PART TWO OF A THREE-PART SERIES

When Alvah Sulloway complained about officials in his town holding closed-door meetings nearly 30 years ago, he quickly earned a reputation as a troublemaker.

“I was pretty unpopular,” said the now retired lawyer, one of 24 Kittery residents who in 1974 successfully challenged the town’s lack of compliance with Maine’s then rarely tested Freedom of Access Act.

“There was a general feeling, promoted by some in the town, that [I] was costing them a lot of money in legal fees,” said Sulloway, 87, in a telephone interview from a retirement home in nearby York. “It was controversial, but ultimately beneficial, I think most people would say.”

The Kittery case – generally considered a landmark ruling – helped resolve some of the issues surrounding private meetings. But for a public that wants to keep tabs on its government, more doors have closed than opened during the act’s sometimes tumultuous 43-year history.

Introduced in the Legislature in 1959 by Senate Majority Leader Allan Woodcock, R-Bangor, what became known as Maine’s “Right to Know Law” allows the public to attend government meetings and view government documents, unless otherwise specified in state statutes.

For more than a decade, the Maine law, passed seven years before the federal Freedom of Information Act, went relatively unchanged and unchallenged.

But since that time, there have emerged dozens of court cases – many brought by the state’s major media outlets – testing which agencies must abide by the act and under what circumstances.

Legislated loopholes

While the courts most often have favored public access over secrecy, the Legislature has added more than 100 loopholes at the behest of special interest groups, specifying various agencies, some of whose records are now exempt.

In some instances, successful court challenges against secretive officials have quickly prompted legislation designed to block public access, most often concerning the release of personnel or proprietary information.

“We bring a claim, win the case, and in the next session they go crying to the Legislature to create an exception,” said Jonathan Piper, a Portland attorney who represents the Maine Press Association. “Maybe its time to throw all those exceptions out and start over again.”

One of the more notable cases arose in 1988 when the Maine Supreme Judicial Court ruled in favor of the Bangor Daily News, in its lawsuit against the city of Bangor for failing to release the names of finalists for the job of police chief.

Within months of the victory, the Legislature had passed a bill allowing the identities of applicants for government jobs to be kept confidential, arguing that releasing the names could discourage many qualified individuals from applying.

The Bangor case resulted in just one of an ever growing list of exceptions which now allow state agencies – ranging from the Department of Economic and Community Development to the Workers’ Compensation Board – to withhold information that was previously available to the public. Even the ownership and locations of ginseng plantings are classified as confidential under a 1995 statutory change.

Night and day

The current law is a far cry form Woodcock’s original legislation, which allowed for only a few exceptions, according to University of Maine media law professor Lyombe Eko.

“They’re like night and day,” Eko said, adding that he fears the Maine law is headed the way of those in some European countries, where journalists are prevented from reporting the names of those accused of a crime until they are duly convicted. “We’re being asphyxiated slowly but surely, and the ultimate loser is the public.”

Lawyers in the Attorney General’s Office are quick to note that the Maine law’s federal equivalent has far more exceptions.

Furthermore, officials say some of the state law’s exceptions – particularly the long-standing allowance for boards to meet in executive sessions for specific purposes including personnel matters and legal strategy – are actually in the public’s best interest.

Bangor City Solicitor Norman Heitmann contends that the city would be derelict in its duty to taxpayers if negotiations involving union contracts or land deals – both confidential under the act – were done in full public view.

Not necessarily so, said the law’s earliest and most outspoken proponents – including Brooks Hamilton, a University of Maine journalism professor, and James Russell Wiggins, editor and publisher of the Ellsworth American. Now deceased, both men argued for broad interpretation of the law and an end to the executive session in all but the rarest of circumstances.

“I’m afraid I have a visceral reaction that under-the-table talks … could lend themselves too easily to chicanery,” Hamilton, a former Kennebec Journal editor, wrote in a 1984 letter to an attorney representing the town of Bar Harbor, where councilors at the time were considering a local “right to know” ordinance. “Experience has shown us that when the climate for secrecy exists, those who would steal or cheat will then be attracted to the place where they can do so and hide it.”

No teeth

By most accounts, town officials don’t often willfully break the access act, which to the chagrin of those trying to defend it contains little in the way of punishment other than a rarely assessed $500 fine or a court-ordered reversal of a government action.

“Basically there’s no penalty … and that makes it all but ineffective,” said Lewiston Sun Journal editorial page editor Judith Meyer.

Officials with the Attorney General’s Office concede that they have seldom pursued the civil fine in Freedom of Access cases, most of which involve complaints against small municipalities where officials often comply with the law once informed of its provisions.

“We’re often talking about three selectmen and someone who gets upset,” said Chuck Dow, spokesman for the Attorney General’s Office. “But there is a penalty … and it will be sought in the appropriate cases where we have someone that is uncooperative.”

While Justice David Roberts admonished the Kittery Town Council back in 1974, he refused to overturn any of its decisions on matters that he ruled were improperly discussed in private. Roberts also declined Alvah Sulloway’s request to prohibit town officials from holding future executive sessions, saying the court was “persuaded by the evidence in the record of the good intentions of the members of the board of appeals and of the Town Council.”

Longtime town attorney Duncan McEachern, in a recent interview, concurred that the Kittery town boards weren’t willfully trying to hide anything in the closed-door meetings that prompted Sulloway’s lawsuit.

“I don’t think we were any different from any other community at the time,” said McEachern, now 61, reflecting on the weeklong trial. “I always thought it was a beneficial case for the community … and from that point forward, the town was very careful to comply.”

While Sulloway acknowledged that the town’s breaches of the law were procedural and relatively minor, he stressed the need for vigilance on the part of both the public and the press to defend the act.

“My case had a beneficial effect at the time, but I don’t know how long that kind of relief lasts,” he said. “I do know that it’s as important now as it was then.”

On the Net:

Maine Freedom of Information Coalition: http:///www.mfoic.org

Freedom of Information Center: http:///foi.missouri.edu/index.html