TMW: Maine Freedom of Access Under Attack

Maine’s Freedom of Access Act, an important tool that allows journalists and citizens to hold state and local governments accountable, is under attack.

The Right to Know Advisory Committee, a legislative body that advises on matters related to access to government records, heard testimony on Thursday about alleged violations by citizens.

Neal Goldberg, spokesman for the Maine Municipal Association, told the committee that “bad actors” abuse FOA because they just wanted to stress out city officials. He offered no evidence of the malicious intent he imputed to the requesters’ motives. But let’s admit for a moment that mysterious malefactors demand public records for a nefarious ulterior motive.

If that is worthy of the Committee’s consideration, why shouldn’t the Committee also consider the ‘bad actors’ on the other side of the equation? That said, why shouldn’t the committee question whether government employees are manipulating and exploiting loopholes in the law?

If the Maine Municipal Association can assume malice and bad character in the requester, then it is just as fair to assume the same of the requestee. For example, if “bad actors” use loopholes to avoid transparency for self-interested political reasons, this should not cause the committee much concern.

To take a specific example, consider a request that The Maine Wire sent to Maine Governor Janet Mills, the Department of Health and Human Services, and the Maine Centers for Disease Control more than a year ago.

After these government agencies decided to bar Maine Wire reporter Katherine Revello from weekly COVID-19 briefing calls, we filed a public-record request that may shed some light on that decision. In particular, we asked for communications between and between government agencies that would show why a journalist was barred from important public health information.

More than a year later, this request remains unfulfilled.

The Mills administration has not offered an explanation for the delay.

This request was a routine act of journalism, not a tedious investigation. Journalists across the state should also take a keen interest in this issue, as it affects their own ability to perform routine journalistic acts. Unfortunately crickets from Maine’s major newspapers. Irrespective of this, the main issue is whether political actors will be allowed to thwart journalistic investigations and thus undermine freedom of the press.

Because of weaknesses in Maine’s Public Records Act, there is no mechanism to hold government actors – even political employees and policy appointees – accountable for imposing unreasonable delays or exorbitant costs on requests. Simply put, Mills – and any political actor in the future – can refuse to respond to simple, legitimate, journalistic requests and there will be no consequences.

In MMA’s words, “bad actors” could conceivably receive an FOA request from a journalist and delay fulfilling the request until after an election — or after they are out of office — if they believe that this could have a bad impact on their reputation. Depending on your perspective, this is exactly what is already happening. (I’m sure the media and left-wing activists would be level-headed if the LePage administration delayed public record keeping for more than a year after the Press Herald published reports of a public health briefing.)

This is just one of FOA’s many material weaknesses. Instead of dealing with a handful of pesky FOA requesters whose behavior current law can already handle, the committee should deal with bad actors on the record production side.

The Maine Freedom of Access Act means nothing if government officials can ignore it with impunity.

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