Freedom of information requests — rights vs. burden

By Dawn De Busk

Staff Writer

CASCO — The Town of Casco offices have been flooded with requests for information under the Freedom Of Information Access (FOIA) Act. During the past year, those requests have increased from an average of one to three a year, to as many as 15 per month.

According to town office records, in August 2010, there were four FOIA Act requests; September 2010, four; October 2010, seven; November 2010, seven; December 2010, zero; January, zero; February, 11; March, 15; June, three; and for July, one FOIA Act request so far.

With the exception of two, the majority of the FOIA Act requests during the past 11 months were from Jeannine Oren and Jenn Murray, according to records. Both women served on the Casco Finance Committee during the past fiscal year. Oren also worked on the Media Sharing Committee.

Although it did not pass during this Maine Legislative Session, a proposed bill (LD 1465, SP 456) would amend and strengthen the state’s FOIA Act; and Casco Board of Selectmen Chairman Barbara York is concerned how that would affect the Town of Casco, as well as other small towns with limited staff.

The FOIA Act — also referred to as Sunshine Law — was designed to give both the media and citizens access to information that is included in the definitions of public records and open meetings. Currently, by law, town government and selectmen are required to respond to FOIA Act requests within a reasonable period of time, informing the person or group that made the request of a timeline to have those documents ready to be copied or inspected as well as simply acknowledging that a request was received.

The government agency cannot charge anyone for inspecting documents; however, citizens making FOIA Act requests should pay the cost of copying, according to the current law. (In Casco, the cost is 50 cents per page.)

A public record is “any document relating to the transaction of public or governmental business,” according to the Maine Press Association’s Right To Know pamphlet. Related documents extend to e-mails, letters, rough drafts, notes, and inter-office memoranda, the brochure said.

State and local government agencies, school districts, city councils, boards of selectmen and town-appointed committees and boards are all subject to Sunshine Laws because they are public rather than private entities.

During a recent board meeting, Chairman York brought up the prospect of tallying the costs of staff and photocopies that were a result of the numerous FOIA Act requests made to the town.

“I think it’s important for the taxpayers to know,” York said. “I don’t think people realize how much time it takes, and how much it is costing the town.”

At the time, Selectman Ray Grant said it would be counter-productive for town staff to spend time calculating the costs of FOIA requests. It would be spending money to see how much money has been spent on an issue, he said.

“We should all have the right to get information if we want to know something,” York said.

“But, it should be used respectfully,” she said of the increased number of FOIA Act requests made of the town. “I am not sure if I am the judge of who goes too far with FOIAs. I have every respect for people wanting to know, and they should know. I don’t know if taxpayers fully understand the actual cost of it.”

According to LD 1465, some of the changes would include: substituting “must” instead of “shall” in the list of steps required of any government agency when an FOIA request is made, and requiring the government agency to provide the requester with an estimated cost before proceeding with the information-gathering process.

Also, the proposed changes would allow the person requesting the information to acquire it through a telephone call or an e-mail, rather than making a trip to the agency’s offices.

In addition, the amendment would require all government agencies to delegate to a staff member the duties of an FOIA Act Officer, who would be knowledgeable about the state’s Sunshine Laws.

According to Casco Town Manager Dave Morton, the proposals are so strong as to make at least one staff member postpone other tasks, and give attention to FOIA Act requests — something he said the town already takes seriously.

Morton said he immediately acknowledges the FOIA request. Then, he usually responds within three to five days with how much it will cost or how much longer it will take to gather the information.

“One of the more difficult ones would have been in March, when they (Oren and Murray) requested all correspondence between legal counsel and myself. It took five hours of my time, four hours of staff time, and one hour of legal counsel’s time just to identify records and get a count. With reproduction costs, it would have totaled $1,200.”

Lately, Morton and his staff have created a budget timeline in their work schedules to address the anticipated FOIA requests coming into the office on a regular basis.

“Because of the time that it takes for staff to research it, something else in the office doesn’t get done, or it gets put off,” he said.

When York heard about the proposed bill, she phoned her local representatives, State Senator Bill Diamond (D-12th District) and State Representative Gary Plummer (D-111th District) to express her concerns about the amendments.

“I asked if they would check into the bill for us because we’ve had a lot of use of the FOIA law. For us, it’s been a lot of work for a few people,” York said.

She said both politicians said they understood her concerns, but assured her that the committee wasn’t voting on the bill during the first Legislative Session, which wrapped up last month.

State Senator Richard W. Rosen (R-District 31) introduced the bill, which he said is being reviewed this summer by the Right To Know Advisory Committee that is tasked with making recommendations to the proposal.

“If the recommendations that come out of the Right to Know Advisory Committee maintain the goal of expanding government transparency in Maine, I will be happy to support them,” Rosen said.

York said she was concerned about the required appointment of an FOIA Act Officer, or giving those duties to an already busy staff member.

“What do these towns do that have only one clerk?” York asked.

“One FOIA required information from the firemen, the rescue workers, the town lawyer, all the selectmen, and the town manager,” she said. “It was a lot of work to acquire information from all those people.”

York cited another request that asked for data going back to 1971. A town employee made a trip to the old bank building, where boxes of paperwork were stored in order to locate those documents. That requested information dealt with town funds being used to plow public easements, an issue that comes before a vote at town meeting every year since 1971.

Former committee member and Casco resident Jeannine Oren said some of her FOIA Act requests were last-ditch efforts to garner information that she had asked for several times.

“None of the requests have ever been made for any reason other than to help a committee,” she said. “Sometimes, the only way to get the attention of a public official is to make a request under FOIA statute. I don’t think some town managers want to be bothered by those requests. It takes up staff time.”

“I grew up and cut my teeth in journalism in the State of Ohio. I am media savvy. I know how to follow up. The issues I bring up change policies in this town,” Oren said. “People have a voice and a vote and access to information.”

Sen. Rosen said he thought the legislation was necessary after some frustration using the current FOIA Act a few years ago.

“When I served as Assistant Senate Republican Leader for the 121st Legislature, we found our requests for documents related to the PIN RX pharmacy scandal blocked and sidelined,” he wrote.

“Because of the nature of the transparency policy, any changes that expand the public’s right to know (would) require the government to change its behavior. Just like changes that favor government (would) make it more difficult for citizens to access public records,” Rosen said. “I believe that the provisions hold government as well as members of the public accountable in regards to FOIA requests.”

“I am under no illusions that government agencies will flock to support the changes proposed in this bill,” Rosen added.

Oren said she would like to see harsher penalties in the proposed legislation.

“I certainly don’t want to see Freedom of Access laws in the State of Maine chipped away. Freedom of information is power,” Oren said. “What the legislature needs to do is to put some teeth into the penalty phase of violating them.”

Morton said there should be a balance in the law — not just penalizing governmental agencies for non-compliance, but also addressing over-use of the act by citizens.

“The purpose is good. The reasoning behind towns having to comply makes sense,” Morton said. “But, there is no mechanism in the law for people who abuse FOIA requests.”

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