“You are my sunshine, my only sunshine.”  

Maine’s public records law – or “sunshine law” – is known as the Freedom of Access Act. The first iteration was enacted in 1959, seven years before its federal equivalent, the Freedom of Information Act. Both laws serve the same purpose: They give people a statutory right to obtain access to government information.

Under FOAA, anyone can request access to documents, communications and other materials possessed by elected officials, bureaucrats and other public employees.

While more than 300 exceptions exist to what defines a public record in law, FOAA still provides the only means for citizens to ensure transparency and hold government accountable in Maine – particularly for actions that occur behind closed doors and away from prying eyes.

The way FOAA works is simple: A citizen submits a records request to a government entity. That entity is required to respond and acknowledge receipt of the request within five days. Then that entity searches for and reviews the requested materials (if they exist) and provides the requestor a time and cost estimate to fulfill the request. Once the bill is paid, the documents are turned over to the requestor.

Estimates can vary substantially depending on what material is being requested and whether it’s broad or narrow in scope, as a government employee must formally review the documents to determine if they contain exempted information.

Simple as the process should be, Maine’s FOAA law is broken. It empowers the government to sit on state secrets – not citizens to uncover them – and is in desperate need of immediate reform.

SKIES GRAY, AND TRANSPARENCY UNDER ATTACK

In my experience, most requests take somewhere between 30 and 90 days to be fulfilled, though some departments take longer than others. Regardless, this timeline has taken a real beating under the Mills administration.

In Maine Policy Institute’s 20-plus years of experience submitting FOAA requests, state government’s compliance has never been as poor as it is today. Rarely did we struggle to get information from the government under Govs. John Baldacci or Paul LePage. Struggles are a regular occurrence under the Mills administration. It almost seems as if government offices have been instructed by the chief executive to slow-walk the process and price requestors out of the information they seek.

Some may remember when, as attorney general, Mills wrote a scathing open letter chiding LePage for not releasing the so-called Alexander report, a taxpayer-funded study of Maine’s Medicaid program, in a timely manner – 22 days had passed – after numerous public records requests.

“As the chief law enforcement officer for the state and as a chief advisor on Freedom of Access issues, I must insist that you release this report to all who request it immediately,” Mills wrote at the time.

If only the governor was willing to hold her own administration to that standard.

While the LePage administration’s attempts to flout FOAA requests from the media were wrong, just because the current chief executive doesn’t have such a combative relationship with the media doesn’t mean the law is being followed as it should.

In the last few years, the FOAA process has been unnavigable. Routine requests that should take a matter of weeks instead take several months or more. The cost estimates have spiraled out of control. Fundamental issues with the law itself are being exploited to keep government secrets – well, secret.

FOAA’S FLAWS ENCOURAGE DARKNESS

As I see it, there are four major issues with Maine’s FOAA law.

1) There is no time requirement for a request to be fulfilled; 2) There is no cap on how much can be charged to obtain government information; 3) The agencies which possess the requested materials are the ones fulfilling the requests rather than a disinterested third party; and 4) Compliance isn’t a priority – staffing issues and turnover within departments result in delayed results.

Recent requests submitted by Maine Policy and our online news and opinion arm, The Maine Wire, help highlight these flaws. Two requests submitted to executive branch departments in the last two years have come back with cost estimates of $5,000 or more. Based on the materials requested, these prices are absurd.

Mainers shouldn’t have to sell the farm to obtain information that belongs to them. Providing information requested by the public should be a central focus of the government’s work.

But apparently if the government doesn’t want you to have something, they’ll simply price you out of obtaining it. This can be true under any administration, but there’s no question this facet of the law works in favor of the government rather than Mainers.

Further, some of our requests have seemingly been ignored by the administration. A pair of requests remains unfilled: They are to the Maine Center for Disease Control and Prevention and the Governor’s Office, concerning a so-called “advocacy journalist” policy used to restrict select journalists from CDC briefings in October 2021. (It was dropped shortly thereafter.) The requests were simple: a copy of the policy and all communications related to it within a two-week period. The requests were filed on Oct. 8, 2021. Today is March 12, 2023. That’s 490 days of waiting for public documents which, at best, should take a few hours to produce. Twenty-two days doesn’t sound so bad anymore, does it?

Herein lies the problem with having the agency in possession of the requested materials be the agency responsible for fulfilling the request.

If an agency knows that turning over information would result in public knowledge of any wrongdoing – potentially blemishing the agency itself or its leadership – it has every incentive to delay or deny its existence. The public would never know any better. We simply must trust that they’re being lawful stewards of public information.

And since the only time constraint that exists within law is for an agency to merely acknowledge your request (within five days), the government can then drag its feet for as long as it wants to fulfill it. Maybe you’ll get the information after the administration leaves office, maybe you’ll simply never get it. That’s not how government transparency and accountability should work in Maine.

A SOLUTION ON THE HORIZON

While FOAA is undoubtedly broken, there is hope to fix it this year.

Rep. John Andrews, R-Paris, is working with Maine Policy to sponsor a bill that would dramatically improve the status quo. It would signal to the government that public transparency is a requirement, not a suggestion, and make compliance with these requests a priority of government work. It’s something every news organization in Maine ought to support.

Rep. Andrews’ bill would enhance FOAA in three significant ways.

First, it would cap the fees charged for any single request to $500, ending the practice of assigning exorbitant costs to thwart an inquiry. Second, requests would be handled by a third party – the state’s information technology department – which can access information stored on state servers, circumventing the offices which might wish to stop or delay the release of potentially scandalous information.

Finally, it would require the fulfillment of public records requests within 60 days. No longer could the process be slow-walked to hinder the flow of information to the public in a timely manner. This provision makes clear that transparency is of utmost importance and cannot be shirked to protect government officials.

These changes would give Maine’s FOAA law the teeth it needs to hold leaders accountable and ensure open and transparent government. They would stop any administration of any political party from withholding information that belongs to the public.

If passed, the bill will put an end to the government’s efforts to take our sunshine away.

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