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  • First Amendment Coalition opposes ME legislation that would delay release of public records

    The New England First Amendment Coalition recently opposed Maine legislation that would cause unnecessary delays to the release of public records. 

    The legislation, L.D. 1432, allows an agency or official to "require payment of all costs before the public record is provided to the requester" under the state's Freedom of Access Act

    If L.D. 1432 were to become law, NEFAC explained, inexpensive and routine documents could be withheld for the sake of the relatively low fees collected in return, creating "a system ripe for obfuscation and needless delay." 

    The coalition submitted written testimony April 24 to the state's Committee on the Judiciary, which is currently considering the legislation. The testimony was provided on behalf of NEFAC by Maine attorney and coalition board member Sigmund Schutz and Justin Silverman, NEFAC's executive director.

    "L.D. 1432 will discourage public records requests under FOAA and cause unnecessary delay by state agencies and local municipalities," they wrote. "Worse, the law would violate the spirit of FOAA by making it more difficult for Maine citizens to monitor their government."
    As explained in the letter, the concern L.D. 1432 seeks to address - loss of money from unpaid records requests - is already covered by the state's public records law:

    L.D. 1432 would allow a custodian to require advance payment for all costs of producing a record - no matter how small - before that record is provided. While this may seem like a practical way for agencies to recoup their costs and prevent non-payment of fees, there is already a sufficient safeguard for agency budgets: § 408-A (10). This provision of FOAA allows custodians to require advance payment for requests made by individuals who have previously failed to pay a fee or are requesting records that will cost more than $100 to produce. Under § 408-A (10), advance payment can be required even before any time is expended on the search and retrieval process.

    The coalition outlined several scenarios under which the legislation could lead to excessive delays, including when a fee dispute arises between the custodian and requester. Rather than releasing the reports in expectation of future payment, the custodian in this example could instead use the new law to withhold all documents until a court adjudicates the conflict and payment is made. The public interest in those reports would meanwhile dissipate in the delay.

    The legislation also conflicts with the spirit of FOAA, the coalition testified, and would ultimately cost more to the public's right to know than whatever financial savings may occur. 

    "The intent of FOAA is to open government records to public view so Maine residents can better oversee the work being done on their behalf," according to the coalition. "The law should facilitate the flow of information not allow basic low-cost record requests to bottleneck while payment is pending."