Results mixed on compliance with FOI law

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The latest survey of compliance with Maine’s open records law has found that police departments are doing a better job in granting access to public documents but that the performance of school districts has slumped.

Municipal offices targeted in the Maine Freedom of Information Coalition’s May 3 audit performed about the same as they did during its first audit in 2002.

While the follow-up survey shows some improvement, there are still statewide compliance problems, said Mal Leary, president of the FOI coalition. Leary’s stories for Capitol News Service appear in the Bangor Daily News.

Among the documents requested by auditors were school crisis response plans and policies regarding police chases. The choice of those documents raised confidentiality questions and prompted criticism of the way the audit was conducted.

Seventy percent of surveyors at police stations were allowed to view the chase policy, and 65 percent at school offices were shown the crisis response plans. As in all cases, some auditors were asked to show identification or explain why they wanted the information.

Towns and cities turned over lists of undischarged tax liens to 59 percent of auditors, while access to 2005 legal bills was granted 65 percent of the time.

The Maine FOI audits in 2006 and 2002, similar to those carried out in other states, were aimed at determining whether anyone in Maine can walk into a town office, school district office or police department and review a public record.

Judy Meyer, who oversaw both of the coalition’s FOI audits, said it’s important to ensure that public records are open to all Maine residents, not just reporters. And she said the coalition plans to conduct future audits as well.

“The more we can keep this in the public eye, keep it in our day-to-day conversation, the better off we all are,” she said.

Harry Pringle, an attorney representing the Maine School Management Association, faulted auditors for demanding that crisis response plans be produced immediately even though clerks and secretaries needed time to find out whether the open records law allows an exception for such documents.

“The methodology that was used in the audit is just completely flawed, and the result of that is the conclusions the report draws are meaningless, if not totally misleading,” Pringle said.

Pringle suggested that the request for crisis plans at a time of heightened security concerns after the Columbine shootings was an attempt “to create news on a slow news day just before July Fourth” rather than to conduct a fair test.

Meyer, who is managing editor of the Sun Journal of Lewiston, said the document was chosen because parents would likely be interested, and the secretary of state says it’s not confidential.

Although the FOI coalition said auditors were asked only for photocopies of the title pages, Pringle said he received calls from superintendents who said that was not the case and asked what portion of the documents they were required to release.

As in the 2002 audit, some of the targeted offices received a warning. The Cumberland town manager sent an e-mail alert on the afternoon of audit day to notify his counterparts around the state that an FOI “sting operation” was under way.

The latest audit, smaller in scope than the earlier one, involved 50 volunteers, some of whom were members of the press. They visited 89 municipal offices, 40 police departments and 44 school superintendents’ offices. In addition, requests for copies of the three latest business-related e-mails sent to the municipal manager or administrator were mailed to 270 municipal offices.

The Maine Freedom of Access law was enacted in 1959 to ensure that public business is conducted openly. It states that everyone has the right to inspect and copy any public record during regular business hours, except as otherwise provided by statute. Since then, the Legislature has passed more than 500 exceptions to the law.

The coalition’s 2002 audit prompted lawmakers to update and strengthen the law. The coalition also said there has been a push to educate government officials and employees about the law’s requirements.

Maine is not alone in conducting a follow-up audit, said Charles N. Davis, executive director of the Freedom of Information Center at the University of Missouri School of Journalism.

“We’re starting to see round two of FOI audits. We’ve had a few that are on the second go-round,” he said. “Without measuring again, we can’t really tell if the lessons of the initial audit have taken hold.”

Davis said the results of a second audit are usually better because “the most willful offenders the first time out have made some efforts to improve.”

A follow-up audit also keeps freedom of access in the public eye, he said, noting that open records laws benefit the ordinary citizen.

“If professional journalists face these problems, what do citizens face?” he asked. “They’re not paid to be relentless, they’re not promoted for being aggressive.”

The report acknowledged that Maine’s small-town character will lead to situations where auditors are denied access to documents because offices are closed. But it said there was no excuse for requests to be denied because supervisors were unavailable to grant permission.

While Maine law has been updated since the 2002 audit to limit photocopy fees to “reasonable” costs, a surveyor was charged $12.50 to view documents in Old Orchard Beach.

The coalition, which posted its findings for review on Monday, made three immediate recommendations based on the audit:

. Associations representing municipal officials, school superintendents and police chiefs continue efforts to provide training and ensure that members abide by the open records law.

. Administrators in municipal and school district offices follow the lead of police departments in adopting written policies on how to properly respond to citizen requests.

. State departments adopt uniform policies on fees and processing FOI requests.

Meyer said she had hoped for a better compliance rate overall but was pleased that police departments, which had performed the poorest in 2002, showed improvement.

Perhaps most striking, she said, was that auditors at police stations reported none of the intimidation they encountered the last time.

“I think that’s a fantastic stride. It shows that they’re taking their training seriously,” said Meyer, who expressed hope that municipalities and school districts would address the FOI issue with the same zeal as police.

The 270 mailed requests for municipal e-mail messages drew 166 responses.

No town declined to forward the messages because it did not understand them to be public records, the coalition said, “but the fact that 39 percent of all requests were ignored is a disturbing outcome.”

In Mount Vernon, the town manager showed he’s not immune to spam. He said his latest three e-mails were spam messages for sexual aids, and the town clerk in Island Falls said the e-mails “are not information I care to copy.”