March 24, 2018
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State, towns reporting sharp rise in information requests

Scott Thistle | BDN
Scott Thistle | BDN
In a Sun Journal survey, FOAA requests are increasing around Maine as more people are exercising the right to government information under Maine law. In some cases, exercising it over and over.
By Kathryn Skelton, Sun Journal

One Boston website wanted details about any unmanned aerial drones, including how high they fly and whether they can be weaponized.

A New Hampshire author planning a book asked for details about a 2008 shooting.

An Auburn man questioned the dark tint on troopers’ Ford Mustang windows. He’s after those vehicles’ safety certificates.

Those were three of the 6,000-plus Freedom of Access Act requests made to Maine State Police in the last year. In 2000, Maine State Police fielded 53.

Requests have come from businesses, interest groups, media and citizens, and they’ve grown at a fevered pitch.

In a Sun Journal survey of state and local agencies, FOAA requests appear to be increasing around Maine as more people are exercising their right under the open-government law. In some cases, exercising it over and over.

The Town of Falmouth saw more than 50 requests last year from one retired businessman, and that town isn’t alone.

“I can sit at home in my boxer shorts with my laptop and I can bury state government, I can bring it to its knees with FOAAs,” said former Poland Town Manager Dana Lee. “It happened to me.”

Officials at the Departments of Health and Human Services and Environmental Protection said they’ve seen a new trend over the last 18 months: More requests that cast a wider net.

“The irony is that for the hundreds upon hundreds of hours the department is spending to answer these requests, we’re being taken away from the very environmental protection work these groups are alleging we don’t do enough of,” said DEP Communications Director Samantha Warren.

But former state Sen. David Hastings has a different take: If the numbers are up, good.

Hastings is the most recent chair of the state’s Right to Know Advisory Committee.

“There are people out there who see themselves as watchdogs of government and think they’re rooting out corruption, and more power to them, to tell you the truth,” he said.

‘We do our best to comply’

The roots of Maine’s current open records law reach back to 1975. With exceptions, it guarantees access to records and meetings held by government, municipalities and schools. The law has been subject to frequent updates, last year seeing the fee for an agency’s time to fulfill a request rise from $10 an hour to $15 — the first hour is free — and requiring agencies to designate a public access officer to channel requests.

“It’s essential if a democracy is going to function that voters have access to information about what their government is doing,” said Harry Pringle, an attorney and shareholder at Drummond Woodsum who represents school interests on the Right to Know Advisory Committee.

Requests are up at the federal level, as well: from 557,825 in 2009 to 644,165 in 2011, according to the Department of Justice.

There is no central clearinghouse for FOAA requests in Maine, but anecdotes and figures provided by some departments indicate there has been, in some cases, a sharp rise.

At DHHS, where the number of requests have only been tracked since last March, people asked for restaurant inspections, drinking water records and detailed Medicaid spending. Minnesota Public Radio asked about a former employee.

At the University of Maine System office in Bangor, FOAA requests tripled in 2012 over 2011. They wanted information on bidding processes, details about certain coaches and the salaries of all 5,000 employees.

“That’s a big ask,” spokeswoman Peggy Markson said of the latter. “It’s not one specific document.”

At the Maine State Housing Authority, requests more than quadrupled in 2012 over the previous year, from six to 35. Among the information sought: credit card receipts, emails, staff salaries and gas meter statements.

“We do attribute that to being in the news,” said spokeswoman Deborah Turcotte, referring to the high-profile ouster of the agency’s former head over questionable spending.

She estimated that agency spent 150 billable hours and 310 non-billable hours filling those requests.

At the Maine Turnpike Authority, four requests were filed in the last year: for staffing information one particular night; contract details; employees’ pay and benefits; and staff emails, W-2s and any 1099s.

Doing the asking, in that order, according to Executive Director Peter Mills and the MTA’s staff attorney: an alleged toll violator, a law firm, the Maine Heritage Policy Center and the now-infamous “CelebrationConnect,” the anonymous requester whose FOAA helped hasten emergency legislation buttoning up concealed weapons permits in Maine last month.

“At $15 per hour, it is possible to paralyze an organization with requests that require highly paid people to sort through emails and files full of publicly releasable material that is mixed up with confidential information,” said Mills. “It seems to me that the law should be amended to require the requester to be identified and the Legislature should consider a higher cap on the cost of labor to fulfill a request.”

A bill now before the Legislature would potentially up that hourly fee.

Maine State Police received thousands of FOAA requests in 2012: From media, insurance companies, crime victims, criminals, people locked in child custody and property disputes, and the list goes on, according to staff counsel Christopher Parr.

Almost any request for information made to the State Police Records Management Services Unit is considered an FOAA request, and has for at least the last 10 years. The State Police numbers do not include requests to the State Police’s Traffic Division, Police Academy or other bureaus within the State Police.

“Frankly, the personnel resources the Maine State Police has to respond to record requests is completely inadequate,” Parr said. “Simply put, we do our very best to comply with the state of Maine’s open records law.

‘On and on’

Theories behind the increase include more suspicion, the ease of filing (many are submitted via email), increased awareness about the law, financial gain (turning information around for business purposes) and, maybe, some degree of needling.

Pringle believes a small number of folks might be writing most of the requests.

“You could make 50 requests a day until you die and each one of them would be legal and each one of them would have to be responded to, each one of them would have to be fulfilled within a reasonable period of time,” he said. “You’re trusting that people won’t abuse it, because there is no sanction built into the statute.”

It’s a delicate balance, Pringle said, between free access and the cost of providing it.

The idea of putting a clamp on some number considered too many has been discussed in his committee with no consensus.

“These are fairly skeptical times, not just of government and local government, but big religion, big industry, Wall Street, big media, big medicine, you name it,” said Eric Conrad, spokesman for the Maine Municipal Association.

MMA held two “Managing Freedom of Access Requests” workshops last year. Another in Bridgton last week drew 50 people. The workshops explain the law and give towns tips for handling serial requesters. Conrad estimated 15 to 30 communities in Maine have that issue.

When Lee was the town manager in Poland, he estimated that town spent $15,000 one year fulfilling FOAA requests, mostly unbillable hours that added up.

“There are those communities who seem to have one or more people who’ve decided it’s the weapon of choice to cripple government,” he said. “You can really harass and get back at those government officials that told you you can’t have a building permit, or you can get back at the guy for getting a speeding ticket, just keep submitting FOAAs and soon you’ll see them all rattled and sweaty and red, and you got them back.”

Lee’s been the town manager in Buckfield for just over a year. In that year, he’s received one FOAA request.

Michael Doyle in Falmouth has filed an estimated 100 to 200 FOAAs in that town over the last three years. He argues he’s not costing the town money, he’s saving it.

“It goes on and on and on. There’s always one more thing they want to overpay for,” Doyle said.

Falmouth Town Manager Nathan Poore, who gave peers advice last week in Bridgton, said he can counter each savings claim. He also said he supports the FOAA law.

“On the one hand, you really need to make it accessible and affordable, and I’m a believer in the ‘free’ piece of it,” he said. “The other end of the spectrum, when there are demands from a very select few and they’re using FOAA to pursue whatever their interest is, you’re not covering all of your costs, and at that point the other taxpayers are subsidizing that other person’s cause, so where do you draw the line?”

At the Department of Environmental Protection, where FOAA requests doubled between 2008 and 2012, Warren said more requests are larger and sweeping these days. They’ve gone from “fact-finding to what now sometimes feels like fishing.”

She suspects comments from Gov. Paul LePage about environmental regulation reforms have spurred the interest.

“I think this administration is under more scrutiny than any other,” Warren said. “Yet two years in, we’re better serving businesses and maintaining environmental protections. So advocacy groups and some media are having to really dig to see if they can find a smoking gun that shows the environment is no longer our priority, and it’s simply not there.”

In his first year in office in 2011, LePage’s office received hundreds of FOAA requests. The bulk came from newspapers and other media outlets.

In 2012, there were about 23 formal requests for information and about seven, so far, for 2013.

Adrienne Bennett, LePage’s press secretary, said the FOAA law is an important resource for the public. “But if you are looking to catch government in a ‘gotcha’ kind of moment, it’s better to just ask us what you are looking for.”

Sun Journal Political Editor Scott Thistle contributed to this report.

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