You win some, you loose some: Law Court Rejects Moore FOAA Appeal, Reaffirms Importance of Freedom of Access

MCLU News Release
June 17, 2008

PORTLAND – In a sharply divided 3-2 decision today, the Maine Law Court rejected an appeal by Author James Moore who was seeking public disclosure of the records of an advisory group created by Maine’s Attorney General. The MCLU filed an amicus curiae brief in the case in support of Mr. Moore. The advisory group at issue was comprised of a former judge and two prominent Maine attorneys. They claimed that that the group was private and was not a government entity. Therefore, they argued, the notes and records of its investigation into possible prosecutorial misconduct were not subject to disclosure under Maine’s Freedom of Access Act. The Law Court agreed, while nonetheless affirming that disclosure is appropriate for entities performing the “functional equivalent” of government work.

“The Law Court today reminded us of the important role that public access plays in the operation of democracy,” said MCLU Legal Director Zachary Heiden. “We are disappointed that the Court refused to order disclosure in this case, but both the Majority and the Dissenters agreed that public disclosure is appropriate when private individuals act as the functional equivalent of the government.”

Justice Donald Alexander authored the majority opinion for the Court, joined by Justices Warren Silver and Ellen Gorman. They concluded that in this case, the taskforce was not the functional equivalent of the government, in part because it was constituted by the Attorney General rather than the legislature and because its members were not paid.

Justice Jon Levy dissented, joined by Justice Andrew Mead. He noted that the Legislature has directed that the Freedom of Access Act “shall be liberally construed and applied to promote its underlying purposes and policies” and that “Numerous boards, commissions, and committees of this State receive no financial compensation for their public service but may be subject to the Freedom of Access Act.”

“Broad public access to the workings of government is one of the most important safeguards to ensure honesty and efficiency,” said MCLU Cooperating Attorney Sigmund Schutz, a partner with the law firm of Preti, Flaherty, Belliveau & Pachios. “The legislature has provided for such access with Maine’s Freedom of Access Act, and we will continue to argue that the statute should be interpreted expansively, and exceptions narrowly.”

The MCLU’s amicus curiae brief arguing in favor of full disclosure of the records was supported by the Maine Press Association and the Maine Freedom of Information Coalition.

Access law comes of age

Kennebec Journal Staff Writer

A state senator who leads the state’s open-records committee says “good progress” has been made in establishing a transparent government.

Sen. Barry Hobbins, D-Saco, chairman of the Right To Know Advisory Committee, said the 123rd Legislature was the committee’s “first real venture into recommending legislation.”

Legislation that passed includes items that clarify the release of state employees’ public information, appoint an ombudsman and implement a law stating all elected officials must certify they are familiar with Maine’s open-records laws.

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