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There has been plenty of debate about daylight recently. There should also be some attention paid to sunshine.
March 13-19 was Sunshine Week, an annual celebration started years ago by the American Society of News Editors that recognizes the importance of open government.
“Sunshine Week this year occurs amid the harsh reality of what can happen when a government operates behind a curtain of secrecy, as is what’s happening half a world away in Russia,” the Albuquerque Journal editorial board eloquently put it last week. “Its people are not only prevented from seeing the truth of the horrors their country is wreaking on their neighbors, but they are being fed lies and propaganda created by their ruler.”
That observation from across the country was right last week and it remains right this week. Open government should be a year-round pursuit in Maine, across the country and around the world.
We don’t need one particular week each year to remind us of the limits to Maine’s Freedom of Access Act (FOAA). That reminder, unfortunately, happens on a much more regular basis.
It happened just recently in South Portland, when the city held an invite-only meeting to discuss concerns about homeless individuals being housed at local hotels. The city did so despite a warning from an attorney for the Portland Press Herald that this would violate Maine’s FOAA, the paper reported in February.
It happened in Piscataquis County in early 2021 when county commissioners there adopted in secret a resolution against Gov. Janet Mills’ COVID-19 measures.
Maine’s Freedom of access law, at least in theory, provides public access for public proceedings and public information. But as First Amendment lawyer Sigmund Schutz discussed with the Bangor Daily News after the Piscataquis County situation, the law has been weakened by a long list of exceptions.
“Now, the right-to-know law is sort of Swiss Cheese, with many dozens of individual exceptions protecting certain discrete types of records, or discrete meeting subjects, from the public’s right to know,” Schutz said at the time.
As we’ve seen repeatedly, Maine’s freedom of access law has not stopped public entities from shielding public information or public proceedings. We would argue that it includes insufficient penalties that are not enforced enough.
In January of 2021, the Bangor Daily News filed a lawsuit against the Maine State Police after requesting written disciplinary decisions against state troopers — which are public under state law — and eventually received records that had specific misconduct details obscured. The BDN has sued jointly with the Press Herald, and a judge is expected to decide on the case soon.
Justin Silverman, the executive director of the New England First Amendment Coalition, discussed this case in a recent BDN column along with a recent Maine Freedom of Information Coalition survey that asked Maine law enforcement agencies to provide the number of complaints made against their officers since 2016. Nearly half of these agencies failed to provide any information or respond at all, despite FOAA requirements, Silverman said.
“Under the current law, there is little recourse when that data are denied other than to file a lawsuit. Most citizens (and most newsrooms) lack the time and money needed to sue agencies for records they are entitled to under FOAA,” Silverman said. “Whether we grant the state’s public records ombudsman powers to enforce the law or provide statutory incentives such as mandatory attorney fees for prevailing plaintiffs, we need better tools to protect the public’s right to know.”
We agree, better tools are needed to guarantee the public’s right to know here in Maine. That is true this week, it was true during Sunshine Week, and it has been true for quite some time.