Maine

Open Government Guide

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Author

Sigmund D. Schutz
Harper Weissburg, summer law clerk, Boston University School of Law, class of 2022
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

Last updated October 2021

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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 400-414 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 Reference Library in Augusta, Maine, has compiled the legislative history of the FOAA.

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Open Records

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I. Statute

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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?

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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) with 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:

Whether the entity is performing a governmental function;
Whether the funding of the entity is governmental;
The extent of governmental involvement or control; and
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?

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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)

Electronic data compilations are public records.

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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

Email is a public record. According to the Maine Attorney General, “Any record, regardless of the form in which it is maintained by an agency or official, can be a public record. As with any record, if the e-mail is ‘in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been 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’ and is not deemed confidential or excepted from the FOAA, it constitutes a ‘public record’.”

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7. Text messages and other electronic messages

Text messages and other electronic messages are public records.

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Social media posts are public records.

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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?

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D. Fee provisions

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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

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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

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1. Search obligations

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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

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II. Exemptions and other legal limitations

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

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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.

Effective June 16, 2020, the Office of Policy and Legal Analysis, in consultation with the Revisor’s Office and the Right to Know Advisory Committee, must identify nonstandard statutory language “related to the designation as confidential or not subject to public disclosure” and “recommend standardized language . . . to clearly delineate what information is confidential and the circumstances under which that information may be appropriately released.” P.L. 2019, ch. 667, §B-8. The Office of Policy and Legal Analysis must then develop recommended legislation to standardize the statutory language by September 1, 2021.

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2. Discussion of each exemption

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

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). The Maine Supreme Judicial Court discussed the property taxpayer information exemption in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812, which held the property information submitted by the wind energy developer to Maine Revenue Services could not be shared with the County unless the record (1) was designated as confidential when submitted and (2) contained proprietary information. There are many exemptions scattered throughout Maine statutes. See e.g., 36 M.R.S.A. § 706-A(1) (exempting confidential and proprietary property tax information as public record). 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: http://www.mainelegislature.org/legis/foa/ (last visited July 6, 2021). Effective June 16, 2020, the Office of Policy and Legal Analysis, in consultation with the Revisor’s Office and the Right to Know Advisory Committee, must identify nonstandard statutory language “related to the designation as confidential or not subject to public disclosure” and “recommend standardized language . . . to clearly delineate what information is confidential and the circumstances under which that information may be appropriately released.” P.L. 2019, ch. 667, §B-8. The Office of Policy and Legal Analysis must then develop recommended legislation to standardize the statutory language by September 1, 2021.
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. Relying on the state’s privilege to withhold names of informants, the Maine Supreme Judicial Court in Dubois v. Department of Agriculture, Conservation and Forestry, 2018 ME 68, ¶ 22, 185 A.3d 743 held the privilege exemption extends to records containing the names of people who had complained to the state agency about the odor from Dubois’s composting facility. SeeR. Evid. 509(a)(1). The Maine Supreme Judicial Court prior 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); M.R. Civ. P. 26(b)(3). The Supreme Judicial Court discussed this exemption in Dubois v. Office of the Attorney General, 2018 ME 67, ¶¶ 18-25, 185 A.3d 734 and held that draft letters circulated within state agencies in anticipation of litigation were not subject to disclosure under the Act. The Court also held the email correspondences that “involved planning for a strategy meeting” fell within the work product “privilege” and, thus, were not subject to public disclosure. Id. at ¶ 24.
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).
Communications between a Constituent and an Elected Official. An exemption protects information contained in these communications if the information is “of a personal nature” or “would be confidential if it were in the possession of another public agency or official.” 1 M.R.S.A. § 402(3)(C-1).
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.
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, the Maine Community College System, and the University of Maine System, when the subject matter is confidential or otherwise protected from disclosure . . . ." 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.
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).
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).
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).
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).
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 in a public meeting. 1 M.R.S.A. § 402(3)(J).
Municipal Recreation Records Concerning Minors. Personally identifying information concerning minors participating in municipal recreation and non-mandatory educational programs are confidential.. 1 M.R.S.A. § 402(3)(K).
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.
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). This includes records or information maintained to ensure government operations and technology continuity and to facilitate disaster recovery.
Social Security Numbers. Social security numbers are confidential. 1 M.R.S.A. § 402(3)(N).
Personal Contact Information Concerning Public Employees. A public employee’s personal address, telephone number, facsimile number, e-mail address, cellular telephone number, pager number and username, password and uniform resource locator for a personal social media account are 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.
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).
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).
[intentionally omitted]
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).
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).
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). In contrast, the exemption does not cover records related to the discharge of certain hazardous materials transported by railroad companies.
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). The Maine Supreme Court discussed the property taxpayer information exemption in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812, and held the property information submitted by Blue Sky West to Maine Revenue Services could not be shared with the county unless the record (1) was designated as confidential when submitted and (2) contained proprietary information. There are many such exemptions scattered throughout Maine statutes. See e.g., 36 M.R.S.A. § 706-A(1) (exempting confidential and proprietary property tax information as public record). A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here: http://www.mainelegislature.org/legis/foa/ (last visited July 6, 2021). 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

Documents that have been ruled exempt from disclosure by a protective order are exempt from disclosure under the Act. See Bangor Pub. Co. v. Town of Bucksport, 682 A.2d 227, 229 (Me.1996). The court has implicitly held that a confidentiality agreement between a government entity and a third-party does not exempt records from the Act. In Guy Gannett Pub. Co. v Univ. of Me., 555 A.2d 470 (Me. 1989), the Court ordered disclosure of a settlement agreement between the University of Maine and a former basketball coach notwithstanding an agreement between the University and the former coach “that neither they, nor any of their officers, employees or representatives will disclose or communicate to anyone any portion or condition of this Settlement Agreement.” 555 A.2d at 474.

In addition, “A body, an agency or an official may seek protection from a request for inspection or copying that is unduly burdensome or oppressive by filing an action for an order of protection in the Superior Court for the county where the request for records was made within 30 days of receipt of the request.” 1 M.R.S.A. § 408-A(4-A). See also 35-A M.R.S.A. § 133-A(1) (outlining the procedure for the issuance of protective orders by the Public Utilities Commission).

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E. Interaction between federal and state law

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1. HIPAA

“Health information obtained by Dirigo Health under this chapter that is covered by the federal Health Insurance Portability and Accountability Act of 1996 or [state statute] . . . is confidential and not open to public inspection.” 24-A M.R.S.A. § 6907(2).

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2. DPPA

Except as required by the federal Drivers Privacy Protection Act of 1994, the Secretary of State may not disseminate “the social security number of any applicant for a license or nondriver identification card.” 29-A M.R.S.A. §§ 1301(6), (6-A).

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3. FERPA

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).

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4. Other

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F. Segregability requirements

Under Maine law, government agencies must disclose segregable portions of otherwise confidential records. See, e.g., Guy Gannett Pub. Co. v. Univ. of Me.,
555 A.2d 470, 470 (Me. 1989) (ordering disclosure of settlement agreement except for “one sentence” pertaining to the public employee’s medical information, which is designated confidential by statute). Any confidential portions of an otherwise record may be redacted. According to the Maine AG’s FOAA website (https://www.maine.gov/foaa/faq/index.shtml): “If the record you requested contains any confidential or excepted information, the custodian will decide if the confidential or excepted information can be adequately redacted or blacked out so that public access can be provided or if public access to the document should be denied.”

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G. Agency obligation to identify basis of redaction or withholding

When an agency denies a FOAA request, it must provide the requester “written notice . . . stating the reason for the denial.”1 M.R.S.A. § 408-A(4).

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III. Record categories - open or closed

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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. The Maine Supreme Court discussed the taxpayer information exemption in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812, and held the property information submitted by Blue Sky West to Maine Revenue Services could not be shared with the county unless the record (1) was designated as confidential when submitted and (2) contained proprietary information. See 36 M.R.S.A. § 706-A(1) (exempting confidential and proprietary taxpayer information).

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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). In 2021, the Legislature passed An Act to Increase Government Accountability by Removing the Restriction on the Dissemination of Information Regarding Investigations. L.D. 894 (130th Legis. 2021). The Act repeals a 2013 law (16 M.R.S.A. § 807) that allowed state law enforcement to issue “Glomar” responses neither confirming the existence or nonexistence of information made confidential by 16 M.R.S.A. § 804. Id.

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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

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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

In general, performance evaluations are confidential 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). See also 30-A M.R.S.A. § 2702(1)(B)(2) (exempting municipal personnel records that contain performance evaluations); 5 M.R.S.A. § 7070(2)(B) (exempting the same for state employees); 30-A M.R.S.A. § 503(B)(2) (exempting the same for county employees).

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7. Complaints filed against employees

Generally, confidential. With only minor 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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8. Other

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O. Police records

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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:

Interfere with law enforcement proceedings;
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;
Constitute an unwarranted invasion of personal privacy;
Disclose the identity of a confidential source;
Disclose confidential information furnished only by the confidential source;
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;
Disclose investigative techniques and procedures or security plans and procedures not generally known by the general public;
Endanger the life or physical safety of any individual, including law enforcement personnel;
Disclose information designated confidential by some other statute;
Interfere with civil enforcement proceedings conducted by the Department of the Attorney General or by a district attorney’s office;
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;
Identify the source of a complaint made to the Department of the Attorney General involving violations of consumer or antitrust laws.

In 2021, the Legislature passed An Act to Increase Government Accountability by Removing the Restriction on the Dissemination of Information Regarding Investigations. L.D. 894 (130th Legis. 2021). The Act repeals a 2013 law (16 M.R.S.A. § 807) that allowed state law enforcement to issue “Glomar” responses neither confirming the existence or nonexistence of information made confidential by 16 M.R.S.A. § 804. Id.

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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 an informant identity 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 Agric., Conservation & Forestry, 2018 ME 68, ¶ 22, 185 A.3d 743.

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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). However, in 2021, the Legislature passed An Act to Increase Government Accountability by Removing the Restriction on the Dissemination of Information Regarding Investigations. L.D. 894 (130th Legis. 2021). The Act repeals a 2013 law (16 M.R.S.A. § 807) that allowed state law enforcement to issue “Glomar” responses neither confirming the existence or nonexistence of information made confidential by 16 M.R.S.A. § 804. Id.

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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)

Maine does not have body-worn camera specific laws. Generally, access to police video records is controlled by the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §§ 801-809. Those records that “contain[] intelligence and investigative record information … may not be disseminated by a Maine criminal justice agency to any person or public or private entity if” there are risks including: interference with criminal or civil legal proceedings, invasions of privacy, disclosure of confidential sources or information, potential endangerment of law enforcement or others, or disclosure of investigative techniques, among other risks. 16 M.R.S.A. § 804.

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

Access to biometric data is controlled by the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §§ 801-809.

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16. Arrest/search warrants and supporting affidavits

Access to arrest and search warrants and supporting affidavits is controlled by the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §§ 801-809.

Access to warrants and affidavits filed with the courts is subject to Administrative Order JB-05-20, “Public Information and Confidentiality,” which states that the courts may keep confidential information contained in or relating to “a pending request for or an outstanding search warrant, arrest warrant, or other document that contains confidential law enforcement information.” Id. § II(H)(4). The Maine Rules of Criminal Procedure provide that “[t]he warrant and affidavit materials shall be treated as impounded until the return is filed.” M.R. Crim. P. 41(f)(2)(A). After the return is filed, the arrest warrant and supporting materials are a public record. However, “The judge, upon motion or upon the judge’s own motion, may for good cause order the clerk to impound some or all of the warrant materials until a specified date or event.” M.R. Crim. P. 41(h). There are no reported cases interpreting the rule.

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17. Physical evidence

Access to physical evidence is controlled by the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §§ 801-809.

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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:

Records relating to prisoner furloughs to the extent they pertain to a prisoner's identity, conviction data, address of furlough and dates of furlough;
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
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

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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).

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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

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. 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

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5. Research material or publications

No statutory exception has been identified.

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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

Income tax records are 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. However, property tax records are generally public and many municipalities publish property assessment records on their websites. The Maine Supreme Judicial Court discussed the exemption for property taxpayer information in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812 and held Blue Sky’s 2016 records were not exempt as confidential.

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W. Vital Statistics

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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

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3. Death certificates

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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

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A. How to start

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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. According to the Maine Attorney General, “The FOAA does not require that requests for public records be in writing. However, most governmental bodies and agencies ask individuals to submit requests in writing in order to maintain a record of when the request was received and what records were specifically requested.” 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

The statute does not specify a format for requests and there are no required forms. See 1 M.R.S. § 408-A. However, the FOAA website offers guidance on what to include in a request and can be accessed here:

In order for the governmental body, agency or official to promptly respond to your request, you should be as specific as possible when describing the records you are seeking. If a particular document is required, it should be identified precisely-preferably by author, date and title. However, a request does not have to be that specific. If you cannot identify a specific record, you should clearly explain the type of records you are seeking, from what timeframe and what subject the records should contain. For example, assume you want to obtain a list of active landfills near your home. A request to the state Department of Environmental Protection asking for "all records on landfills" is very broad and would likely produce volumes of records. The fees for such a request would be very high; the agency would likely find your request too vague and ask that you make it more specific. On the other hand, a request for "all records identifying landfills within 20 miles of 147 Main Street in Augusta" is very specific and the request might fail to produce the information you desire because the agency has no record containing data organized in that exact fashion. You might instead consider requesting any record that identifies "all active landfills in Augusta" or "all active landfills in Kennebec County." It is more likely that a record exists which contains this information. You might also want to explain to the agency exactly what information you hope to learn from the record. In other words, if you are really trying to determine whether any active landfills near your home in Augusta accept only wood waste, this additional explanation may help the agency narrow its search and find a record that meets the exact request. See https://www.maine.gov/foaa/request/index.shtml.

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

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5. Availability of expedited processing

The statute does not specifically provide for or preclude expedited processing. A person requesting expedited processing should explain the reason for the request and follow-up frequently on the status of the request.

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B. How long to wait

An agency or official must confirm receipt of a FOAA request within 5 working days of receipt. 1 M.R.S.A. § 408-A(3). The agency or officially must then “provide a good faith, nonbinding estimate of the time within which the agency or official will comply with the request, as well as a cost estimate,” and make a good faith effort to respond within the estimate time. Id. Ultimately, the record must be made available “within a reasonable time of making the request to inspect or copy the public record.” Id. § 408-A.

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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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