By Judith Meyer
There is a man living in Falmouth, Maine, who is perceived as a singular nuisance to public officials.
Michael Doyle, who has lived in this toney coastal community for more than 30 years, submits a lot of public records requests under Maine’s Freedom of Access Act. Enough requests that Mr. Doyle has uncovered significant overspending that had previously escaped official notice, and so many that the town has instituted special rules when responding to his requests.
Last year, Mr. Doyle submitted a request to the town for access to all email addresses contained in a database used by town officials to send transitory communications — newsletters and the like — to townspeople. He got the list. He also misused the town’s website, which was considered an outrageous overreach of a citizen’s access to municipal information, and further irritates public officials by regularly posting original and fictionalized tales of municipal wrongdoing on his personal blog.
The “problem” of Mr. Doyle was brought to the attention of the Maine Municipal Association which, in turn, brought the issue to Maine’s Right to Know Advisory Committee, which advises the Legislature on public access and which has oversight authority to recommend legislation.
That committee discussed the town’s concern that Doyle was able to obtain its email database because FOAA does not expressly protect that information, and it considered a request from MMA (a request supported in concept by the Maine School Management Association) to draft legislation to repair this oversight. After months of discussion, the RTK Advisory Committee opted — instead — to ask the state’s newly appointed ombudsman to research whether access to email databases was a widespread problem across the state or whether it was specific to the town of Falmouth. The committee felt, overwhelmingly so, that if the database problem was specific to one town that drafting legislation that would impact the entire state was an overcorrection.
The ombudsman agreed to do this research and report back to the RTK Advisory Committee in 2013, and the matter appeared settled. That is, until Rep. Mary Nelson, D-Falmouth, submitted legislation early this year — LD 104 — asking Maine’s Judiciary Committee to create a new exemption for all email addresses “obtained by a political subdivision of the state for the sole purpose of disseminating noninteractive notifications, updates, cancellations, newsletters” etc.
Mr. Doyle argues that the bill would give government a greater voice than citizens in reaching residents on issues of public importance because towns would have access to master email lists maintained by public officials and citizens would not. But, the wider objection among Maine’s FOAA advocates is that Maine’s Legislature does not differentiate between street addresses and email addresses in matters of access, and despite years of discussions, the RTK Advisory Committee has not yet been convinced to shield addresses of people who have regular contact with public officials and vice versa.
The concern that is always raised is that shielding addresses of those in contact with public officials can also shield identities and we can lose the ability to track who has contact with public officials and why, influential and not. Creating that shield of influence would dangerously ding the transparency that Maine officials and citizens all say we want (until or unless we find transparency a nuisance, that is).
What we have here is a cry to deal with a nuisance without proof that, beyond Falmouth, there is a widespread and legitimate problem.
LD 104 gets worse.
The bill contains language that would permit government entities to charge “actual cost” of retrieval and compilation of public records requests, a cost that could be a great deal over Maine’s current $15 per hour allowance. For instance, a town that compiles a FOAA request may now charge $60 for five hours of work (the first hour is free in Maine). Under the proposed change, that charge could be more than $275 (in some towns) if the fee was figured on the actual cost of the responder’s salary.
At some point, the cost of access to records becomes a barrier to access if the requestor cannot afford the fee. In Maine that’s particularly true for many people who live at or below the poverty level, and it’s inherently unfair to knowingly block access to the poor while granting access to the wealthy.
Last year, the RTK Advisory Committee felt so strongly about this that it added language allowing Judiciary to consider cost as a barrier to access when the committee considers existing and proposed exemptions to FOAA. LD 104 attempts to circumnavigate that protection barely a year after it was added to statute, which is not in the public’s best interest.