Government transparency? FOAAget about it in Maine

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An area of public policy that is often overlooked is government transparency, which is a shame when one considers that open and accessible government is necessary to effectively discuss and understand any other area of policy. At the federal level, we have the Freedom of Information Act, often abbreviated as FOIA, and at the state level, Maine has the Freedom of Access Act, also known as FOAA. 

While there are certainly complaints about the shortcomings of our federal transparency law, far more exist for Maine’s public records law. Compared to other states, Maine’s law provides weak enforcement, little individual accountability and relies largely on internal agency review rather than expert external action. For these reasons and many others, Maine desperately needs to reform its FOAA law. Each year that passes where we don’t enact reform, Maine state government becomes less accountable to the people of Maine.

Maine’s FOAA law is 65-years-old and actually predates the federal transparency statute by seven years. Since 1959, however, Maine’s FOAA law has been amended several times and many changes have reduced, rather than increased, government transparency and accountability. 

In the 1959 version of the law, violators would face either a fine of no more than $500, which is around $5,400 adjusted for inflation, or up to one year in prison. This version of the statute placed a large amount of responsibility not only on the agency but also on the individual employee wrongfully denying requests for information. In 1975, the law was changed to require a reviewing court to find a violation of the law willful, which severely limited its applicability. Finally, in 1989, violations of the law were changed from criminal act to a civil violation, and imprisonment was removed as a potential punishment.

After that, several procedural amendments were added, and repeated violations within a certain period had larger fines attached. However, these fines now come from the agency rather than the violating employee, as the law now requires that the state agency whose employees committed the violation is subject to the fine rather than the individual government employee. This provision is unlike the transparency laws of many other states. Furthermore, the current maximum per-violation fine of $2,000 is less than half of the original inflation-adjusted maximum fine. This fine was added in a 2019 amendment to the law, and even when considering the last few years’ rapid inflation, is still less than half the original law’s fine. Attorney’s fees are also now included, but only if the court finds the refusal to turn over public documents was made in bad faith.

This decline in the seriousness of consequences for law violations has severely reduced the incentives for agencies to comply with the statute. In 2019, the National Freedom of Information Coalition reviewed all 50 states’ freedom of information laws and gave Maine one of the lowest scores. Not only did we receive an overall “F” grade, but only 11 states scored worse than us. Furthermore, because the court’s award of attorney’s fees is so discretionary and our burden for court review is so difficult to meet, the same survey gave us a 0/4 in fairness of fee structuring. Only six other states received a zero in this category.

Our Legislature can pass many reforms to make the process of requesting public records more effective, some being quite obvious because they were already law at one point in time. Making the individuals who violate the law personally accountable is one of the most important changes that can occur, but adjusting the fine to a level that equals the inflation-adjusted original cost would also encourage compliance. 

Reducing the amount agencies can charge FOAA filers and guaranteeing payment of attorney fees for successful lawsuits would also create more monetary incentives for successful FOAA actions. Lastly, creating an objective agency that reviews or fulfills FOAA requests, either immediately or at an intermediate appellate level before courts, would increase the efficiency of the review process.

Maine’s FOAA law also has an absurd number of subject exceptions–more than 300. Some of these are logical, such as ones protecting constituents’ personally identifiable information. But many cover subjects that clearly should receive public scrutiny. For example, investigative records relating to complaints submitted to our Government Ethics Commission are confidential, including those related to alleged legislative ethics violations. Another type of report protected from FOAA is unpublished legislative papers and draft opinions from the University of Maine System. Both examples above are just two of the many FOAA exemptions on the books, but both are heavily related to corruption and bias in our state government of which the public has a right to know. 

Maine’s current system has caused various transparency controversies in recent years, from Gov. Janet Mills being sued for failing to turn over travel schedules, to heavily delayed responses to requests for information about alleged discrimination against certain journalists during COVID-19 briefings.

There’s no question Maine’s law can be improved. Mainers deserve a real chance to hold its government accountable. Today, they don’t really have one.