2017 was a busy year for those who are concerned about open access to government documents and information on a national level, and certainly on a state level here in Maine.
Several of the most important freedom of access issues in 2017 (and continuing into 2018) involved proposed changes to practices in the judicial system that the Maine Freedom of Information Coalition (MFOIC) felt would limit access to court information, particularly to information available online.
In thinking about access to information online, it is important to keep in mind that Maine is a very big state geographically – over 400 miles from one end to the other – with a small population of about 1.2 million people, many of whom live in sparsely populated areas. For years the state has been attempting to bring better Internet availability to people living in those more remote areas. Proposed changes to limit judicial records availability would, in the opinion of the MFOIC, run counter to the spirit of extending more information opportunities to the people of Maine, whether they live in urban or rural areas.
MFOIC had filed an Amicus Brief in the case of In re Emma. MFOIC asserted that proposals made that would redact information in online Probate court records that was not redacted in paper records available in state court houses was bad practice, unnecessary, and counter to enabling Maine people to follow the proceedings of government.
MFOIC’s position was then, and remains, that a public record is a public record – period. There is no justification for limiting access to public records simply because they are online. Such a practice would adversely affect people who are only able to access information online. That limitation essentially considers those people of lesser importance than those who can afford to take time off work, are not house bound, have access to private transportation, and can afford the cost of driving to a state court site to access information.
A similar issue, but on a much broader scale, has arisen in the case of the Report of the Task Force on Transparency and Privacy in Court Records. Several years ago, the Judicial Branch asked the Legislature to fund a $14 million effort to computerize and put online court records which the Legislature approved. That process is underway. Just how this online system will work is now under discussion.
To aid the Judicial Branch in deciding what type and how much court information would be available online, the Judiciary convened a “Task Force on Transparency and Privacy in Court Records.” That group held several meetings and produced a majority Report of the Task Force on Transparency and Privacy in Court Records which, in the view of MFOIC (as well as at least one of the Task Force members), severely limits access to key court filings in civil matters to plaintiffs, defendants, and their attorneys. Decisions and dockets would be available to anyone but not filings and other documents. Those materials would be viewable at state court houses for those who had the luxury of time and resources to travel to a state court house.
In MFOIC’s view, as in the Probate Court case, a public document is a public document whether it is on paper or electronic. The Task Force report asserted that many court filings in civil cases included personal information that could compromise plaintiff ’s or defendant’s privacy if it were put online. The Report appealed to “Privacy by Obscurity” as a justification for limiting online access, a principle that in MFOIC’s opinion is neither a legal doctrine nor an effective tactic in the digital age.
MFOIC as a group, and several Board members personally, sent letters opposing the report’s conclusions, and MFOIC plans to testify in opposition to the report’s conclusions when a public hearing is scheduled sometime in 2018.
While these Judicial Branch matters occupied a good bit of MFOIC’s energy, there were a number of other matters MFOIC devoted attention to in 2017:
• MFOIC opposed and testified against LD 1658 “An Act to Prohibit the Dissemination of Criminal History Record Information Databases Maintained by or for the State Bureau of Identification.” Without going into detail here, this was a case in which an agency wanted to cut off the possibility of any potential entity asking for and making public an entire state database because it might contain information that could adversely affect someone’s personal privacy. MFOIC wrote and testified in opposition to the bill which did not get out of committee.
• The Legislative Council of the State Legislature proposed to cease archiving audio recordings of committee hearings and sessions. MFOIC opposed that proposal. The Council dropped that idea in the face of opposition but set up a committee to study the possibility of copyrighting the recordings. (It appears that some legislators were not excited about the idea of hearing something they had said used in future campaigns by opponents or used by interest groups for their own purposes, hence control by copyright.)
• MFOIC opposed L.D. 1432 “An Act to Implement the Recommendations of the Right to Know Advisory Committee Concerning Advance Payment of Costs for Public Records Requests”. MFOIC viewed this as an effort to discourage people from filing Freedom of Access Act requests. The bill passed nonetheless.
• One of MFOIC’s Board members, Sig Schutz, undertook a survey of 49 state agencies to gather information on whether they had policies on access to public records and, if so, what those policies were. A number of agencies responded, many did not. The results will be available at mfoic.org.
2017 was, indeed, a busy year for the Maine Freedom of Information Coalition. Though Jefferson probably never really said that “constant vigilance is the price of liberty,” he would probably at least agree with the idea. So does MFOIC. We are expecting to be pretty busy in 2018.