Maine public’s existing right to know. That right needs to mean something.