Maine’s Freedom of Access law Is hopelessly broken

By Matthew Gagnon

One of the most universally supported laws in America is the Freedom of Information Act (FOIA), which empowers the public to obtain information about what its government is doing.

Maine has a similar law, known as the Freedom of Access Act (or FOAA). In creating it, the Legislature  was clear about their intent, writing in their statement of public policy, “it is the intent of the Legislature that their actions be taken openly and that the records of their actions be open to public inspection and their deliberations be conducted openly.” 

Unfortunately, despite that lofty intent, FOAA is hopelessly broken in three fundamental ways.

The first problem is related to control of information. As the law is written, the target of a FOAA request is charged with compliance. So if you ask for emails that a lawmaker sent to specific individuals over a specific amount of time, it likely will be that same lawmaker that searches for and compiles the requested emails and sends them to you. 

The flaw is easy to see. How do we know we are actually getting what we requested, and materials aren’t being held back or destroyed? If you are requesting potentially explosive information that may expose malfeasance, is the party being investigated really trustworthy in collecting and disclosing said malfeasance?

The second problem is cost. The target entity in question is not only in charge of fulfilling the request, but they are also in charge of providing a cost estimate. How much time should something take to fulfill? It is ultimately up to the target to answer that, which often results in greatly exaggerated time estimates and heavy fees.

And even if the estimates are fair, which they often aren’t, the sheer scope of information requests can ultimately price out any kind of investigation. Earlier this week, for instance, Steve Robinson of The Maine Wire requested that the Department of Health and Human services turn over disciplinary records of DHHS staff, an important request given the recent problems with Maine’s Child Protective Services agency. The Maine Wire was founded by the Maine Policy Institute.

The quote Robinson received back was for $4,950, an astronomical cost even for a mainstream news outlet to afford. Given that cost, it is unlikely the information will ever have to be turned over. 

Sadly, this is not the only time this type of enormous cost estimate has been given. A relatively simple request for COVID data made by the Maine Policy Institute to the Maine Center for Disease Control in 2021 resulted in a fee estimate of $6,000. 

There is more to the cost problem than just fees, though. Targets of FOAA requests have a statutory requirement to respond and acknowledge the request within five working days. Robinson made a request of the Maine Department of Education on Sept. 15 and received no response, and re-requested the same information again on Oct. 15 and again no response. 

This is a violation of the law. Yet while there is an official “ombudsman” that is supposed to help mediate these types of disputes, in reality that office has little authority. The only way to hold the government accountable is through litigation, an expensive proposition that makes holding the government accountable harder.

The third problem, and perhaps the worst, is time. On Jan. 8, 2014, while she was serving as Maine’s attorney general, Janet Mills sent a strongly worded letter to then-Gov. Paul LePage “demanding the immediate release of the so-called Alexander report,” noting that the initial request was made of the administration roughly a month prior. This, to Mills, was an unacceptable period of time to wait. She accused LePage of acting in bad faith by “resisting disclosure,” advising him to immediately comply lest “legal consequences” result.

I agree with Mills’ perspective, actually. LePage was uninterested in turning over the Alexander report and was almost certainly delaying for the sake of delay. 

But Mills’ lack of patience with having to wait 22 days is more than a little interesting in context, given that her administration has dodged compliance with some FOAA requests for more than a year. 

The only way to fix this mess is to radically reform the system. A bill has been submitted by Rep. John Andrews this session that would fix the problems in Maine’s FOAA. It would put compliance in the hands of a third party, cap fees at $600, and require by law that documents be turned over within 60 days. These small but important changes would fundamentally reshape the public’s ability to know what its government is doing, and should be supported by everyone.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.