Maine

A statewide public records audit released in January 2003 found that many public officials still violate the Freedom of Access Act. Auditors frequently were asked to identify themselves when they requested information. Law enforcement agencies were the most frequent violators of the access law.

The law. The Freedom of Access Act defines a public record to include “any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension that is in the possession or custody of an agency or public official of this State or any of its political subdivisions.” Me. Rev. Stat. Ann. tit. 1, § 402(3) (1998). Records are available in either electronic or paper form; however, a requester who seeks records in a form other than one in which they exist may be required to pay the costs of translation. § 408. A law enacted in April 1998 allows creation of a new state system to provide fee-based electronic access to public information available under the Freedom of Access law and other statutory provisions. § 531. The Information Resource of Maine, or “InforME,” network is intended to provide enhanced access to state public records. § 533.

Cases & opinions. None found.

Fees. An agency may charge “the cost of copying any public record. . . . Whenever inspection cannot be accomplished without translation of mechanical or electronic data compilations into some other form,” the state may charge in advance for “the cost of translation.” Me. Rev. Stat. Ann. tit. 1, § 408 (1998). Fees for access to the InforME network must be reasonable, but sufficient to support the network and subsidize the maximum amount of information to be provided at no charge. § 534.

If a translation of the data is required, the governmental agency may charge a fee for such service in advance. § 408. Through InforME fees for enhancements of public records are charged. If no enhancements are sought, then the records are available either at no cost or for a statutory fee, such as for certain corporate records or driving records. §§ 532-538.

E-mail. The Act does not specifically address e-mail, but if the e-mail message is in the custody of an agency or official of government, (for example, in digital form on a storage device in the custody of an agency or official of government) and contains information that relates to the transaction of governmental or public business, it is available as a consequence of the definition of public records (i.e. “any mechanical or electronic data compilation from which information may be obtained.”) Me. Rev. Stat. Ann. tit. 1, § 402(3).

Software. The definition of public records is broad enough to include both an electronic data collection and the operating program. Public records are not limited to media or information to which the government has legal title. Possession or custody is sufficient. Consequently, it is immaterial that the program is only licensed for use by the government, as is the case with most software. Moreover, license restrictions in and of themselves would not override the Freedom of Access Act. The Copyright Act would, however, preempt any state law that purports to require reproduction of material protected by a third party’s copyright.

Online. The state has extended online dissemination of records substantially. Nearly all business records of the secretary of state are available, along with all state regulations, statutes and legislative information over the state’s Web site, on which most state agencies now have a page. The official State of Maine Web page can be accessed online. InforME: The Information Resource of Maine was created to manage the state’s Web page and to create and maintain E-Government services through online transactions. Me. Rev. Stat. Ann. tit. 1, §§ 531-538. It is not yet entirely clear how the State’s InforME contract will affect access to public records. The statute creating InforME provides that it may not affect the rights of persons to inspect or copy public records under the Freedom of Access Act (§533) and further provides that the InforME Board may not authorize InforME to charge for a service that merely provides access to public records and data in the form they are maintained by the data custodian (§534.5.F(1)).

Resources. Maine Press Association access guide; Maine Freedom of Information Coalition: