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Maine

Open Government Guide

Author

Sigmund D. Schutz
PRETI, FLAHERTY, BELIVEAU, &
PACHIOS, LLP
P.O. Box 9546
One City Center
Portland, Maine 04112-9546
Tel: 207-791-3000
Fax: 207-791-3111
Internet: www.preti.com

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Foreword

Access to government records and meetings in Maine is governed by statute, the Maine Freedom of Access Act (the “FOAA” or the “Act”), 1 M.R.S.A. §§ 400-414.  The Maine Legislature adopted the FOAA in 1959 as Public Law, Chapter 219 (Legislative Document 6: "An Act Pertaining to Freedom of Access to Public Records and Proceedings"). The FOAA as recodified and amended is found in Sections 401-414 of Title 1 of the Maine Revised Statutes. The FOAA covers access to public records and public meetings (referred to as “public proceedings”). The Maine Constitution does not contain a provision concerning access to public records or meetings.

The FOAA broadly applies to state legislative, executive, and administrative bodies, all county, local, and governmental bodies, "blue ribbon" and hybrid bodies, the Board of Trustees of the state universities, and other government bodies. The FOAA does not apply to judicial proceedings and court records.  The Maine Judicial Branch has adopted its own public information and confidentiality policy.

The FOAA contains a variety of exceptions, including for records that have been "designated confidential by statute." As a result, many exceptions to public access are found in statutes outside the FOAA itself.  To determine whether a record (or discussion of that record) is confidential requires review of the FOAA as well as the statutes that relate to the government entity involved or the subject matter of the record. For example, access to law enforcement information largely is controlled by statutes outside the FOAA, including the Criminal History Record Information Act, 16 M.R.S.A. §§ 701 - 710.

The FOAA has been the subject of frequent amendments. The Maine State Law and Legislative Library in Augusta, Maine, has compiled the legislative history of the FOAA.

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Open Records

I. Statute

A. Who can request records?

Any person “has the right to inspect and copy any public record . . . .”  1 M.R.S.A. § 408-A.

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1. Status of requester

The status of the requester is not relevant to a person’s right to inspect and copy public records.   However, the status of the requester may allow access to certain categories of records that are otherwise exempt from public disclosure (e.g., right of the subject of a criminal proceeding to access to otherwise confidential criminal records or employee access to otherwise confidential personnel records).

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2. Purpose of request

A requester need not state the purpose of a request to exercise the right to inspect and copy public records. However, the purpose of a request is relevant in some narrow instances (e.g., certain categories of records may be released only for qualified research purposes).

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3. Use of records

Public records may be used for any purpose.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

The Act contains a list of entities required to conduct public proceedings, but does not list those entities that are subject to the public records requirements under the Act.  Compare 1 M.R.S.A. §§ 402(2) (public proceedings) and 402(3) (public records); see also Moore v. Abbott, 2008 ME 100, ¶ 28, n.2, 952 A.2d 980 (Levy, J., dissenting).  In general, records are public so long as they "have been received or prepared for use in connection with the transaction of public or governmental business or that contain information relating to the transaction of public or governmental business." 1 M.R.S.A. § 402(3). Whether records are public depends on a governmental function test, not the particular office held by the person or group possessing the record. See Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980 (“In evaluating whether an entity or individual, individually or collectively, qualifies as ‘an agency or public official’ for purposes of the Freedom of Access Act, we look to ‘the function that the entity performs.’”).

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1. Executive branch

All records of the executive branch, including the Governor, are subject to the Act if the records have been received or prepared for use in connection with the transaction of public or government business or if they contain information relating to the transaction of public or governmental business. 1 M.R.S.A. § 402.

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2. Legislative bodies

Records of the Legislature are subject to the Freedom of Access Act, but legislative papers and reports, working papers, drafts, internal memoranda, and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature. 1 M.R.S.A. § 402(3)(C).

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3. Courts

Judicial records are not subject to the Freedom of Access Act.  See Asselin v. Superior Court, 2014 Me.Unpub. LEXIS 3 (Jan. 22, 2015).  The Legislature has, by statute, limited access to certain court records and proceedings, such as juvenile proceedings, proceedings regarding sterilizations for incompetent people (34-B M.R.S.A. § 7014), approval of a minor's abortion (22 M.R.S.A. § 1597-A) and commitments to mental institutions (34-B M.R.S.A. § 3864). The Supreme Judicial Court of Maine has adopted a Public Information and Confidentiality Policy, JB-05-20 (A. 9-17), which governs the release of public information and the protection of confidential and other sensitive information. The policy defines confidential records to include information made confidential by statute, rule or policy; information subject to a protective order; information regarding a judge or law clerk's notes, drafts or working papers; and information relating to a pending or outstanding search warrant, arrest warrant or confidential law enforcement information.

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4. Nongovernmental bodies

Whether an entity or individual, individually or collectively, qualifies as “an agency or public official” for purposes of the Freedom of Access Act, turns on “the function that the entity performs.”  See Turcotte v. Humane Society of Waterville, 2014 ME 123, ¶¶ 6-7, 103 A.3d 1023; Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857.   The four factors considered in making that determination are:

  1. Whether the entity is performing a governmental function;
  2. Whether the funding of the entity is governmental;
  3. The extent of governmental involvement or control; and
  4. Whether the entity was created by private or legislative action.

Moore, 2008 ME 100, ¶ 11.  “[A]lthough these factors should be considered and weighed, an entity need not strictly conform to each factor to become a public agency or public official.”  Id.

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5. Multi-state or regional bodies

To the extent that Maine governmental officials are serving on multi-state or regional bodies in connection with the transaction of governmental or public business, the public may request records from the officials serving on those bodies.

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6. Advisory boards and commissions, quasi-governmental entities

The records of advisory boards, commissions, and other bodies created by government action are generally public, unless created by executive order and designated confidential by the terms of the order establishing the body. 1 M.R.S.A. § 402(3)(J). 

The full membership meetings of any association, the membership of which is composed of counties, municipalities, school administrative units or other political or administrative subdivisions, are open to the public – along with boards, commissions, agencies or authorities of any such subdivisions, or any combination of any of these entities. 1 M.R.S.A. § 402(2)(D).

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7. Others

The FOAA applies to Indian Tribes within the state unless engaged in purely internal tribal matters, such as in the deliberative process of self-government. Great Northern Paper v. Penobscot Nation, 2001 ME 68, 770 A.2d 574.

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C. What records are and are not subject to the act?

1. What kinds of records are covered?

All types of records are covered by the Act.

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2. What physical form of records are covered

All records in any physical form are covered by the Act.  The FOAA applies to “any written, printed or graphic matter or 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.”  1 M.R.S.A. § 402(3).

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3. Are certain records available for inspection but not copying?

All records are available for both inspection and copying. 1 M.R.S.A. § 408(1).

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4. Telephone call logs

Telephone call logs are public if received or prepared for use in connection with the transaction of public or government business or if they contain information relating to the transaction of public or governmental business.  1 M.R.S.A. § 402.  Information about purely private calls, even when made using government supplied phones, are not public records.  See Doyle v. Town of Falmouth, 2014 ME 151, ¶ 14, 106 A.3d 1145 (“records of personal telephone calls . . . that were unrelated to the transaction of public or government business do not fall within the definition” of public records).

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5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

Yes.  The requester can ask for a copy of the record “either as a printed document of the public record or in the medium in which the record is stored, at the requester’s option, except that the agency or official is not required to provide access to an electronically stored public record as a computer file if the agency or official does not have the ability to separate or prevent the disclosure of confidential information contained in or associated with that file.”  1 M.R.S.A. § 408-A(7).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, but the requester must pay the actual cost of serving for, retrieving and compiling the requested record of not more than $15 per hour after the first hour. 1 M.R.S.A. § 408-A(8)(B).

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c. Does the existence of information in electronic format affect its openness?

No. Electronic format records are public records to the same extent as paper records.  1 M.R.S.A. § 402(3).

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d. Online dissemination

The Act does not require that public records be made available on-line. Any public entity that has a publicly accessible site on the internet associated with it must develop a privacy policy and post notice of it on its website.  14-A M.R.S.A. § 541.

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

Computer programs, technical data, logic diagrams and source code related to data processing or telecommunications that qualify as trade secrets are not public records.  5 M.R.S.A. § 1976(1).  Otherwise, “any document created or stored on a State Government computer must be made available in accordance with” the public records law.  5 M.R.S.A. § 1976.

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The public agency or official may charge a reasonable fee “to cover the cost of copying” and an hourly rate of $15 per hour after the first hour for staff time responding to a request.   1 M.R.S.A. § 408-A(8).  The statute does not contain a schedule of copying fees, so fees vary widely.

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2. Particular fee specifications or provisions

An agency or official may charge a "reasonable fee to cover the cost of copying." 1 M.R.S.A. § 408-A(8)(A). An agency or official may also charge a fee to cover the actual cost of searching for, retrieving, and compiling the requested public record of not more than $15 per hour after the first hour of staff time per request. 1 M.R.S.A. § 408-A(8)(B). Compiling the public record includes reviewing and redacting confidential information. Id.

An agency or official may charge the actual cost of converting a record from an electronic form to a readable form. 1 M.R.S.A. § 408-A(8)(C).  An agency or official may also charge for the actual mailing costs to mail a copy of a record.  Id. § 408-A(8)(E).

An agency may not charge for inspection, unless the record cannot be inspected without being compiled or converted.  1 M.R.S.A. § 408-A(8)(D).

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3. Provisions for fee waivers

An agency or official may waive part or all of a fee if the requester is indigent or if release of the public record requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester. 1 M.R.S.A. § 408-A(11).

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4. Requirements or prohibitions regarding advance payment

An agency or official may not require payment in advance unless the estimated total cost exceeds $100 or the requester has previously failed to pay a properly assessed fee in a timely manner.  1 M.R.S.A. § 408-A(10).  However, an agency or official may also require payment of all costs before the public record actually is provided to the requester.  1 M.R.S.A. § 408-A(8)(F).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Yes.  Public agencies have attempted to impose exorbitant costs on requesters.  An excessive fee may be deemed a constructive denial of the request, and appealed to Superior Court.

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6. Fees for electronic records

E. Who enforces the Act?

The Attorney General or any District Attorney may enforce the Act, as well as any private requester of records.  A willful violation of the Act is subject to a $500 fine, which may only be sought by the State.  1 M.R.S.A. § 410.

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1. Attorney General's role

The Attorney General may enforce the Act, but prosecutions are rare.

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2. Availability of an ombudsman

An ombudsman position exists within the Department of the Attorney General.  5 M.R.S.A. § 200-I.  The ombudsman is authorized to “[r]espond to and work to resolve complaints made by the public and public agencies and officials” concerning the FOAA.  Id. § 200-I(2)(C).  The ombudsman’s website can be accessed here: https://www.maine.gov/foaa/ombudsman/index.htm (last visited Oct. 2, 2018).

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3. Commission or agency enforcement

None.

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F. Are there sanctions for noncompliance?

For every willful violation of the Act, the state government agency or local government entity whose officer or employee committed the violation shall be liable for a civil violation for which a forfeiture of not more than $500 may be adjudged.  1 M.R.S.A. § 410.  The fine may only be collected by the state, not private persons.

A substantially prevailing plaintiff may recover reasonable attorney’s fees and litigation expenses if the court determines that the refusal to provide access to public records or illegal action at a public meeting “was committed in bad faith.”  1 M.R.S.A. § 409(4).  Attorney’s fees and litigation costs may not be awarded to or against a federally recognized Indian tribe.  Id.

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

The FOAA generally does not contain proactive requirements for the disclosure of public records on agency or public official websites, but many agencies and officials make records in high demand available on their websites as a public service.  Doing so also is also an administrative convenience as it cuts down on the number of records requests.

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3. Records retention requirements

The Maine State Archives has issued records retention schedules and policies governing the retention of agency records, available here.  See 5 M.R.S.A. § 95.   State Archives policy and rules establish uniform records management practices throughout Maine government. Records retention schedules dictate how long any record must be retained.  Records retention schedules apply to both paper and electronic records.

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4. Provisions for broad, vague, or burdensome requests

Access to public records is limited by the twelve exemptions contained within the FOAA itself and by many statutes outside the FOAA governing public access to particular types of records. 1 M.R.S.A. § 402(3).  If records are not within the scope of an exemption they are public.

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A. Exemptions in the open records statute

1. Character of exemptions

The Maine Legislature has adopted exemptions to the FOAA on an ad hoc basis.  Some of them are contained in the FOAA itself.  See 1 M.R.S.A. § 402(3).  Others are scattered through Maine’s statutes and address particular subjects or special interests.  The exemptions vary in scope and purpose.

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2. Discussion of each exemption

The following categories of records or information are not public records under the FOAA:

  1. Records Designated Confidential by Statute. The most troublesome general exemption contained in the FOAA is an exemption for records otherwise designated confidential by statute. 1 M.R.S.A. § 402(3)(A). There are many exemptions scattered throughout Maine statutes. Each one must be consulted individually. A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here.
  2. Privileged Records. Records "that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding" are exempt from disclosure. 1 M.R.S.A. § 402(3)(B). The general purpose of this exemption is to achieve consistency between rules that would be applied to government agencies and officials in a lawsuit and the FOAA. An unpublished opinion of the Attorney General's Office advised the Bureau of Consumer Protection that it need not allow inspection of records containing the names of persons who had filed complaints, relying on the state's privilege to withhold names of informers. See M.R.Evid. 508. The Maine Supreme Court subsequently discussed the exemption in Moffett v. City of Portland, 400 A.2d 340 (Me. 1979), which held that the transcripts of statements made by police officers during an internal police disciplinary investigation were protected by the Fifth Amendment privilege of the officers and therefore need not be made available for inspection by the press. On at least one occasion a municipality joined with a taxpayer in an action requesting a declaratory judgment that business records submitted in support of a property tax abatement were trade secrets and therefore privileged. The attorney-client privilege applicable to governments and government agencies only applies to communications concerning a pending investigation, claim or action and then only if disclosure would seriously impair the government's ability to conduct that investigation or proceeding in the public interest. M.R.Evid. 502(d)(6); Morrell v. Bd. of Selectmen, Town of Wiscasset, Docket No. CV-01-001, (Lincoln Superior Ct., Feb. 27, 2001). The court has held that records within the work product “privilege” are not subject to public disclosure.  Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶¶ 16-17, 174 A.3d 314, 318–19 (Me. 2017).
  3. Legislative Papers and Reports. The open records statute contains an exemption for legislative papers and reports until they are signed and publicly distributed and records, working papers, drafts and inter-office and intra-office memoranda used or maintained by any legislator or legislative employee to prepare proposed legislative papers or reports. 1 M.R.S.A. § 402(3)(C).
  4. Labor Negotiations. Materials prepared "specifically and exclusively" for negotiations by a "public employer in collective bargaining with its employees and their designated representatives" are exempt from disclosure. 1 M.R.S.A. § 402(3)(D). The concern originally prompting this exemption arose out of collective bargaining negotiations between a public employer and its employees. The purpose was to allow the public employer to develop a bargaining strategy that would not be known by its employees in advance. Despite the plain language of the exemption, a few local governments have assumed that it may be used in other negotiations.
  5. University of Maine Faculty and Administrative Committee Records. An exemption protects "records, working papers, inter-office and intra-office memoranda used by or prepared for faculty and administrative committees of the Maine Maritime Academy and the University of Maine." 1 M.R.S.A. § 402(3)(E). The chief purpose of the exemption was to protect such records as academic examinations and tests from premature disclosure.
  6. Exemption Not Lost by Transfer to Other Governmental Entity. An exemption applies to records in the possession of local governments or intra-state organizations that would be declared confidential if they were in the possession of an agency or official of the state or a political or administrative subdivision thereof. 1 M.R.S.A. § 402(3)(F).
  7. Insurance Records. An exemption protects "materials related to the development of positions on legislation or materials that are related to insurance or insurance like protection or services which are in the possession of an association" whose membership is composed exclusively of political or administrative subdivisions of the state or of other organizations of any such subdivision. 1 M.R.S.A. § 402(3)(G).
  8. Medical Records and Reports of Municipal EMS. An exemption protects from disclosure medical records and reports of municipal ambulance, rescue and emergency medical service units. 1 M.R.S.A. § 402(3)(H).
  9. Juvenile Records. Juvenile records and reports of municipal fire departments regarding the investigation and family background of a juvenile fire setter are confidential. 1 M.R.S.A. § 402(3)(I).
  10. Gubernatorial Advisory Organizations. Working papers, including records, drafts and inter-office and intra-office memoranda, used or maintained by certain advisory boards and commissions established, authorized or organized by law or resolve or by Executive Order issued by the Governor or by any staff or members of the board or commission are confidential, unless such working paper is distributed by a member or in a public meeting. 1 M.R.S.A. § 402(3)(J).
  11. Municipal Recreation Records Concerning Minors. Personally identifying information concerning minors participating in municipal recreation and non-mandatory educational programs are confidential if the municipality enacts an ordinance specifying the circumstances in which the records will be withheld from disclosure. 1 M.R.S.A. § 402(3)(K).
  12. Security Records. An exemption protects records describing security plans, security procedures or risk assessments prepared specifically for the purpose of preventing or preparing for acts of terrorism, but only to the extent that release of information contained in the record could reasonably be expected to jeopardize the physical safety of government personnel or the public. 1 M.R.S.A. § 402(3)(L). For purposes of this paragraph, "terrorism" means conduct that is designed to cause serious bodily injury or substantial risk of bodily injury to multiple persons, substantial damage to multiple structures whether occupied or unoccupied or substantial physical damage sufficient to disrupt the normal functioning of a critical infrastructure. Id.
  13. Information Technology Infrastructure and Systems. An exemption protects records or information describing the architecture, design, access authentication, encryption or security of information technology infrastructure, systems, and software. 1 M.R.S.A. § 402(3)(M).
  14. Social Security Numbers. Social security numbers are confidential. 1 M.R.S.A. § 402(3)(N).
  15. Personal Contact Information Concerning Public Employees.  Home address, home telephone number, home facsimile number, home e-mail address and personal cellular telephone number and personal pager number information for public employees is exempt, unless that information is made public by other law.  1 M.R.S.A. § 402(3)(O). This exemption does not apply to elected officials.
  16. Geographic Information on Trails on Private Land.  Geographic information regarding recreational trails that are located on private land that are authorized voluntarily as such by the landowner with no public deed or guaranteed right of public access, unless the landowner authorizes the release of the information. 1 M.R.S.A. § 402(3)(P).
  17. Department of Corrections Security.  Security plans, staffing plans, security procedures, architectural drawings or risk assessments prepared for emergency events that are prepared for or by or kept in the custody of the Department of Corrections or a county jail if there is a reasonable possibility that public release or inspection of the records would endanger the life or physical safety of any individual or disclose security plans and procedures not generally known by the general public. Information contained in records covered by this paragraph may be disclosed to state and county officials if necessary to carry out the duties of the officials, the Department of Corrections or members of the State Board of Corrections under conditions that protect the information from further disclosure. 1 M.R.S.A. § 402(3)(Q).
  18. [intentionally omitted]
  19. Certain E-mail Mailing Lists. E-mail addresses obtained by a political subdivision of the State for the sole purpose of disseminating noninteractive notifications, updates and cancellations that are issued from the political subdivision or its elected officers to an individual or individuals that request or regularly accept these noninteractive communications. 1 M.R.S.A. § 402(3)(S).
  20. Certain Department of Marine Resources Trade Secrets. Records describing research for the development of processing techniques for fisheries, aquaculture and seafood processing or the design and operation of a depuration plant in the possession of the Department of Marine Resources. 1 M.R.S.A. § 402(3)(T).
  21. Railroad Hazardous Waste Records. Records provided by railroad companies describing certain information about hazardous materials transported by railroad. 1 M.R.S.A. § 402(3)(U).
  22. Community Well-Being Check Program Information.  The Act protects from disclosure participant application materials and other personal information obtained or maintained by a municipality or other public entity in administering a community well-being check program, except that a participant's personal information, including health information, may be made available to first responders only as necessary to implement the program. A “community well-being check program” means a voluntary program that involves daily, or regular, contact with a participant and, when contact cannot be established, sends first responders to the participant's residence to check on the participant's well-being. 1 M.R.S.A. § 402(3)(V).
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B. Other statutory exclusions

The most troublesome general exemption contained in the FOAA is the exemption for records otherwise designated confidential by statute. 1 M.R.S.A. § 402(3)(A). There are many such exemptions scattered throughout Maine statutes.  A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here.  The exemptions are too numerous to list here.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Statutory exceptions to the FOAA are to be narrowly construed in favor of public access. See, e.g., Citizens Commc’ns Co. v. Att’y Gen., 2007 ME 114 ¶ 9, 931 A.2d 503.  The Law Court generally recognizes that excepting records from the public’s right-to-know is the Legislature’s prerogative.  It has, however, created a judicial exception to the FOAA for documents prepared for lawful executive sessions.  Blethen Me. Newspapers, Inc. v. Portland Sch. Comm., 2008 ME 69, ¶ 18, 947 A.2d 749 (“Because the executive session was lawful, documents prepared for use during the executive session and notes made during the executive session are not subject to public examination.”)

The FOAA recognizes evidentiary privileges, i.e., records "that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding" are exempt from disclosure. 1 M.R.S.A. § 402(3)(B). Any record that would be privileged against disclosure in litigation involving a state agency is not subject to disclosure as a public record. Maine recognizes the typical common law and constitutional privileges recognized in other states. The typical privileges bearing on disclosure of public records are the privilege against self-incrimination, Moffett v. City of Portland, 400 A.2d 340 (Me. 1979), the privilege not to disclose the identity of an informer (M.R. Evid. 509), a limited lawyer-client privilege (M.R. Evid. 502), trade secrets (M.R.Evid. 507), a physician/psychotherapist potential privilege (M.R. Evid. 503), and privileges for communications to sexual assault counselors and victim and witness advocates. 16 M.R.S.A. § 53-C.

The attorney-client privilege applicable to government clients only applies to communications concerning a pending investigation, claim or action and only when disclosure would seriously impair the conduct of that investigation or proceeding.  M.R.Evid. 502(d)(6); Morrell v. Bd. of Selectmen, Town of Wiscasset, Docket No. CV-01-001, (Lincoln Superior Ct., Feb. 27, 2001).

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Maine does not have county coroners. That function is performed by the Chief Medical Examiner, a state office. Most records and reports of the Office of the Chief Medical Examiner regarding a specific medical examiner case are not public records. 22 M.R.S.A. § 3022(8).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Information concerning intelligence and investigative information that is collected by or prepared at the direction of or kept in the custody of any Maine criminal justice agency is subject to the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §802.  The Act applies to records collected by or prepared by or at the direction of a criminal justice agency while performing the administrative of criminal justice or, for the Department of the Attorney General and the district attorneys’ offices, the administration of civil justice.

Information concerning active Department of Labor investigations is generally confidential. 26 M.R.S.A. § 3.  Names of individuals, firms or corporations are confidential.  26 M.R.S.A. § 3.  The director may release information and reports to other government agencies if the director believes that the information will serve to further the protection of the public or assist in the enforcement of local, state, and federal laws.  26 M.R.S.A. § 3.

Other civil administrative enforcement records are public.

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C. Bank records

Information obtained in any fashion by the Superintendent of Banking pertaining to supervised financial institutions is confidential. 9-B M.R.S.A. § 226. Applications for a charter, merger, branch, acquisition, subsidiary formation, name change or other similar request are available for public inspection, but any confidential material regarding the applicant must be deleted from the public copy. Id. at § 252.

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D. Budgets

Budgets are matters of public record.  In addition, any “discussion of a budget or budget proposal” is public, regardless of whether the discussion involves particular employees’ salaries. 1 M.R.S.A. 405(6).  Maine provides certain state budget information, including payroll and vendor payment information on its website, here: http://opencheckbook.maine.gov/transparency/index.html (last visited Oct. 2, 2018.

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E. Business records, financial data, trade secrets

The FOAA contains an exception to the definition of “public records” for trade secrets.  “Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding” fall outside the definition of the term “public records.”  1 M.R.S.A. § 402(3)(B).  Maine recognizes a privilege protecting disclosure of trade secrets.  M.R.Evid. 507 and M.R.Civ.P. 26(c).  The Law Court has interpreted the trade secrets privilege as an exception to the FOAA.  Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶¶ 20-22, 769 A.2d at 864-65 (citing M.R.Evid. 507); see also Medical Mut. Ins. Co. of Maine v. Bureau of Ins., 2005 ME 12, ¶¶ 11-14, 866 A.2d 117, 121 (citing M.R.Civ.P. 26(c)).

 

To determine whether information in a record qualifies as a “trade secret” exempt from disclosure under the FOAA, the Law Court applies the definition of “trade secret” found in the Uniform Trade Secrets Act.  “For purposes of the section 40[2](3)(B) exception, we have used the definition of ‘trade secret’ in the Uniform Trade Secrets Act: information that [d]erives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure.”  Medical Mut. Ins. Co., 2005 ME 12, ¶ 13 (internal quotation marks omitted).  To qualify as a “trade secret” information must also be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  10 M.R.S.A. § 1542(4)(B).  Information that is not subject to such reasonable efforts must be disclosed.  See Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶ 22 (“Because the compensation records at issue have not been the subject of efforts to maintain their secrecy, they are not trade secrets . . . .”).

In addition to the generally applicable exemption for trade secrets, some Maine statutes identify various records or information as confidential because they constitute trade secrets or similar types of business or competitive information.

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F. Contracts, proposals and bids

All contracts of public agencies, state and local, are public records from the time of execution or opening of the bids.  Maine’s generally applicable competitive bidding laws provide that any proposal for services is a public record once a contract has been awarded.  See 5 M.R.S.A. § 1825-B(6) (“Each bid, with the name of the bidder, must be entered on a record.  Each record, with the successful bid indicated, must be open to public inspection after the letting of the contract.”); and 18-554 C.M.R. Ch. 110 § 2(A)(v) (“All proposals shall be sequestered . . . until notification of award by the contracting agency after which time they become public record.”).  Sealed proposals submitted for competitive bidding shall remain sealed until the time and place specified in the advertisement for the bids. 5 M.R.S.A. § 1745 (“Sealed proposals for any public improvements . . . shall remain sealed until opened at the time and place stated in the advertisement or as the Governor may direct.”).

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G. Collective bargaining records

Proposals and other records prepared by a public agency for negotiations with an organization of its employees are not available until the negotiations have been concluded. 1 M.R.S.A. § 402(3)(D).

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H. Economic development records

Five categories of documents relating to economic development are confidential by statute.  5 M.R.S.A. § 13119-A.  These include proprietary information, tax or financial information, financial statements, credit assessments, and any records in connection with the matching of potential investors with business in the State by the Department of Economic and Community Development or a municipality.  Id.

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I. Election Records

The Maine Clean Elections Act is part of Title 21-A of the Maine Revised Statutes, which broadly provides that “[a]ll lists, books, documents and records required to be prepared by or filed with a public official are public records, except as otherwise provided in this Title.  Public records are open to public inspection during regular business hours under proper protective regulations made by the official charged with their custody.”  21-A M.R.S.A. § 22(1).

 

The MCEA provides that “[r]ecords containing information provided by individuals who have made qualifying contributions over the Internet are confidential, except for the name of the individual making the contribution, the date of the contribution, the individual’s residential address and the name and office sought of the candidate in whose support the contribution was made.”  21-A M.R.S.A. § 1125(3) (emphasis added).  The MCEA does not provide for any confidentiality with regard to information provided by individuals who make qualifying contributions by cash, check, or money order or who sign a paper “Receipt and Acknowledgement” form.

 

The MCEA provides that “[a] participating candidate must submit qualifying contributions, receipts and acknowledgment forms, proof of verification of voter registration and a seed money report to the commission . . .” pursuant to 21-A M.R.S.A. § 1125(4).  These submissions are not exempt from the FOAA.

The Commission may receive complaints from any person related to noncompliance with the Act pursuant to Code Me.R. 94-270, Chapt. 1 § 2(c).  The MCEA does not provide that any complaints are confidential.

The exception to public access to records related to Commission investigations is found at 21-A M.R.S.A. § 1003(3-A), which provides that “investigative working papers,” as narrowly defined, are confidential.

Maine has a central registration system which is maintained by the Secretary of State’s office.  21-A M.R.S.A. § 172.  Each voter’s registration information is kept in this file except for those voters who enroll in the Address Confidentiality Program in which case the residence information for that voter must be kept under seal is not subject to public inspection.  Id.; 21-A M.R.S.A. § 1(21); see also 21-A M.R.S.A. 122-A (address confidentiality program).

Ballots must be counted publicly so that those present may observe the proceedings.  21-A M.R.S.A. § 695(1).  In addition, as soon as the ballots are counted, the results must be made public at the voting place.  21-A M.R.S.A. § 695(3).  The ballots themselves are not public records and may be inspected only in accordance with Maine election law.  21-A M.R.S.A § 22.

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J. Emergency Medical Services records

Emergency medical services records generally are confidential.  See 1 M.R.S.A. § 402(3)(H); 32 M.R.S.A § 91-B.

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K. Gun permits

All applications for a permit to carry concealed firearms and documents made a part of the application, refusals and any information of record collected by the issuing agency during the process of ascertaining whether an applicant is of good moral character and meets the additional requirements of state law are confidential and may not be made available for public inspection or copying.  The applicant may waive this confidentiality by written notice to the issuing authority. All proceedings relating to the issuance, refusal or revocation of a permit to carry concealed firearms are not public proceedings, unless otherwise requested by the applicant.  25 M.R.S.A. § 2006(1).

Only certain limited gun permit information is public:  the municipality of residence, the date the permit was issued, and the date the permit expires. 25 M.R.S.A. § 2006(2).

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L. Homeland security and anti-terrorism measures

The Act contains two categories of "homeland security" related records exempt from public disclosure:

(1) Security plans, security procedures or risk assessments prepared specifically for the purpose of preventing or preparing for acts of terrorism, but only to the extent that release of information contained in the record could reasonably be expected to jeopardize the physical safety of government personnel or the public; and

(2) Records or information describing the architecture, design, access authentication, encryption or security of information technology infrastructure and systems.

1 M.R.S.A. § 402(3)(L), (M). A separate exemption provides overlapping confidentiality for the Secretary of State's information technology system plans and security information 29-A M.R.S.A. § 257.

Although not enacted as a homeland security measure, Maine law provides for confidentiality for law enforcement's "intelligence and investigative" information. 16 M.R.S.A. §§ 801-809.  Reports or records that contain intelligence and investigative information "prepared by, prepared at the direction of or kept in the custody" that would "[i]nterfere with law enforcement proceedings" or disclose "investigative techniques and procedures or security plans and procedures not generally known by the general public" are exempt from disclosure. 16 M.R.S.A. § 804(7).

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M. Hospital reports

Maine enacted a comprehensive scheme regulating access to medical information of all kinds, applicable to hospitals, all medical care providers, insurers and public agencies. The only information about a patient that can be released by a hospital without written patient consent is confirmation of admission, a brief description of the patient's health status, such as "stable" or "critical," and room number. This information is only available in response to inquiries that identify the patient by name and only if the patient has not prohibited release of any information. 22 M.R.S.A. § 1711-C(6)(R)-(S). Any information in the possession of the Maine Health Data Organization (established as a uniform health care reporting information system) is available for public inspection except confidential commercial information as defined by rule making and information that may identify an individual patient or health care provider. 22 M.R.S.A. § 8707. Records of hospital licensing are not declared confidential (22 M.R.S.A. Ch. 405), and thus are public. (1 M.R.S.A. § § 402, 408). But information relating to patients, recipients of government assistance or persons making a complaint to the Department of Human Services may not be released to the public (22 M.R.S.A. § 1828). Additionally, applications for certificates of need, which contain extensive financial data concerning hospitals, are available for public inspection. 22 M.R.S.A. § 313.

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N. Personnel records

1. Salary

A public employee’s salary is a matter of public record.

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2. Disciplinary records

Disciplinary records are confidential unless disciplinary action is taken.  If disciplinary action is taken, then the final written decision imposing or upholding discipline is public.  If an arbitrator overturns or removes disciplinary action, the decision is public, except the employee’s name must be deleted from the final written decision.  5 M.R.S.A. § 7070.  With only slight variations, the same rules apply to county employees (30-A M.R.S.A. § 503), municipal employees (30-A M.R.S.A. 2702), school employees (20-A M.R.S.A. § 6101), and state employees (5 M.R.S.A. § 7070).

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3. Applications

Applications are confidential until the application is hired, at which point they become public records.  5 M.R.S.A. § 7070.  In general, the same rules apply to county employees (30-A M.R.S.A. § 503), municipal employees (30-A M.R.S.A. 2702), and school employees (20-A M.R.S.A. § 6101). However, certain personal contact information about public employees is confidential and should be redacted.  1 M.R.S.A. § 402(3)(O).

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4. Personally identifying information

A public employee’s personal contact information – home address, home telephone number, home facsimile number, home e-mail address and personal cellular telephone number and personal pager number – is confidential. 1 M.R.S.A. § 402(3)(O). This exemption does not apply to elected officials; their personal contact information remains public.

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5. Expense reports

Expense reports are a matter of public record.

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

1. Accident reports

Generally available.

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2. Police blotter

All records of entry, such as calls for service, formerly known as “police blotters,” that are maintained by criminal justice agencies and that are compiled and organized chronologically are public records. 16 M.R.S.A. § 708(2).

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3. 911 tapes

Redacted transcripts of 911 calls are available to the public. The transcript will not contain names, addresses or telephone numbers of persons placing the call or receiving assistance. The general location where the assistance was sent is public. 25 M.R.S.A. § 2929; see also MaineToday Media, Inc. v. State of Maine, 2013 ME 100, 82 A.3d 104 (Me. 2013).  Except on a showing of good cause, audio tapes of 911 calls are confidential.

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4. Investigatory records

Access to investigatory records is governed by the Intelligence and Investigative Record Information Act, 16 M.R.S.A. §§ 801-809.  With certain exceptions a record that is or contains intelligence and investigative record information may not be disseminated by a Maine criminal justice agency (a defined term) to any person or public or private entity if there is a reasonable possibility that public release or inspection of the record would cause certain harm identified by statute.  See 16 M.R.S.A § 804(1)-(12).  The list follows:

  1. Interfere with law enforcement proceedings;
  2. Result in dissemination of prejudicial information concerning an accused person or concerning the prosecution's evidence that will interfere with the ability of a court to impanel an impartial jury;
  3. Constitute an unwarranted invasion of personal privacy;
  4. Disclose the identity of a confidential source;
  5. Disclose confidential information furnished only by the confidential source;
  6. Disclose trade secrets or other confidential commercial or financial information designated as such by the owner or source of the information or by the Department of the Attorney General;
  7. Disclose investigative techniques and procedures or security plans and procedures not generally known by the general public;
  8. Endanger the life or physical safety of any individual, including law enforcement personnel;
  9. Disclose information designated confidential by some other statute;
  10. Interfere with civil enforcement proceedings conducted by the Department of the Attorney General or by a district attorney’s office;
  11. Disclose conduct or statements made or documents submitted by any person in the course of any mediation or arbitration conducted under the auspices of the Department of the Attorney General;
  12. Identify the source of a complaint made to the Department of the Attorney General involving violations of consumer or antitrust laws.
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5. Arrest records

Available, unless more than one year has passed between the date the person was arrested and no active prosecution of a criminal charge stemming from the summons or arrest is pending, 16 M.R.S.A. § 703(2).  Information about persons detained following an arrest is also public, 16 M.R.S.A. § 706.

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6. Compilations of criminal histories

Records containing conviction data are open to the public. 16 M.R.S.A. § 703(2), (3).   Non-conviction data is generally confidential.  Id.

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7. Victims

The identity of a victim generally receives no special treatment, although victim information in intelligence and investigative records may be withheld on privacy grounds under 16 M.R.S.A. § 804.  The identity of minor victims of sexual offenses is confidential and prosecutors must refrain from unnecessary pre-trial publicity that might reveal the minor's identity. 30-A M.R.S.A. § 288. Additionally, if the victim requested assistance by calling 911, the identity of the victim cannot be obtained by accessing the 911 tape or transcript. 25 M.R.S.A. § 2929.

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8. Confessions

The availability of a confession is controlled by the availability of investigatory records of the offense involved. 16 M.R.S.A. § 804.

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9. Confidential informants

Information on the identity of a confidential source is generally confidential as an intelligence and investigative record.  16 M.R.S.A. § 804(4).  In addition, Maine recognizes and informant identify privilege pursuant to M.R.Evid. 509(a).  “[A]n `informant' is a person who has furnished information relating to or assisting in an investigation of a possible violation of law to . . . [a] law enforcement officer conducting an investigation. . . .” Id.; see also Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶ 19, 174 A.3d 314, 319 (Me. 2017).

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10. Police techniques

In general “investigative techniques and procedures or security plans and procedures not generally known by the general public” are confidential. 16 M.R.S.A. § 804(7).

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11. Mugshots

Mug shots are generally made available. 16 M.R.S.A. § 706 (record of persons detained following arrest); 16 M.R.S.A. § 708(1) (wanted posters, announcements, and lists).

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12. Sex offender records

Sex offender records are generally available and can be accessed on the State’s Sex Offender Registry Website (http://sor.informe.org). 34-A M.R.S.A. § 11221(9).

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13. Emergency medical services records

Medical records and reports of municipal ambulance, rescue, and other emergency units are not available.  1 M.R.S.A. § 402(3)(H).  However, these records are available upon request to law enforcement officers investigating criminal conduct.  Id.

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

Generally available, 1 M.R.S.A. § 402(3-A).  “Public records” is defined to specifically include the following:

  1. Records relating to prisoner furloughs to the extent they pertain to a prisoner's identity, conviction data, address of furlough and dates of furlough;
  2. Records relating to out-of-state adult probationer or parolee supervision to the extent they pertain to a probationer's or parolee's identity, conviction data, address of residence and dates of supervision; and
  3. Records to the extent they pertain to a prisoner's, adult probationer's or parolee's identity, conviction data and current address or location, unless the Commissioner of Corrections determines that it would be detrimental to the welfare of a client to disclose the information.
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Q. Professional licensing records

Professional licensing records are generally available to the public at the Department of Professional and Financial Regulation’s website,  https://www.pfr.maine.gov/almsonline/almsquery/welcome.aspx.

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R. Public utility records

Available to the extent duplicated in the records of adjudicatory proceedings of the Public Utilities Commission. Information that identifies individual utility customers is confidential. 35-A M.R.S.A. § 704(5). Utility personnel records are confidential. 35-A M.R.S.A. § 114. Utilities may also obtain protective orders for proprietary information such as future marketing plans. 35-A M.R.S.A. § 1311.

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S. Real estate appraisals, negotiations

1. Appraisals

An appraisal is generally available, except when prepared for use in connection with an executive session to discuss or consider “the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development” and “only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.”  1 M.R.S.A. 405(6)(C).

The Department of Transportation and the Maine Turnpike Authority are authorized to keep confidential records and correspondence relating to negotiations for and appraisals of property until 9 months after the completion of a project, except that records of claims that have been appealed to the Superior Court are public records following the award of the court.  23 M.R.S.A. §63; Pinkham v. Dept. of Transp., 2016 ME 74, 139 A.3d 904 (“Section 63's provision of confidentiality means that — during the limited periods of time for which section 63 provides — the MDOT is not required to disclose the information at issue in response to a FOAA request.”).

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2. Negotiations

Records related to negotiations are available except when prepared for use in connection with an executive session to discuss or consider “the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development” and “only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.”  1 M.R.S.A. 405(6)(C).

The Department of Transportation and the Maine Turnpike Authority are authorized to keep confidential records and correspondence relating to negotiations for and appraisals of property until 9 months after the completion of a project, except that records of claims that have been appealed to the Superior Court are public records following the award of the court.  23 M.R.S.A. § 63.

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3. Transactions

Transactions are a matter of public record except to the extent documents are prepared for use in connection with an executive session to discuss or consider “the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development” and “only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.”  1 M.R.S.A. 405(6)(C).

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4. Deeds, liens, foreclosures, title history

Registry of deeds records are generally subject to particular statutes governing access and fees.  See MacImage of Me., LLC v. Androscoggin Cty, 2012 ME 44, 40 A.3d 975.  Any record filed with a registry of deeds is available for public inspection and copying.  33 M.R.S.A. §§ 651, 751.  The fees for copying these records are not limited by the FOAA and are, rather, set by statutes that apply exclusively to the registry of deeds.  Id.  Individuals may request that personal information (e.g., social security numbers) be removed from registry records.  Id. § 651-B.

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5. Zoning records

Zoning records are public.

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T. School and university records

Access to education records and personally identifiable information about students in public and private schools is governed by federal law, including the United States Family Educational Rights and Privacy Act of 1974, and the federal Individuals with Disabilities Education Act, pursuant to 20-A M.R.S.A. § 6001(1).  A public school may not publish on the internet personal information about its students without prior written approval.  Id. § 6001(2).

Records of the University of Maine, the Maine Maritime Academy and the Maine Technical College System are available to the same extent as other public records except for records, working papers, interoffice and intraoffice memoranda used by or prepared for faculty and administrative committees of these institutions. All financial records of the institution are available except records pertaining to financial aid granted to individual students. 20-A M.R.S.A. §§ 11418, 11444. Criminal history record information obtained by school departments pertaining to teachers, school employees and applicants for employment is confidential. 20-A M.R.S.A. § 6103(3).

Maine public university FOAA contacts can be accessed at: http://www.maine.edu/about-the-system/system-office/university-counsel/freedom-of-access-requests/.

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1. Athletic records

University athletic records are generally public. The availability of secondary and elementary school records is controlled by federal law, which generally provides for confidentiality of such records. 20-A M.R.S.A. § 6001.
Records identifying minors who participate in municipal recreation programs are excluded from the definition of public records if the municipality enacts an ordinance specifying the circumstances in which the records will be withheld from disclosure. 1 M.R.S.A. § 402(3)(K) .

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2. Trustee records

Meetings of the Board of Trustees of the University of Maine System and any of its committees and subcommittees, the Board of Trustees of the Maine Maritime Academy and any of its committees and subcommittees, and the Board of Trustees of the Maine Community College System and any of its committees and subcommittees are generally public and records of their meetings are too.  See 1 M.R.S.A. § 402(2)(D).

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3. Student records

Confidential, generally.  Access to education records and personally identifiable information about students in public and private schools is governed by federal law, including the United States Family Educational Rights and Privacy Act of 1974, and the federal Individuals with Disabilities Education Act, pursuant to 20-A M.R.S.A. § 6001(1).  A public school may not publish on the internet personal information about its students without prior written approval.  Id. § 6001(2).

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

All other records “received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business” are a matter of public record unless within a specific statutory exemption. 1 M.R.S.A. § 402(3). The default rule in Maine is that all records maintained by public officers and agencies are available to the public unless specially made exempt by statute.

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U. State guard records

The records of the Department of Defense, Veterans and Emergency Management are generally public.  Records of the Maine Army National Guard may also be public under the federal Freedom of Information Act.  See http://www.me.ngb.army.mil/policy/foia.aspx.  Likewise, records of the Maine Air National Guard may also be public under the federal Freedom of Information Act.  See http://www.101arw.ang.af.mil/resources/.

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V. Tax records

Confidential, generally.  See 36 M.R.S. § 191 and Preti Flaherty Beliveau & Pachios, LLP v. State Tax Assessor, 2014 ME 6, 86 A.3d 30.

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W. Vital Statistics

1. Birth certificates

Custodians of certificates and records of birth, marriage and death may permit inspection of records, or issue certified copies of certificates or records, or any parts thereof, when satisfied that the applicant therefor has a direct and legitimate interest in the matter recorded, the decision of the state registrar or the clerk of a municipality being subject to review by the Superior Court, pursuant to 22 M.R.S.A. § 2706.

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2. Marriage and divorce

Custodians of certificates and records of birth, marriage and death may permit inspection of records, or issue certified copies of certificates or records, or any parts thereof, when satisfied that the applicant therefor has a direct and legitimate interest in the matter recorded, the decision of the state registrar or the clerk of a municipality being subject to review by the Superior Court, pursuant to 22 M.R.S.A. § 2706.

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3. Death certificates

Custodians of certificates and records of birth, marriage and death may permit inspection of records, or issue certified copies of certificates or records, or any parts thereof, when satisfied that the applicant therefor has a direct and legitimate interest in the matter recorded, the decision of the state registrar or the clerk of a municipality being subject to review by the Superior Court, pursuant to 22 M.R.S.A. § 2706.

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4. Infectious disease and health epidemics

Maine Department of Health and Human Service records that contain personally identifying medical information that are created or obtained in connection with the department's public health activities or programs are confidential.  These records include, but are not limited to, information on genetic, communicable, occupational or environmental disease entities, and information gathered from public health nurse activities, or any program for which the department collects personally identifying medical information.  22 M.R.S.A. § 42(5).  However, medical and epidemiologic information in which an individual cannot be identified is public.  Id.  The prevalence of infectious disease and vaccination rates have been made public by the Department.

The names of individuals having or suspected of having a notifiable disease or condition are confidential.  22 M.R.S.A. § 824.  Information concerning a notifiable disease or condition or suspected epidemic that is provided by a doctor to the Bureau of Health must also be kept confidential.  22 M.R.S.A. § 815.

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IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

Each agency, county, municipality, school administrative unit and regional or other political subdivision must designate an existing employee as its public access officer. 1 M.R.S. § 413.  However, a request may be made to any public officer or official, preferably the person with custody or control over the records in question.  Id. § 413(2).  State Freedom of Access Act contacts can be found here: http://www.maine.gov/foaa/contactlist/.

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2. Does the law cover oral requests?

The law covers oral and written requests. It is a best practice to make a written request, unless the request is simple and a response is expected quickly and without hassle.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

The Act sets the following time limits for agency response:

  • Acknowledge receipt of a request: 5 working days after receipt of the request;
  • Provide good faith, nonbinding estimate of time to comply with request and a cost estimate: within “a reasonable time of receiving the request”;
  • Denial of request: 5 working days of the receipt of the request
  • Inspection and copying in response to a request: within “a reasonable time of making the request”;

A reason for not including a hard deadline for responding to requests is that some requests are more complex and difficult to satisfy than others, making a one-size-fits-all deadline impractical.  However, the Law Court has held that the Act “mandates a prompt response.”  Cook v. Lisbon Sch. Comm., 682 A.2d 672, 679 (Me. 1996).  The Act requires that public officers and agencies act diligently to fulfill requests as soon as reasonably possible.

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2. Informal telephone inquiry as to status

The Act does not address informal telephone inquiries. In general, public agencies typically will respond to informal telephone inquiries about the status of a request.  A best practice is to make a record of such inquiries for use if needed later.  Informal inquiries may be made by e-mail.

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3. Is delay recognized as a denial for appeal purposes?

Yes. Delay in responding to a request is recognized as a denial for appeal purposes of when the delay extends beyond the five-working-day deadline. Cook v. Lisbon School District, 544 A.2d 335 (Me. 1996). An appeal must be brought within the deadline set for appeal after denial, which is 30 days. See 1 M.R.S.A. § 409(1); Guy Gannett Publishing Co. v. Maine Department of Public Safety, 555 A.2d 474 (Me. 1989).

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4. Any other recourse to encourage a response

The Act does not provide a means of recourse aside from an appeal in Superior Court.  However, persons frustrated with lack of response may contact others within an agency, elected representatives, the ombudsman appointed by the Attorney General to file a complaint (see 5 M.R.S.A. § 200-I), or the news media.  It is not unheard of for agencies and officials to revisit initial denials after consulting with legal counsel or the Office of the Attorney General.

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C. Administrative appeal

The Act does not provide for administrative appeal.  A complaint may be made to the FOAA ombudsman, but there is no formal complaint process and the ombudsman does not have the authority to issue binding rulings.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

The Act does not provide for administrative appeal.

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3. Fee issues

The Act does not provide for administrative appeal.

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4. Contents of appeal

5. Waiting for a response

The Act does not provide for administrative appeal.

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6. Subsequent remedies

The Act does not provide for administrative appeal.

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any person "aggrieved by a refusal or denial to inspect or copy a record” or failure of an agency or official to comply with the Act may appeal the refusal, denial or failure to comply to Superior Court.  1 M.R.S.A. § 409(1).

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2. Priority

An appeal under the Act is entitled to statutory priority.  “Appeals may be advanced on the docket and receive priority over other cases when the court determines that the interests of justice so require.”  1 M.R.S.A § 409(1).  In practice, FOAA cases usually are given expedited treatment, but a motion should be filed requesting same and the clerk’s office should be notified of the request for expedited treatment.

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3. Pro se

Any individual may proceed pro se.  Most entities (e.g., corporations) must be represented by counsel, but for purposes of FOAA this is easily addressed by having an individual make a request.

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4. Issues the court will address

a. Denial

The court is required to decide the issues presented by the appeal de novo, i.e., independent from and without deference to the governmental body’s findings of fact or conclusions of law. 1 M.R.S.A. § 409; see also Pinkham v. Dept. of Transp, 2016 ME 74, ¶ 7, 139 A.3d 904.  If the court determines that the denial was not for just and proper cause, it shall enter an order for disclosure. 1 M.R.S.A. § 409.

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b. Fees for records

The court should address excessive fees, but so far a fee case has not been decided by the Law Court.  The issue has come up in the Superior Court.  See LOCATEPLUS.COM v. State of Maine, 2002 Me. Super. LEXIS 61 at *11 (Me. Super. Ct. Apr. 30, 2002) (addressing the cost to obtain copies of a Bureau of Motor Vehicles database containing motor vehicle registration information of 1,249,570 records, motor vehicle title information containing 2,082,180 records, and driver’s license information containing 951,529 records).

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c. Delays

An delay past the 5 working day period for response is considered a denial. Guy Gannett Publishing Co. v. Maine Dept. of Public Safety, 555 A.2d 474 (Me. 1989).  The Courts have not addressed what may constitute a “reasonable time” for providing access to a record. 1 M.R.S.A. § 408(1).

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d. Patterns for future access (declaratory judgment)

A declaratory judgment may be sought, but in practice a court's decision with respect to one record will be treated as if it were a declaratory judgment pertaining to all similar records.

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5. Pleading format

The pleading is in the form of a statutory appeal – a petition for review under M. R. Civ. P. 80B (local government) or 80C (state government) pursuant to 1 M.R.S.A. § 409(1). The appeal is from the governmental agency's administrative action denying access to a record. The appeal should include a concise statement of the grounds on which the plaintiff contends that relief should be awarded, and the specific relief sought.  A pleading typically describes the records sought (and attaches the request and the response), applicable law requiring disclosure, and the agency’s response.  “[T]he court has discretion to determine the process necessary for the resolution of disputed facts, giving due consideration to the efficacy, costs, and time required for each method of presentation of evidence.”  Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶ 10, 174 A.3d 314, 317 (Me. 2017).

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6. Time limit for filing suit

Within 30 working days of denial. 1 M.R.S.A. § 409(1). The appeal period is strictly construed, but may be re-started by making a subsequent request for the same records. Guy Gannett Publishing Co. v. Maine Department of Public Safety, 555 A.2d 474, 476 (Me. 1989) (“A party seeking disclosure is free to request the information more than once.”).  An appeal from an agency failure to respond may also be brought within six months after the expiration of the time in which action reasonably should have occurred.  See M.R.Civ.P. 80B(b); 5 M.R.S.A. § 11002.

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7. What court?

A FOAA appeal must be filed in the Superior Court. 1 M.R.S.A. § 409(1).

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

Reasonable attorney’s fees may be recovered by the substantially prevailing plaintiff if the court determines that the refusal or illegal action “was committed in bad faith.”  1 M.R.S.A. § 409(4).  Attorney’s fees and litigation costs may not be awarded to or against a federally recognized Indian tribe.  Id.

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b. Court and litigation costs

Court costs may be recovered as in any civil action. In addition, reasonable litigation expenses may be recovered by the substantially prevailing plaintiff if the court determines that the refusal or illegal action was committed in bad faith. 1 M.R.S.A. § 409(4).

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

The only appeal from Superior Court is directly to the Supreme Judicial Court of Maine.

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2. Time limits for filing appeals

An appeal must be initiated by filing a notice of appeal within 21 days following the entry of judgment. M.R.App.P. 2(b)(3).

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3. Contact of interested amici

The Maine Supreme Judicial Court will often allow amici to file briefs. See M.R.App. 9(e).  It may allow amici to present oral argument, but may not grant a request for additional time at argument.  The Maine Freedom of Information Coalition has appeared as amici in public records cases in Maine.

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G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

Any person “must be permitted to attend  a public proceeding” in Maine. 1 M.R.S.A. § 403(1).

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B. What governments are subject to the law?

The Act defines "public proceedings" as "the transaction of any functions affecting any or all citizens of the state" by any of the bodies identified by statute. 1 M.R.S.A. § 402(2).

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1. State

The State of Maine is subject to the Act.  The bodies subject to the Act include the any board or commission of any state agency or authority.  1 M.R.S.A. § 402(2)(B).  The bodies subject to the Act also include the Maine Legislature and its committees and subcommittees.   Id. § 402(2)(A).  Bodies created by the State that have only advisory functions are also subject to the Act, unless specifically exempted by the law or by the executive order creating the body.  1 M.R.S.A. § 402(2)(F).

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2. County

Any board, commission, agency or authority of any county is subject to the Act. 1 M.R.S.A. § 402(2)(C).

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3. Local or municipal

Any board, commission, agency or authority of any municipality or other government entity (including school districts) is subject to the Act.  1 M.R.S.A. § 402(2)(C). In Lewiston Daily Sun v. City of Auburn, 544 A.2d 335 (Me. 1988), a special committee appointed by the mayor solely to investigate the alleged wrongdoing of a local city committee and to recommend solutions to any problems was held to be conducting public proceedings when it met. The court explained that the municipality could not avoid the open meetings requirements of the Freedom of Access Act by delegating to an advisory body an investigation that otherwise would have been undertaken by the city council.

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C. What bodies are covered by the law?

1. Executive branch agencies

a. What officials are covered?

The coverage of the Act is not generally determined by the identify of officials, but rather by whether officials are at a public proceeding covered by the Act.

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b. Are certain executive functions covered?

The Act apples to the “transactions of any functions affecting any or all citizens of the State” by the bodies designated by the Act.  Any board or commission of any state agency or authority is subject to the Act.  1 M.R.S.A. §402(2)(B).

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c. Are only certain agencies subject to the act?

All boards or commissions of any state agency or authority are covered by the Act. 1 M.R.S.A. § 402.

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2. Legislative bodies

The Maine Legislature and its committees and subcommittees are covered by the Act. 1 M.R.S.A. § 402(2)(A).

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3. Courts

In general, judicial proceedings are not to be subject to the Act, even though certain statutes do provide for confidentiality with respect to certain Court proceedings (e.g., certain juvenile criminal proceedings).  See Asselin v. Superior Court, 2014 Me.Unpub. LEXIS 3 (Jan. 22, 2015).

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4. Nongovernmental bodies receiving public funds or benefits

The Act applies to the board of directors of a non-profit, non-stock private corporation that provides statewide non-commercial public broadcasting services and any of its committees and subcommittees. 1 M.R.S.A. § 402(2)(E).  This is intended to subject the Maine Public Broadcasting board of directors to the act. Membership meetings of organizations whose members are governments or government agencies, such as the Maine Municipal Association, also must be held in public.  1 M.R.S.A. §402(2)(D).

Certain nongovernmental bodies receiving public funds or benefits may be subject to the Act.  Whether an entity or individual, individually or collectively, qualifies as “an agency or public official” for purposes of the Freedom of Access Act, turns on “the function that the entity performs.”  See Turcotte v. Humane Society of Waterville, 2014 ME 123,¶¶ 6-7, 103 A.3d 1023; Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857.   The four factors considered in making that determination are:

(1) Whether the entity is performing a governmental function;

(2) Whether the funding of the entity is governmental;

(3) The extent of governmental involvement or control; and

(4) Whether the entity was created by private or legislative action.

Moore, 2008 ME 100, ¶ 11.  “[A]lthough these factors should be considered and weighed, an entity need not strictly conform to each factor to become a public agency or public official.”  Id.

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5. Nongovernmental groups whose members include governmental officials

The Act does not apply to nongovernmental groups just because a member is a governmental official, but membership (i.e., governmental involvement or control) is a factor that may be considered in conjunction with other factors to determine whether a body is subject to the Act.  See Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857.

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6. Multi-state or regional bodies

There is no precedent on multi-state bodies, but regional bodies composed of public officials are covered by the Act.  See 1 M.R.S.A. § 402(2)(C) (public proceedings of “any regional or other political or administrative subdivision” is subject to the Act); cf Hughes Bros., Inc. v. Town of Eddington, 2016 ME 13, ¶ 26, 130 A.3d 978 (recognizing that municipal boards may meet jointly and may jointly go into executive session “to  jointly consult with counsel about how to comply with the law in carrying out their respective duties”).

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7. Advisory boards and commissions, quasi-governmental entities

Quasi-governmental entities whose functions are sufficiently governmental to qualify them as political subdivisions of the state, such as certain hospital administrative districts and water and sewer districts are subject to the Act.  Advisory bodies created by Executive Order, law or resolve are covered unless the instrument that created the body excludes it from the Act. 1 M.R.S.A. § 402(2)(F).  Other advisory bodies are not “automatically excluded” from being a state agency or authority” subject to the Act because the statute provides that a “public proceeding” includes the transaction of any functions” of any of the entities covered by the statute, and the provision of advice may be considered a “function.”  Me. Op. Att'y Gen., 1980 WL 119341 (June 5, 1980).

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8. Other bodies to which governmental or public functions are delegated

Whether a governmental function has been formally delegated to a body and whether that body is performing a governmental function is a factor that may be considered in determining whether the entity is subject to the Act.  See Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857.

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9. Appointed as well as elected bodies

The Act applies to appointed as well as elected bodies.

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D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

The term “meeting” is not defined in the Act.  1 M.R.S.A. § 406.  If a body is subject to open meetings requirements, it generally must meet in public, regardless of the number of members actually present at a particular meeting. 1 M.R.S.A. § 406.  The Act applies to a gathering at which a quorum is present and the business of the body is discussed, even if not all members of the body have been notified or are present and the circumstances are informal.  A gathering of less than a quorum may also be deemed  meeting if “the transactions of any functions affecting any or all citizens of the State” are conducted.  1 M.R.S.A. § 402(2).  Some bodies have taken the position that a “meeting” cannot occur without a quorum, but the term “quorum” is not mentioned in the Act.  Other bodies have taken the position that a gathering of three or more members of a body or agency is a meeting because public notice is required of “a meeting of a body or agency consisting of 3 or more persons.”  1 M.R.S.A. § 406.  There are no exceptions for information gathering, fact finding, deliberations, advisory functions, workshops, or the like, and such activities do constitute the transaction of public business.

A "Legislative Subcommittee," is defined as “3 or more Legislators from a legislative committee appointed for the purpose of conducting legislative business on behalf of the committee.”   1 M.R.S.A. § 402(1-A).

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b. What effect does absence of a quorum have?

The word “quorum” does not appear in the Act.  Some bodies have taken the position that a public body may meet in private so long as a quorum is not present, but this position is contrary to the intent and spirit of the Act.  The term “quorum” is not mentioned in the Act.

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2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

Information gathering and fact-finding sessions must be undertaken in public. See Me. Op. Att'y Gen., 1980 WL 119341 (June 5, 1980).

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b. Deliberation toward decisions

Deliberations must occur in public. See 1 M.R.S.A. § 405(6) (permitting “[d]eliberations on only” certain delineated matters in executive session).

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3. Electronic meetings

In general, electronic meetings violate the Act unless specifically authorized by statute, as is true for certain bodies.  Remote participation (by conference call, video conference, or otherwise) is only authorized by statute for particular agencies.  The Right to Know Advisory Committee has considered legislation to allow members of public bodies to participate remotely in public proceedings, subject to various limitations.  The issue divided the Committee, and so far no legislation has been enacted.

The Office of the Attorney General has issued opinions that meetings conducted by telephone violate the Act.  Op. Atty. Gen, May 17, 1977; Op. Atty Gen., April 6, 1977; Op. Atty Gen, March 25, 1977.  “The practice of conducting ‘public proceedings’ over the telephone is inimical to the fundamental purpose embodied in the Freedom of Access Law . . . .”  Op. Atty. Gen, Sept. 6, 1984.  Even in emergencies, telephonic meetings violate the FOAA:

In [emergency] situations the Freedom of Access Law permits a relaxation of the notice requirements which must precede all public proceedings.  However, the requirement that the meeting be public is not eliminated by its emergency nature.  Thus, the practice of conducting a “public proceeding” by telephone cannot be justified under the Freedom of Access Law, on the ground that an emergency exist[s].

Id. 

However, a Superior Court Justice refused to find that a municipal meeting conducted by telephone conference violated the Act where all participants were connected, and the plaintiff failed to demonstrate that he was prejudiced in any way by the conduct of the meeting without a physical location open to the public.  Toomey v. Inhabitants of Frye Island, 2007 Me. Super. LEXIS 118, 2-3 (Me. Super. Ct. June 19, 2007).  Had the plaintiff not attended, the outcome might have been different.  Toomey also involved an unusual set of facts since it involved “a unique community that operates on an island in Sebago Lake as a seasonal municipality and closes in the Fall of each year. There are no year-round residents on the island.”  Of course, nothing in the Act prevented the Town from holding the meeting at a physical location on the mainland.

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a. Conference calls and video/Internet conferencing

As with electronic meetings, conference calls and video/Internet conferencing violates the Act.

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b. E-mail

According to the Office of the Attorney General e-mail used as a substitute for public deliberation among a quorum of members of a body violates the Act:

E-mail or other communication among a quorum of the members of a body that is used as a substitute for deliberations or decisions which should properly take place at a public meeting may likely be considered a “meeting” in violation of the statutory requirements for open meetings and public notice. “Public proceedings” are defined in part as “the transactions of any functions affecting any or all citizens of the State…” 1 M.R.S. § 402 The underlying purpose of the FOAA is that public proceedings be conducted openly and that deliberations and actions be taken openly; clandestine meetings should not be used to defeat the purpose of the law. 1 M.R.S. § 401 Public proceedings must be conducted in public and any person must be permitted to attend and observe the body’s proceeding although executive sessions are permitted under certain circumstances. 1 M.R.S. § 403 In addition, public notice must be given for a public proceeding if the proceeding is a meeting of a body or agency consisting of 3 or more persons. 1 M.R.S. § 406.

The Maine Office of the Attorney General concludes, “Members of a body should refrain from the use of e-mail as a substitute for deliberating or deciding substantive matters properly confined to public proceedings.”  See http://www.maine.gov/foaa/faq/.

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c. Text messages

There are no Maine decisions on whether text messages constitute a meeting, but the purpose of the public meetings law is broad and prevents the use of electronic means to hold meetings.  “It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter.”  1 M.R.S.A. § 401.  The same logic applicable to e-mail applies to text messages.

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d. Instant messaging

There are no Maine decisions on whether instant messaging constitutes a meeting, but the purpose of the public meetings law is broad and would prevent the use of electronic means to hold meetings. “It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter.” 1 M.R.S.A. § 401. The same logic applicable to e-mail applies to instant messaging.

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e. Social media and online discussion boards

There are no Maine decisions on whether the use of social media and online discussion boards constitute a meeting, but the purpose of the public meetings law is broad and would prevent the use of electronic means to hold meetings.  “It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter.”  1 M.R.S.A. § 401. The same logic applicable to e-mail applies to social media and online discussion boards.

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

All meetings are subject to the law. The term “meeting” is not defined by the Act.  See 1 M.R.S.A. § 406.  There is no requirement that a quorum be present so long as a body consists of three or more persons.  Id.

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b. Notice

Public notice must be given for all public proceedings, if these proceedings are a meeting of a body or agency consisting of 3 or more persons. This notice must be given in ample time to allow public attendance and must be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned. In the event of an emergency meeting, local representatives of the media must be notified of the meeting, whenever practical, the notification to include time and location, by the same or faster means used to notify the members of the agency conducting the public proceeding.  1 M.R.S.A. § 406.  Although notice must be given in “ample time to allow public attendance,” actual notice of as little as one day may be enough to satisfy the Act if the person complaining of lack of adequate notice has not been prejudiced.  Crispin v. Town of Scarborough, 1999 ME 112, ¶¶ 24-27; 736 A.2d 241, 249.

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c. Minutes

In general bodies subject to the act must record minutes of each public meeting and make the minutes available to the public on request.  A record of each public proceeding for which notice is required (i.e., meetings of bodies with three or more persons) must be made within a reasonable period of time after the proceeding.  At minimum, the record must include (A) the date, time and place of the public proceeding; (B) the members of the body holding the public proceeding recorded as either present or absent; and (C) all motions and votes taken, by individual member, if there is a roll call.  1 M.R.S.A. § 403(2).

Some bodies are subject to particular record-keeping requirements, such as zoning and planning boards.  In particular, every agency must make a written record of every decision involving approval or denial of any application, license, certificate, or other type of permit, as well as every decision involving the dismissal or refusal to renew the contract of any public official, employee or appointee.  1 M.R.S.A. § 407.

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2. Special or emergency meetings

a. Definition

The Act recognizes that bodies may hold emergency meetings, but the term is not defined.  1 M.R.S.A. § 406.

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b. Notice requirements

In the event of an emergency meeting, local representatives of the media must be notified of the meeting.  Whenever practical, the notification to include time and location, by the same or faster means used to notify the members of the agency conducting the public proceeding.  1 M.R.S.A. §406.

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c. Minutes

The same requirements applicable at regular meetings apply to emergency meetings.  A body must create minutes of each meeting.  1 M.R.S.A. § 403(2).  The minutes must include (A) the date, time and place of the public proceeding; (B) the members of the body holding the public proceeding recorded as either present or absent; and (C) all motions and votes taken, by individual member, if there is a roll call.  1 M.R.S.A. § 403(2).

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3. Closed meetings or executive sessions

a. Definition

The Act uses the term “executive session” to describe any portion of any meeting closed to the public.  1 M.R.S.A. §405.

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b. Notice requirements

Public notice must be given for all public proceedings in ample time to allow public attendance.  Notice must be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned.  1 M.R.S.A. § 406.  No Maine decision specifically addresses whether the notice must refer to any executive session planned for a meeting, but providing notice of any anticipated executive session is good practice vis-à-vis members of the body itself and the public.  A notice that does not actually say what is going to take place at a meeting may be “notice” in name only.

An executive session may be called only by a public recorded vote of 3/5 of the members, present and voting, of a body or agency.  The motion must state the precise nature of the business of the session.  1 M.R.S.A. § 405(4).

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c. Minutes

The same requirements applicable at regular meetings apply to emergency meetings.  A body must create minutes of each meeting.  1 M.R.S.A. § 403(2).  The minutes must include (A) the date, time and place of the public proceeding; (B) the members of the body holding the public proceeding recorded as either present or absent; and (C) all motions and votes taken, by individual member, if there is a roll call.  1 M.R.S.A. § 403(2).  The minutes need not include the subject matter of deliberations in executive session.  To the extent that minutes are taken of deliberations in executive sessions, the minutes are confidential so long as the executive session was itself lawful.  Blethen Me. Newspapers, Inc. v. Portland School Cmte., 2008 ME 69, ¶ 18, 947 A.2d 479, 484 (“Because the executive session was lawful, documents prepared for use during the executive session and notes made during the executive session are not subject to public examination.”).  If minutes contain information derived from documents declared confidential by statute, the part of any minutes referring to confidential information is also confidential. See Guy Gannett Pub. Co. v. City of Portland, Docket No. CV-92-858 (Sept. 24, 1992).

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d. Requirement to meet in public before closing meeting

A public body must take a public recorded vote to go into executive session.  1 M.R.S.A. § 405(3).

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e. Requirement to state statutory authority for closing meetings before closure

A public body must take a public recorded vote to go into executive session.  1 M.R.S.A. § 405(3).

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f. Tape recording requirements

There is no requirement that executive sessions be tape recorded.

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F. Recording/broadcast of meetings

1. Sound recordings allowed

Any person attending a public proceeding has a right "to make written, taped, or filmed records of the proceedings, or to live broadcast the same, provided the writing, taping, filming or broadcasting does not interfere with the orderly conduct of proceedings." 1 M.R.S.A. § 404. Bodies and agencies are authorized to make reasonable rules and regulations governing these activities but may not prohibit them. Id.

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2. Photographic recordings allowed

Any person attending a public proceeding has a right to film the proceedings, or to make a live broadcast, provided that the filming or broadcasting does not interfere with the orderly conduct of proceedings. 1 M.R.S.A. § 404. Bodies and agencies are authorized to make reasonable rules and regulations governing these activities but may not prohibit them.

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G. Access to meeting materials, reports and agendas

The minutes of any public proceeding are open to public inspection, as are any materials, reports, and agendas unless prepared for use during a lawful executive session or made during a lawful executive session.  See Blethen Me. Newspapers, Inc. v. Portland Sch. Comm., 2008 ME 69, ¶ 18, 947 A.2d 479, 484; 1 M.R.S.A. § 403(2).

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H. Are there sanctions for noncompliance?

Any official action taken in an illegal executive session may be declared null and void. 1 M.R.S.A. § 409(2).

For every willful violation of this subchapter, the state government agency or local government entity whose officer or employee committed the violation shall be liable for a civil violation for which a forfeiture of not more than $500 may be adjudged.  1 M.R.S.A. § 410.  The fine may only be collected by the state, not private persons.

A substantially prevailing plaintiff may recover reasonable attorney’s fees and litigation expenses if the court determines that the refusal to provide access to public records or illegal action at a public meeting “was committed in bad faith.”  1 M.R.S.A. § 409(4).  Attorney’s fees and litigation costs may not be awarded to or against a federally recognized Indian tribe.  Id.

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A. Exemptions in the open meetings statute

1. Character of exemptions

The Act allows public bodies to vote to deliberate in executive session “on only” certain specific enumerated matters.  1 M.R.S.A. § 405(6).  The exceptions are for the most part narrow and specific.  Public bodies are not required to deliberate in executive session on enumerated topics; they “may” do so upon a proper motion and vote by 3/5 of the members present and voting.  1 M.R.S.A. § 405(3)-(6).

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2. Description of each exemption

Pursuant to 1 M.R.S.A. § 405(6), a public body may deliberate in executive sessions on the following matters and no others.

A. Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:

(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual’s reputation or the individual's right to privacy would be violated;

(2) Any person charged or investigated must be permitted to be present at an executive session if that person desires;

(3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and

(4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.

This paragraph does not apply to discussion of a budget or budget proposal;

B. Discussion or consideration by a school board of suspension or expulsion of a public school student or a student at a private school, the cost of whose education is paid from public funds, as long as:

(1) The student and legal counsel and, if the student be a minor, the student's parents or legal guardians are permitted to be present at an executive session if the student, parents or guardians so desire.

C. Discussion or consideration of the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency;

D. Discussion of labor contracts and proposals and meetings between a public agency and its negotiators. The parties must be named before the body or agency may go into executive session. Negotiations between the representatives of a public employer and public employees may be open to the public if both parties agree to conduct negotiations in open sessions;

E. Consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency, pending or contemplated litigation, settlement offers and matters where the duties of the public body's counsel to the attorney’s client pursuant to the code of professional responsibility clearly conflict with the Act or where premature general public knowledge would clearly place the state, municipality or other public agency or person at a substantial disadvantage. See, e.g., Greif v. Town of Bar Harbor, 2017 ME 163, ¶¶ 12-14, 167 A.3d 1272;

F. Discussions of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute;

G. Discussion or approval of the content of examinations administered by a body or agency for licensing, permitting or employment purposes; consultation between a body or agency and any entity that provides examination services to that body or agency regarding the content of an examination; and review of examinations with the person examined; and

H. Consultations between municipal officers and a code enforcement officer representing the municipality pursuant to Title 30-A, section 4452, subsection 1, paragraph C in the prosecution of an enforcement matter pending in District Court when the consultation relates to that pending enforcement matter.

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B. Any other statutory requirements for closed or open meetings

Some state agencies or governmental bodies have their own requirements for open or closed meetings. If the meetings are designated as closed, the statutory basis must still fall within one of the permitted topics for executive sessions listed in 1 M.R.S.A. § 405. Examples include: legislative investigating committee meetings may be closed if so requested by a witness, 3 M.R.S.A. § 427; Commission of Governmental Ethics and Election Practices meetings are open unless six of the seven members want the meeting closed, 1 M.R.S.A. § 1005; confirmation hearings and pre-hearings are open unless the committee determines that the meeting should be closed to avoid damage to the nominee's reputation, 3 M.R.S.A. § 154; proceedings related to issuance, refusal, suspension or revocation of concealed firearms permits are closed unless the applicant requests that it be open, 25 M.R.S.A. § 2006(1); meetings of the Maine Drug Enforcement Advisory Board are open unless there is a discussion of pending investigations, 25 M.R.S.A. § 2957.

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C. Court mandated opening, closing

The Legislature, not the Courts, controls whether a body may meet in executive session.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Generally open. 5 M.R.S.A. § § 9051-A, 9052, 9054.

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1. Deliberations closed, but not fact-finding

In general administrative bodies must deliberate in open session.  The quality and nature of deliberations varies (some bodies actively discuss the subject matter before it, while others discuss very little or merely present prepared statements).  The statute does not distinguish between deliberations and fact-finding.

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2. Only certain adjudications closed, i.e. under certain statutes

Except where authorized by a specific statute, all adjudicatory proceedings must be open to the public.  1 M.R.S.A. § 405.

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B. Budget sessions

Open to the public. 1 M.R.S.A. § 405.

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C. Business and industry relations

Proceedings involving business and industry relations are generally public.  However, if discussion involves the condition, acquisition or the use of real property or fixtures, disposition of public property, or economic development, deliberations may be in executive session “only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.”  1 M.R.S.A. § 405(6)(D).  Deliberations involving records protected as trade secrets or otherwise confidential under the Act may also be closed to the public.  1 M.R.S.A. § 405(6)(F). Similarly, discussions concerning an application for a tax increment finance district between a governmental entity and the applicant/developer may be closed to discuss financial information declared confidential by statute. 10 M.R.S.A. § 382, 36 M.R.S.A. § 6760.

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D. Federal programs

Deliberation on the subject of federal programs is generally public, unless the discussion involves information contained in records designated confidential by statute.  1 M.R.S.A. § 405(6)(F).

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E. Financial data of public bodies

Financial data of public bodies is generally a public record, with limited exceptions for such information as purchase or sale prices for public property.  See 1 M.R.S.A. § 405(6)(D).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Discussion of financial data, trade secrets, or proprietary data of private corporations and individuals (other than public employees) may be held in executive session to the extent that the discussion concerns information contained in non-public records.  1 M.R.S.A. § 405(6)(F).

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G. Gifts, trusts and honorary degrees

Open to the public.

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H. Grand jury testimony by public employees

In general, grand jury proceedings are secret.  M. R. Crim. P. 6(e). However, a witness before the grand jury may not be placed under any obligation of secrecy.  Id (Advisory Comm. Note – 1997).  Further, grand jury secrecy rules do not apply to material obtained or created independently of the grand jury as long as the disclosure of such material does not reveal what transpired before the grand jury.  Id.

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I. Licensing examinations

Closed to the public. 1 M.R.S.A § 405(G).

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J. Litigation, pending litigation or other attorney-client privileges

Public bodies are permitted to meet in executive session to consult with counsel concerning pending or contemplated litigation. 1 M.R.S.A. § 405(6)(E).

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K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

Closed to the public unless both sides agree otherwise. 1 M.R.S.A. § 405(6)(D).

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2. Only those between the public employees and the public body

Closed to the public unless both sides agree otherwise. 1 M.R.S.A. § 405(6)(D).

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L. Parole board meetings, or meetings involving parole board decisions

Public, unless the board is discussing its investigation of an application for a pardon, reprieve or commutation, or its recommendation to the governor on such application. 5 M.R.S.A. § 9052; 34-A M.R.S.A. § 5210(4)(C).

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M. Patients, discussions on individual patients

To the extent the discussion concerns information contained in an individual or mental health record, it can be held in executive session, since such records are invariably confidential. 1 M.R.S.A. § 405(6)(F).

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N. Personnel matters

Pursuant to 1 M.R.S.A. § 405(6)(A), an executive session may be held to discuss or consider:

the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:

(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual’s reputation or the individual's right to privacy would be violated;

(2) Any person charged or investigated must be permitted to be present at an executive session if that person desires;

(3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and

(4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.

This paragraph does not apply to discussion of a budget or budget proposal;

A discussion of employee salaries must take place in open session because that is a budget matter.

In addition, discussion of information contained in confidential personnel files may take place in executive session. 1 M.R.S.A. § 405(6)(F).

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1. Interviews for public employment

To the extent that an interview discussion “could reasonably be expected to cause damage to the individual’s reputation” or violate a right to privacy it may be held in executive session.  Otherwise, interviews with public bodies must be public. 1 M.R.S.A. § 405(6)(A).

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2. Disciplinary matters, performance or ethics of public employees

In general, disciplinary matters or performance evaluations may be closed to the public on the theory that public discussion “could reasonably be expected to cause damage to the individual’s reputation.”  1 M.R.S.A. § 405(6)(A).

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3. Dismissal, considering dismissal of public employees

In general, deliberation or consideration of dismissal of public employees may be closed to the public on the theory that public discussion “could reasonably be expected to cause damage to the individual’s reputation.”  1 M.R.S.A. § 405(6)(A).

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O. Real estate negotiations

Discussion of the acquisition or disposition of publicly owned property may be held in executive session only if such discussion would prejudice the bargaining position of the agency or body; the negotiation itself may not. 1 M.R.S.A. § 405(6)(C).

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P. Security, national and/or state, of buildings, personnel or other

Deliberation on security matters may be in closed session so long as the discussion involves information contained in non-public records.  1 M.R.S.A. § 405(6)(F).

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Q. Students, discussions on individual students

Discussion of individual students is generally confidential because such discussion almost invariably involves information in non-public records.  1 M.R.S.A. § 405(6)(F). The Act permits boards to meet in executive session to discuss or consider the suspension or expulsion of a public school student.   1 M.R.S.A. § 405(6)(B).

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IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Yes. Actions to enforce the Act “may be advanced on the docket and receive priority over other cases when the court determines that the interest of justice so require.”  1 M.R.S.A. § 409(2). A motion may be made for a temporary restraining order or a preliminary injunction to keep a public body from entering an executive session.  1 M.R.S.A. § 409(3); M.R.Civ.P. 65.

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2. When barred from attending

A person barred from attending a public meeting may seek emergency injunctive relief to open a closed meeting.  1 M.R.S.A. § 409(3); M.R.Civ.P. 65.  A declaratory judgment may also be sought to ensure that future meetings are open to the public.

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3. To set aside decision

A court may set aside any decision made in an illegal executive session. 1 M.R.S.A. § 409(2) (court may “enter order providing for the action to be null and void”).

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4. For ruling on future meetings

A declaratory judgment may also be sought to determine that future meetings are open to the public (or that a body is, for example, subject to the open meetings law).

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5. Other

A claim for violation of the open meetings act must be filed "within thirty days of discovering a possible violation."  Palmer v. Portland Sch. Comm., 652 A.2d 86, 89 (Me. 1995).

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B. How to start

1. Where to ask for ruling

a. Administrative forum

Any challenge to an illegal meeting must be brought in Superior Court.  Maine does not have an administrative forum with jurisdiction to hear disputes under the Act.

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b. State attorney general

The Maine Attorney General may be asked to issue an advisory ruling on an issue of statutory interpretation or on the applicability of the FOAA with respect to particular meetings or public bodies.  The FOAA ombudsman’s office is within the Office of the Attorney General.

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c. Court

An action must be brought in Superior Court, generally in the county where the meeting was held.

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2. Applicable time limits

A claim for violation of the open meetings act must be filed “within thirty days of discovering a possible violation.”  Palmer v. Portland Sch. Comm., 652 A.2d 86, 89 (Me. 1995); see also M.R.Civ.P. 80B, 80C.

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3. Contents of request for ruling

A complaint should be filed with the Court setting out a concise statement of the grounds for relief and the specific relief sought. Any meeting notice, minutes or decision can be attached.  The same information and documents should be provided to the Attorney General in connection with any informal request for a ruling.

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4. How long should you wait for a response

No responsive pleading is required, although governmental entities will often file an answer if the complaint is not styled as an appeal.  See M.R.Civ.P. 80B (“No responsive [pleading need be filed unless required by statute or order of the court . . . .”).  An entry of appearance within the time for serving an answer (20 days) is required.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

1. Who may sue?

Any aggrieved person may appeal the refusal or denial of a request to inspect a record or challenge a closed meeting.  1 M.R.S.A. § 409.

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2. Will the court give priority to the pleading?

Yes. Actions to enforce the Act “may be advanced on the docket and receive priority over other cases when the court determines that the interest of justice so require.”  1 M.R.S.A. § 409(2). A motion may be made for a temporary restraining order or a preliminary injunction to keep a public body from entering an executive session.  1 M.R.S.A. § 409(3); M.R.Civ.P. 65.

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3. Pro se possibility, advisability

Any individual may proceed pro se. Most entities (e.g., corporations) must be represented by counsel.  A challenge can be brought pro se and the courts are generally solicitous of a pro se claim.  However, governmental entities are represented by counsel and will have the upper hand against unrepresented claimants.

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4. What issues will the court address?

a. Open the meeting

The Court may order that a meeting be open to the public.

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b. Invalidate the decision

The Court may order that any action taken in an illegal closed meeting be declared “null and void.”  1 M.R.S.A. § 409(2).

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c. Order future meetings open

The Court order a body to conduct future meetings in public.

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5. Pleading format

An action may be filed as a statutory appear or a complaint.  See M.R.Civ. P. 80B (local government); M.R.Civ.P. 80C (state government); 1 M.R.S.A. § 409(2). Any minutes, agenda, or other documentation related to the meeting should be attached to the appeal.

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6. Time limit for filing suit

Any person may appeal "[u]pon learning of any such action." 1 M.R.S.A. § 409(2).  A claim for violation of the open meetings act must be filed “within thirty days of discovering a possible violation.”  Palmer v. Portland Sch. Comm., 652 A.2d 86, 89 (Me. 1995).

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7. What court?

Any action must be filed in Superior Court.  The action is usually filed in the county where the challenged executive session or meeting took place.

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8. Judicial remedies available

Any official action taken in executive session may be declared null and void. 1 M.R.S.A. § 409(2). Declaratory judgment and injunctive relief are also available.  1 M.R.S.A. § 409(3).

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9. Availability of court costs and attorney's fees

A party may recover court costs as in ordinary civil actions.  Attorneys’ fees and reasonable expenses (in addition to court costs) are available upon a showing that illegal action in executive session was taken in “bad faith.” 1 M.R.S.A. § 409.

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10. Fines

Fines may not be collected by private parties. If the District Attorney or Attorney General brings an action against the offending government entity, the government entity may be fined $500 for willful violations. 1 M.R.S.A. § 410.

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11. Other penalties

None.

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D. Appealing initial court decisions

1. Appeal routes

A Superior Court decision may be appealed directly to the Maine Supreme Judicial Court sitting as the Law Court.

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2. Time limits for filing appeals

An appeal must be initiated by filing a notice of appeal within 21 days following the entry of judgment. M.R.App.P. 2(b)(3).

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3. Contact of interested amici

The Maine Supreme Judicial Court will often allow amici to file briefs. M.R.App.P. 9(e).  The Maine Freedom of Information Coalition has appeared as amici in Freedom of Access Act appeals.

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V. Asserting a right to comment

The Act does not grant to the general public a right to comment at public meetings, but comment may be authorized by particular statutes or bylaws governing a specific public body. A person wishing to comment may request an opportunity to do so, and many public bodies do allow an opportunity for public comment as a matter of course. Anyone wishing to comment should contact the relevant public body for their protocols and expectations regarding public comment.  Public comment is often limited to a short period of time.  Any person may submit written comments, of course.

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A. Is there a right to participate in public meetings?

Generally, no. Statutes regarding specific governmental bodies may deal with this subject. For example, in state proceedings governed by the Administrative Procedure Act, a party may need to intervene to have the right to participate.

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B. Must a commenter give notice of intentions to comment?

Generally, no, but some bodies will ask for advance notice to schedule time for public comment or to set time limits on comment.

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C. Can a public body limit comment?

Many public bodies set time limits for public comment, but those limits are usually flexible (within reason).

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D. How can a participant assert rights to comment?

A person wishing to comment may request an opportunity to do so. Some public bodies will afford an opportunity to do so. Many bodies allow public comment as a routine agenda item, but not all.

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E. Are there sanctions for unapproved comment?

Not specifically.  In extreme circumstances, public bodies have contacted law enforcement to remove a disruptive individual.

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Appendix