TMW: Maine Freedom of Access Under Attack

Maine’s Freedom of Access Act, a critical tool journalists and citizens can use to hold state and local governments accountable, is under attack.

The “Right to Know” Advisory committee, a legislative body that deliberates on matters concerning access to government records, heard testimony Thursday regarding alleged abuses by citizens of the law.

Neal Goldberg, spokesperson for the Maine Municipal Association, told the committee “bad actors” were abusing FOA because they just wanted to stress out town officials. He didn’t offer any evidence to support the malevolent intentions he imputed to requesters’ motives. But let’s cede for a moment that mysterious evil doers are asking for public records for some nefarious ulterior motive.

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

If Maine Municipal Association can assume ill will and bad character of requestors, then it’s equally fair to assume the same of the requestees. For example, if “bad actors” are using loopholds to avoid transparency for selfish political reasons, this should be off utmost concern to the committee.

To take a specific example, let’s consider a request The Maine Wire submitted more than a year ago to Maine Gov. Janet Mills, the Department of Health and Human Services, and the Maine Centers for Disease Control.

After those government agencies decided to boot Maine Wire reporter Katherine Revello from weekly COVID-19 briefing calls, we filed a request for public records that might shed some light on that decision. Specifically, we asked for communications between and among those government agencies that would show why a journalist was excluded from vital public health briefings.

That request remains unfulfilled more than one year later.

The Mills administration hasn’t offered an explanation for the delay.

This request was a routine act of journalism, not some nuisance inquiry. Journalists throughout the state should be highly interested in this matter as well, as it bears on their own ability to conduct routine acts of journalism. Alas, crickets from Maine’s major newspapers. Regardless, the issue is very much a matter of whether political actors will be allowed to thwart journalistic inquiry and thereby undermine the freedom of the press.

Because of weaknesses in Maine’s public records law, there is no mechanism to hold government actors — even political employees and political appointees — accountable when they impose unreasonable delays or exorbitant costs on requests. Put simply, Mills — and any political actor in the future — can refuse to respond to simple, legitimate, journalistic inquiries, and there will be no repercussions.

To use MMA’s words, “bad actors” could conceivable receive a FOA request from a journalist and delay fulfilling the request until after an election — or after they’re out of office — if they thought it might reflect poorly on their reputation. Depending on your perspective, this is exactly what’s already happening. (I’m sure the media and left-wing activists would be level-headed if the LePage administration delayed the production of public records for more than a year after booting Press Herald reports off a public health briefing.)

This is just one of the many material weaknesses in FOA. Rather than concern themselves with a handful of nuisance FOA requestors whose behavior the current law can already deal with, the committee ought to address bad actors on the record production side.

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