How to Request Information
Under Maine's Freedom of Access Act

-by Avery Day, Partner

Are you looking for information held by an agency of the state, county or municipal government?  You may want to use the process created by Maine’s Freedom of Access Act (FOAA), 1 M.R.S.A. §§ 400 et seq., to access this information.  The Maine Legislature enacted the Freedom of Access Act in the mid-1970s as a way to guarantee access to public meetings and public records at the state and local level – a state-level complement to the federal Freedom of Information Act.  FOAA is used every day to access information from police reports to RFP bid evaluation materials.

The Freedom of Access Act applies broadly to government bodies.  This includes not only state agencies but also county and local government.  Temporary or ad hoc government entities are usually swept into this law as well.  A large amount of information is available to the public, provided a FOAA request is directed to the agency holding that information.

During my service in state government, I regularly fulfilled these requests and worked with various state agencies to help them fulfill the requests that they received.  Part of this work involved hosting a “FOAA roundtable,” where various agencies met to discuss the process and exchange best practices.  This was not always the most exciting work but it did provide taxpayers with information about how their government is run and furthered government transparency.

The following are my thoughts on how to get the most out of this process:

Determine to Whom the Request Should be Addressed

 

  • Find the Right Agency – It is important to figure out which entity of government holds the records you want to review and contact them. For example, your local police department will not have records related to an incident investigated by the State Police.

 

  •  Find the Right Person – Each unit of government should have a designated point of contact to receive FOAA requests. Contacts for state agencies are available on the internet.  Local and county contacts may require a little bit of digging.  Try to address the request to the right person, but know that any government employee who receives your request is required to send it to their agency’s FOAA contact.

 

If you do send your request to the wrong place, it is very possible that the agency receiving it will help you by forwarding it to the correct agency.  This is not a requirement of the law and you cannot always count on it, but it is not unusual to receive this kind of assistance.

 

How Should Your Request be Formatted?

 

There is no standard form to complete and no magic words to invoke in order to submit a FOAA request.  A request can be made by letter, e-mail or even verbally over the phone or in person.  That being said, here are some best practices to craft the most effective request:

 

  • Put It in Writing – While a request does not need to be in writing, a written request is recommended. By distilling your request into writing, you will give more careful thought to what, exactly, you are looking to receive.  A written request also provides clear direction to those who receive it, resulting in a better-guided search.

 

  • Reference the Law – While not required, it helps to invoke the law by making some reference to “the Freedom of Access Act,” “FOAA,” or “1 M.R.S.A. § 400.” Government employees receiving requests for documents should treat all requests as FOAA requests, but putting them on notice that you intend to trigger the formalities of this law will ensure that your request is handled properly.

 

  • Be Specific – Make your request as narrow as possible. It is not always easy to know what you want without first seeing it, but try to be as specific as you can.  Asking for “any and all documents” related to a certain subject matter will likely produce a lot of responsive documents.  More documents mean higher costs, longer processing times and more work for both you and the person fulfilling your request.

 

I’ve Submitted My Request, Now What?

 

You’ve prepared a request and submitted it to the right person.  Here is what you can expect and some thoughts about what else should you be doing while you wait for the request to be fulfilled.

 

  • The First Document You’ll Receive Will Be an Acknowledgement of Receipt – Within five working days, the government agency you sent your request to will acknowledge receipt of your request (sometimes called a “five-day letter”). Agencies are also required to provide you with a “good faith, nonbinding estimate of the time within which the agency or official will comply with the request, as well as a cost estimate . . ..”  This time and cost estimate may be part of your five-day letter or you may receive this estimate at a later time.  The agency is provided “a reasonable time” for formulating its estimate.  These responses should come from your designated point of contact, so do not lose their contact information.

 

  • Know That You Can Always Modify Your Request – After receiving your time and cost estimate, get in touch with your agency point of contact. If the cost is too high or the response time is too slow, you may be able to modify your request in a way that will reduce these estimates.  This process can be fluid and you are in no way locked into your original request.  Do not be afraid to have an ongoing conversation with the agency about the request.

 

  • Check In, If the Request Is Taking a While – Along those same lines, do not hesitate to check in with your contact to see if they are on target to meet their time estimate. You should not call every week, but checking in once or twice does not hurt and lets the agency know you are still interested in receiving your requested documents as soon as possible.

 

  • Use Maine’s Ombudsman as a Resource – Do not hesitate to contact Maine’s Pubic Access Ombudsman if you have questions or fell like something is not going quite right. The Ombudsman may be able to make an inquiry or mediate a disagreement that will speed your request along.

 

  • Give the Person on the Other End of the Request the Benefit of the Doubt – Your contact likely is not the “custodian” or the documents that you are requesting. That means they must rely on others to provide them the documents and they may also have to search the files of former employees.  Documents must be reviewed to ensure that sensitive information, like social security numbers, is not disclosed.  Moreover, most budgets do not include funding to hire employees just to respond to FOAA requests – those fulfilling your request have other jobs that they are expected to perform.  A bit of patience can go a long way.  Rather than assuming you are working with someone who is “trying to hide something,” the better assumption is that the person you are working with just has a lot on their plate.

 

What Might You Receive in Your FOAA Response?

 

Ideally, you will receive the documents you were looking for, but you might see some other things, including:

 

  • Extra Documents – Depending on how broad your request was, you may receive a lot of documents that are only tangentially related to what you were actually seeking. A narrow request may be able sidestep the need to wade through all this paper.

 

  • “Documents” of All Types – Almost any written or electronic document qualifies as a public record accessible by FOAA. This can be anything from recordings of voicemail messages to maps to hand-written notes.  You can expect to see a lot of e-mail messages because they are easy to create, store, search, and retrieve.  The law does not require government agencies to create records that do not exist, nor are you entitled to receive an explanation of the documents that are provided, just the documents themselves.  Additionally, you will only receive documents that were in existence as of the date your request was received.

 

  • An Invoice – Depending on the size of your request, you may receive a bill. If your request was estimated to cost more than $30 to fulfill, you should have received notification of this fact and provided the agency with your approval before it proceeded to complete the request.  You are expected to pay copying costs (which vary by agency), staff time (capped at $15 per hour) and any mailing costs incurred.  You can seek a waiver from these costs, but it is extremely unlikely that a waiver request will be successful.

 

  • A List Describing Withheld Documents and Reason for Withholding – Your response may also contain a log telling you that you are not going to receive certain documents or that some of the documents you did receive were redacted. While FOAA casts a wide net in terms of what is considered a public record, there are literally hundreds of exceptions to FOAA sprinkled throughout Maine’s many statutes that allow agencies to withhold certain documents.  Pay close attention to this log.  It should provide some information regarding what was withheld and the statutory exception that the agency is relying upon to withhold these documents.  Do not be afraid to ask for clarification until you are satisfied that documents are being withheld legitimately.

 

Is There Anything I Can Do If I Am Not Satisfied with My Response?

 

Pursuant to 1 M.R.S.A. § 409, once an agency has issued a refusal or a denial to a FOAA request or failed to allow for an inspection of documents, a requester has 30 calendar days to appeal this decision to Superior Court.  Here are some things to consider before marching into court.

 

  • The Problem Might be Your Request, Not the Agency’s Response – If you think documents are being withheld, first review your request in detail to understand what, exactly, you requested. Also confirm that your request was sent to the right agency.  Finally, consider that there may not be any documents responsive to your request – telephone and in person conversations are not documents and are not reachable by FOAA.

 

  • Basis of Any Appeal to Superior Court – An appeal to Superior Court likely will not be based on a flat refusal of an agency to comply with a request, because agencies understand their duty to respond under this law. Rather, appeals will more likely be based on a decision of an agency to withhold or redact certain documents.  That is why it is important to gather as much information from the agency as possible related to their decision to withhold or redact certain documents – because their application of various FOAA-exceptions may leave room for interpretation.  Additional grounds for appeal may involve unreasonable delay in responding to a request.  In any event, a requester will need to carefully consider the basis of any appeal before proceeding to court.

 

If you need help with a Freedom of Access Act request or are thinking of bringing your request to court, please feel free to contact me at ADay@StevensDayLaw.com or (207) 430-3487.

 

 

Contact Stevens & Day, LLP

82 Winthrop St.,
Augusta, ME 04330

207-430-3288

207-624-0399

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