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Saturday marks the end of another Sunshine Week, the yearly event recognizing the importance of transparent government and the right to access public information. Ensuring that the government remains open to the people it serves is a year-round effort, and one that sadly still faces too many barriers in Maine and around the country.
The Associated Press conducted a national review of state open government laws, timed to coincide with Sunshine Week, and found that in most states, “the only meaningful option for residents to resolve complaints about agencies wrongfully withholding public records is to file costly lawsuits.”
Maine, as we know all too well, is among that unfortunate majority. Each year around this time, we find ourselves writing about a Maine Freedom of Access Act that is riddled with exceptions and the backward way members of the public often need to sue just to access public documents.
“Generally, the public’s only recourse in open government disputes in Maine is to sue in court,” the AP wrote in its recent report. “The Public Access Ombudsman, which is part of the Maine Office of the Attorney General, can answer inquiries from the public about open meetings and public records law, as well as mediate between residents and public bodies in open government disputes. But the ombudsman can’t independently enforce open government law.”
To once again state what should be obvious, public documents belong to the public. Members of the public (including news organizations) shouldn’t have to go to court in order to access information that already belongs to them. When the public funds entities and activities, they are entitled to information about those entities and activities.
We said as much last year, after the state’s judicial branch ruled that a county commissioner’s group acted in “bad faith” by not fulfilling a records request under the Maine Freedom of Access Act (FOAA).
Maine Superior Court Justice Daniel Billings said the Maine County Commissioners Association’s self-funded Risk Management Pool was “deceptive and abusive of the FOAA process” by not providing requested documents related to a federal excessive force lawsuit involving the Kennebec County Correctional Center. The judge ordered the risk management pool to release the wrongfully withheld documents and pay attorneys’ fees. The Maine Supreme Judicial Court agreed.
This was the clear and correct outcome, but a costly lawsuit shouldn’t have been necessary in the first place to counteract such an obvious violation of the public’s right to know.
The FOAA process should ensure public access to public information, not rely on a cumbersome and ultimately backward enforcement mechanism that effectively allows public officials and entities to hide behind the high cost of bringing a lawsuit. The public shouldn’t have to take legal action to make sure that public officials actually follow public records requirements and timelines contained in Maine law. Officials and entities should follow those requirements as a default, and Maine needs more tools in its FOAA toolkit to ensure that they do.
This is not a new need. In 2022, New England First Amendment Coalition Executive Director Justin Silverman wrote a column in the BDN addressing some of the shortcomings of Maine’s FOAA law. He highlighted several avenues for strengthening enforcement.
“Whether we grant the state’s public records ombudsman powers to enforce the law or provide statutory incentives such as mandatory attorney fees for prevailing plaintiffs, we need better tools to protect the public’s right to know,” Silverman wrote.
We continue to agree. Organizations, including the BDN, have secured right-to-know victories in court in recent years, and some strides have been taken to shore up FOAA weaknesses. But even the progress, while welcome, has been timid and uneven. It is time for a full commitment to transparency across Maine government.
In yet another example of the current limits of Maine’s freedom of access law, Ellsworth residents have been left wondering why their former police chief (and former city manager) was fired.
“While the lack of public information is frustrating for the rest of the city staff and the community, the employee’s right to privacy must prevail,” a statement on the city’s Facebook page said recently.
Yes, there is a constant balancing of rights, including privacy rights. But far too often in Maine and around the country, the public’s right to know is taking a back seat. Sunshine Week is just one of many reminders that this needs to change.
