The following blog post is one of several that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.
By Jim Campbell | Maine Freedom of Information Coalition
“All over the United States, as well as in many other countries, there seems to be a surge of efforts by governments to limit access to information collected, generated, or held by governments at all levels.
“Sometimes limitations are enacted in the name of security (national or local); sometimes in the name of privacy; sometimes because providing that information would be ‘a burden’ on government agencies; sometimes to protect ‘trade secrets’ whose public availability would offend businesses that states are increasingly trying to retain or woo to bolster their economies. Whatever the proffered justification, the result is the same: additional limitations on citizen access to information that taxpayers are footing the bill for.”
The very same introduction applies during Sunshine Week 2017, although perhaps even more strongly now. Here is a summary of some of the issues the MFOIC has acted on since last year.
Legislative Candidate’s Pledge
MFOIC contacted all 365 candidates for the Maine Legislature running in the November 2016 election and asked them if they would sign a pledge “to uphold and protect the letter and the spirit of the Maine Freedom of Access Act.”
Of the 365 candidates, 86 said they were willing to sign the pledge. (Several others said they supported the content but did not feel that candidates should be asked to sign pledges.) This is twice the number who signed a similar pledge in 2012, and represented about 24 percent of legislative candidates.
Judicial Branch Action Regarding Dismissed Cases
In Maine, the Administrative Office of the Courts began implementing a new policy “of impounding all files of dismissed criminal cases, except for those ending in a plea, once 30 days have passed after charges have been dismissed. This policy also, apparently, prevents criminal defendants charged with crimes from accessing their own dismissed case files.” (Quote taken from a letter to the Chief Justices written by First Amendment attorney Sigmund Schutz, a member of MFOIC and the New England First Amendment Coalition, and supported by the coalitions as well as other organizations.) The new policy was reviewed and set aside, thus keeping access to dismissed cases public.
Terrence E. Pinkham v. Dept. of Transportation
MFOIC, along with NEFAC, filed an amicus brief in a case that involved the Maine Department of Transportation, which asserted that appraisal reports in MDOT takings are exempted from disclosure to the public under Maine’s Freedom of Access Act (FOAA). This meant, according to the MDOT, that a plaintiff who wanted to dispute the valuation on his taken property could not have access to the appraisal even though that plaintiff was seeking discovery in a court proceeding. The court found, as suggested in our brief, that simply because appraisals are exempted under FOAA rules does not mean that they are exempt from disclosure to parties in litigation with the State of Maine.
Conservatorship of Emma
A conservator of a parent’s estate petitioned to have information about the assets of the estate removed from a County Probate Court’s website. The information is available at the court’s physical premises at any time it is open; the petitioner just does not want it to be placed online. The Supreme Judicial Court was asked to decide whether this should be state practice for probate courts, and the court requested that MFOIC act as appellee and submit a brief arguing that such information should be available in electronic form online just as it is in physical form at the probate court’s location. The appellant submitted a brief, supported by the American Civil Liberties Union of Maine, arguing that certain probate court information, specifically financial information, that is available physically should not be available online. In the end, the Supreme Judicial Court decided not to decide on the question. The MFOIC in January submitted comments on regulations seeking to address the issue in lieu of a court decision.
In the present political climate, there is likely to be even more resistance on the part of some government entities to keep access to government information as open as possible for citizens. Those who believe, along with Justice Brandeis that, indeed, “Sunshine is the best disinfectant” must therefore be more alert and active in ensuring that we all have the information we need as citizens to make informed decisions and to keep our government all levels accountable to those who consent to be governed.
Jim Campbell is president of the Maine Freedom of Information Coalition.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here.
Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.