Right to know (and see and hear)
Council and Committee members informed on Right to Know law
By Elizabeth Prata

Gray--On Thursday, January 27, the Town Attorney Bill Dale presented an update and refresher on the Freedom of Access law, commonly known as the Right to Know law to Gray Committee members, the Council, and Manager. Title 1 is the law that makes it possible for citizens to see and hear what is going on with their government.

Did you know…that the Right to Know law protects the right of the public to see and hear the public proceedings but does not protect their right to speak?

Mr. Dale distributed a handout containing the basics the people assembled should know, went through a presentation, and then answered questions. The memo is excerpted here, interspersed with questions from audience members and Mr. Dale's answers.

"Maine's Right to Know Law (also known as the Freedom of Access Act), which can be found at M.R.S.A. sec.401 et seq., ensures the "the records of [the actions taken at public proceedings] be open to public inspection and their deliberations be conducted openly." The act specifically targets "clandestine meetings, conferences or meeting, conferences or meetings held on private property without proper notice" as violations of the law.

Who is Subject to the Right to Know Law?

Most municipal agencies are subject to the parameters set forth in the Right to Know Law. The statute states specifically that "any board, commission, agency, or authority of any county, municipality, school district or any regional or other political or administrative subdivision." 1 M.R.S.A sec. 402 (2)(C). Therefore, most municipal units conducting municipal business are subject to the Act.

Mr. Dale said that everyone is equal under the law when requesting documents, the media has no more or less privilege than a regular citizen, and vice versa. "All should be treated the same," Mr. Dale said.

What meetings are the public allowed to attend?

The public should be allowed to attend almost any meeting, and the records from those meetings should be open soon thereafter for public inspection. There is an exception to this rule for executive sessions. 1 M.R.S.A sec 403.

Mr. Dale noted that the law protects citizens rights to see and hear public proceedings, but their right to speak is not protected.

Should the public be informed of these meetings?

Yes the public should be informed of any meeting involving three or more public officials. [If there are two or less, the officials should not be conducting public business.] The public should be given notice in "ample time" to allow attendance, and the manner of publication should reach a wide number of the general public. Placing a notice in the local newspaper should suffice to satisfy this requirement. 1 M.R.S.A. sec. 406.

Town Manager Mitchell A. Berkowitz asked, "What are the requirements for posting notices?" Mr. Dale said that the point of the right to know law is that the public should be notified. Title 1 says that the public should be given ample time to allow for public attendance. Also, there are many towns that have a local charter that speaks specifically to the issue.

Section 10 in Gray's Charter, says, "The Town Council shall post an agenda at least seven (7) days prior to regularly scheduled Town Council meetings."

What is an Executive Session? What can be discussed in an Executive Session?

A 3/5 vote of present members of an agency is needed to move to an executive sessions. In the executive session, the executive group may not make final approval on any "ordinances, orders, rules, resolutions, regulation, contracts, appointments, or other official actions." The motion to go into an executive session". 1 M.R.S.A. sec. 405. Agencies and boards should be careful to adhere to this rule, as circumventing the democratic process through liberal use of the executive session rule is a common citizen complaint.

In the executive session, the executive group can discuss only the following:
--Discussion or consideration of employment, appointment, assignment, duties, job status, discipline, resignation or dismissal of public officials.
--Discussions regarding students (make sure the student and legal counsel, as well as the student's Parents are allowed to attend.
--Property issues
--Negotiations between public employees and employers
--Consultations between the municipality and its attorney

Any other item where public access is prohibited by statute. Mr. Dale cited a precedent where the executive session members in one town drifted off into other, but related topics, and a judge ordered all notes pertaining to the non-executive session discussion be made public.

When are municipalities allowed to go into Executive Session on Employment Matters?

An executive session in regard to employment status of public officials is allowed when:

--Public discussion would violate the individual's right to privacy or damage their reputation, or The person to be discussed in the executive session is allowed to attend. Any person bringing charges against another person also has the right to attend.

The person to be discussed in executive session may insist on having the meeting open, and the person bringing charges against that person may be allowed to attend either the open meeting or the executive session. 1 M.R.S.A. sec. 405.

Who can access public records, and how?

Any citizen may access public records during regular business hours at your city or town hall, where they should be made available to the citizens. 1 M.R.S.A. sec. 408.

What remedies do citizens have against a town that doesn't conform to the Right to Know Law?

Municipalities can be fined up to $500 violations of the Right to Know Law. In addition, if a citizen's request for a public record is denied by the municipality, the municipality must file a notice stating the reason for the denial within 5 days. The requesting party then has 5 working days upon receipt of the notice of denial in which to file an appeal to any Superior Court within the state. 1 M.R.S.A sec. 409.

[Note: A majority of members on the Committee to Study Compliance with Maine's Freedom of Access Laws, of which The Monument Editor was a member, is recommending to the Judiciary Committee of the 122nd Legislature that the courts should be authorized to award reasonable attorney's fees to the wholly prevailing party if the court determines that the failure to comply with the law was committed in bad faith or that the requested access or the enforcement action was frivolous, vexatious, or without merit.

What are public records? What records are exempt?

Public records have been defined by the Legislature as "any written, printed or graphic matter or any mechanical or electronic compilation from which information can be obtained…" This includes e-mails. Records that are exempt include those that are confidential, records that are not discoverable in civil or criminal cases, legislative working papers (until they become law), negotiation papers, medical records, and juvenile records. The exemptions are enumerated at 1 M.R.S.A. sec 402(3)(A-K).

Ordinance Review Committee member Bill Getz asked whether e-mails to members containing revised drafts of working documents constitute public documents. Dale said that there is a thin line between what constitutes an e-mail discussion, and is thus a meeting, and those that are simple e-mails sent to members for their review of working papers. When in doubt, Dale said, remember that committee members are by proxy Council representatives and when they are doing the public's business, the public has a right to know.

Planning Board member Don Hutchings asked if handwritten notes taken at meetings are public. Dale referred to his checklist which says, "Take copious notes of the proceedings." Dale said that the members should not put anything to paper that they would not put on Town of Gray letterhead and wish to become public. "So the personal notes that say, 'she is the foxiest chick I ever saw' would be a poor example of note taking, because it could become a public document and if asked for, must be produced."

What should I do if a request has been made for a record, and I am unsure as to whether it is a public record?

Consult the Maine statutes or, in the absence of a clear answer therein, contact your municipal attorney [or a member of the working press.]

Checklist for Municipal Planning
Give Proper Notice for the Meeting
Admit the Public to the meeting
Retreat into Executive Session only when Necessary and Allowed by Statute
Take Copious Notes of the Proceedings, or have them Recorded (Establish and Maintain a Record)
Make the Records Available to the Public