Maine’s FOAA Review Process – First in the Nation
Enacted by the state legislature at the unanimous recommendation of the Right To Know Study Commission that studied Maine’s public records law, Maine’s process is a first in the nation law that requires a through review of every proposed exception to make sure it is in the public interest.
Maine’s law starts with the broad statement that every public record is presumed to be available for the public to read or copy, unless the legislature has specifically exempted that record from the law.
What is unique about the process adopted by lawmakers is that there are a specific set of public interest criteria that are applied to every proposed exception by the legislature’s Judiciary Committee before the measure can be considered by the full legislature. No measure is exempt from the review.
The first of these questions is fundamental and asks whether the record protected by the proposed exception needs to be collected and maintained at all.
The second criterion ask whether the value to the agency or official or to the public in maintaining a record protected by the proposed exception is warranted. If the record is useful or necessary to the agency or official, the question of its value to the public must also be asked.
The third of the criterion go to federal law that preempts state law. If federal law requires a record be confidential, state law should do the same.
The fourth criterion seeks to balance the privacy interests of an individual with the public interest. The panel that drafted the law supported the idea that the records be as accessible as possible without unnecessarily invading an individual’s privacy. It requires lawmakers balance the important privacy interest with the requirement that the individual’s interest must substantially outweigh the public interest in disclosure of the record. According to the law, equal weight or slightly more import in favor of the individual’s privacy interest is not sufficient to support the proposed exception.
The fifth criterion requires lawmakers weigh whether public disclosure puts a business at a competitive disadvantage and, if so, whether that business’s interest substantially outweighs the public interest in the disclosure of records.
The sixth criterion seeks to protect the public as a whole from harm by requiring lawmakers weigh whether public disclosure compromises the position of a public body in negotiations and, if so, whether that public body’s interest substantially outweighs the public interest in the disclosure of records.
The seventh criterion requires lawmakers to weigh whether public disclosure jeopardizes the safety of a member of the public or the public in general and, if so, whether that safety interest substantially outweighs the public interest in the disclosure of records.
The eighth criterion requires any proposed exception to be as narrowly tailored as possible.
The process also allows members of the Judiciary Committee to develop other criterion that may help them decide whether an exception is warranted.
The committee can propose changes to any proposed legislation to meet the requirements of the law.
In addition to the review of proposed exceptions, the law requires all of the more than 600 existing exceptions to the law be reviewed using the criterion over a ten year period.
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