An Act To Implement the Recommendations of the Committee To Study Compliance with Maine's Freedom of Access Laws
Maine Legislature, Session 121, LD 1957
Amends: 1 MRSA §405, 1 MRSA §408, 29-A MRSA §2251

Legislative Document 
No. 1957 
H.P.1456 
House of Representatives, April 5, 2004 
An Act To Implement the Recommendations of the Committee To 
Study Compliance with Maine's Freedom of Access Laws 
Reported by Representative NORBERT of Portland for the Joint Standing Committee on 
Judiciary pursuant to Resolve 2003, chapter 83, section 9 and Resolve 2003, chapter 101, 
section 3. 
Printed on recycled paper 
17/~ 
/f7.1i!d£~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 1 MRSA §405, sub-§4. as enacted by PL 1975, c. 758, is 
amended to read: 
4. 
Motion contents. A motion to go into executive session 
Glia!! must indicate the precise nature of the business of the 
executive session and include a citation of one or more sources 
of statutory or other authority that permits an executive session 
for that business. 
Failure to state all authorities justifying 
the executive session does not constitute a violation of this 
subchapter if one or more of the authorities are accurately cited 
in the motion. 
An 
inaccurate citation of authority for 
an 
executive session does 
not violate this 
subchapter if _valid 
authority that permits 
the executive session exists 
and 
the 
failure to cite the valid authority was inadvertent. 
Sec. 2. 1 MRSA §408. as enacted by PL 
1975, 
c. 
758, 
1S 
repealed and the following enacted in its place: 
§408. Public records available for public inspection and copying 
1. 
Right to inspect and copy. 
Except as otherwise provided 
by statute I 
every person has the right to inspect and copy any 
public record during the regular business hours of the agency __ ~)r 
official having custody of the public record within a reasonable 
per iod of time after making a request to inspect or copy the 
public record. 
2. 
Inspection, 
translation 
and 
copying 
scheduled. 
Inspection, translation and copying may be scheduled to occur at 
such 
time 
as 
will 
not 
delay 
or 
inconvenience 
the 
re~lar 
activities of the agency or official having custody of the public 
record sought. 
3. 
Payment of costs. 
Except 
as 
otherwise specifically 
provided by law or court order I 
an agency or official having 
custody of a public record may charge fees as follows. 
A. 
The agency or official may charge a reasonable fee to 
cover the cost of copying. 
B. 
The agency or official may charge a fee to cover the 
actual cost of searching for, retrieving and compiling the 
requested public record of not more than $10 per hour after 
the first hour of staff time per request. 
Compiling the 
public record includes reviewing and redacting confidential 
information. 
Page l-LR2823(1) 
C. 
If translation is necessary, the agency or official may 
charge a fee to cover the actual cost of translation. 
D. 
An agency or official may not charge for inspection. 
4. 
Estimate. 
The agency or official shall provide to the 
requester an estimate of the 
time necessary to complete 
the 
request and of the total cost. 
If the estimate of the total cost 
is greater than $20, 
the agency or official shall inform the 
requester before proceeding. 
If the estimate of the total cost 
is greater than $100, subsection 5 applies. 
5. 
Payment in advance. 
The agency or official may require 
a requester to pay all or a portion of the estimated costs of 
translating, searching for and retrieving and providing copies of 
the public record prior to the translation, search and retrieval 
and copying of the public record if: 
A. 
The estimated total cost exceeds $100; or 
B. 
The requester has previously failed to pay a properly 
assessed fee under this chapter in a timely manner. 
6. 
Waivers. 
The agency or official may waive part or all 
of the total fee if: 
A. 
The requester is indigent; or 
B. 
Release of the public record requested is in the public 
interest because it is likely to contribute significantly to 
public 
understanding of 
the operations or activities of 
government and is not primarily in the commercial interest 
of the requester. 
Sec. 3. 1 MRSA c.13, sub·c.l·A is enacted to read: 
SUBCHAPTER I-A 
EXCEPTIONS 'l'O PUBLIC RECORDS 
§431. 
Definitions 
As 
used in this subchapter, 
unless the context otherwise 
indicates, the following terms have the following meanings. 
1. 
Public records exception. 
"Public records exception" or 
"exception" means a provision in a statute or a proposed statute 
that 
declares 
a 
record 
or 
a 
category 
of 
records 
to 
be 
confidential or otherwise not a public record for purposes of 
chapter 13, subchapter 1. 
2. 
Review committee. 
"Review committee" means the joint 
standing committee of the Legislature having jurisdiction over 
judiciary matters. 
§432. 
Exceptions to public records; review 
1. 
Recommendations. 
During the second regular session of 
each 
Legislature, 
the 
review 
committee 
shall 
report 
out 
legislation containing its recommendations concerning the repeal, 
modification and continuation of public records exceptions and 
any recommendations concerning the exception review process. 
2. 
Process of evaluation. 
According to the schedule in 
section 434, 
the 
review committee shall evaluate each public 
records exception that is scheduled for review that biennium. 
The 
review 
committee 
shall 
use 
the 
following 
criteria 
to 
determine whether each exception scheduled for review should be 
repealed, modified or remain unchanged: 
A. 
Whether a record protected by the exception still needs 
to be collected and maintained; 
B. 
The value to the agency or official or to the public in 
maintaining a record protected by the exception; 
C. 
Whether federal law requires a record to be confidential~ 
D. 
Whether the exception protects an individual's privacy 
interest and, 
if so, 
whether that interest substantially 
outweighs the public interest in the disclosure of records; 
E. 
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; 
F. 
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; 
G. 
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; 
H. 
Whether 
the 
exception 
is 
as 
narrowly 
tailored 
as 
possible; and 
I. 
Any other criteria that assist the review committee in 
determining the value of the exception as compared to the 
public's interest in the record protected by the exception. 
3. 
Assistance from committees of jurisdiction. 
The review 
committee shall 
seek assistance in evaluating public 
records 
exceptions from the joint standing committees of the Legislature 
having 
jurisdiction over 
the 
subject matter 
related to 
the 
exceptions being reviewed. 
The review committee may hold joint 
public hearings with the appropriate committees of jurisdiction. 
The review committee shall notify the appropriate committees of 
jurisdiction concerning work sessions and shall allow members of 
the appropriate committees of jurisdiction to participate in work 
sessions. 
§433. 
Schedule for review of exceptions to public records 
1. 
Scheduling guidelines. 
The joint standing committee of 
the Legislature having jurisdiction over judiciary matters shall 
review public records exceptions as follows. 
A. 
In 2006 and every 10 years thereafter, the committee 
shall review exceptions codified in: 
(1) 
Title l' 
, 
( 2 ) 
Title 2 • , 
(3) 
Title 3 • , 
( 4) 
Title 4 • , and 
{ 5} 
Title 5. 
B. 
In 2008 and every 10 years thereafter , 
the committee 
shall review exceptions codified in: 
(1) 
Title 6 ; 
{ 2 } 
Title 7 . , 
( 3 ) 
Title 8 ; 
{ 4} 
Title 9 • , 
{ 5} 
Titl~ 9.-A, 
( 6 ) 
Title 9-B; 
(7) 
Title 10; 
( 8 ) 
Title B.l 
( 9 ) 
Title 12; 
(10) 
Title 13; 
( ll) 
Title 13-B; 
(12 ) 
Title 13-C; 
( 13) 
Title 14; and 
{l4 } 
Title 15. 
C. 
In 2010 and every 10 years thereafter, the committee 
shall review exceptions codified in: 
(1) 
Title 16; 
( 2 } 
Title 17; 
( 3 } 
Title 17 -A; 
( 4} 
Title 18-A; 
( 5) 
Title 19-A; 
( 6 } 
Title 20; 
(n 
Title 20-A; 
( 8 } 
Title 2l-A; and 
( 9 } 
Title 22. 
D. 
In 2012 and every 10 years thereafter, the committee 
shall review exceptions codified in: 
(U 
Title 23; 
(2} 
Title 24; 
(3} 
Title 24-A; 
(4) 
Title~ 
(5) 
Title 26; 
(6) 
Title 27; 
(7) 
Title 28-1\; and 
(8) 
Title 29-A. 
E. 
In 2014 and every 10 years thereafter, the committee 
shall review exceptions codified in: 
( 1) 
Title 30; 
( 2) 
Title 30-A; 
( 3 ) 
Title 31; 
( 4) 
Title 32; 
( 5) 
Title 33; 
( 6 ) 
Title 34-A; 
(7) 
Title 34-B; 
( 8 ) 
Title 35-A; 
( 9 ) 
Title ,:,.c • 
¥..., , 
(10 ) 
Title 37; 
( ll) 
Title 37-A; 
( 12 ) 
Title 38; and 
(13 ) 
Title 39-A. 
§434. 
Review of pro~osed exce~tions to public records 
1. 
Procedures before legislative conunittees. 
Whenever 
a 
legislative measure containing a new public records exception is 
proposed, the joint standing committee of the Legislature having 
jurisdiction over the proposal shall hold a public hearing and 
determine the level of support for the proposal among the members 
of the committee. 
If there is support for the proposal among a 
majority of the members of the committee, 
the committee shall 
request the review committee to review and evaluate the proposal 
pursuant to subsection 2 and to report back to the committee of 
jurisdiction. 
A proposed exception may not be enacted into law 
unless review and evaluation pursuant to subsection 2 have been 
completed. 
2. 
Review and evaluation. 
Upon referral of 
a 
proposed 
public records exception from the joint standing committee of the 
Legislature having jurisdiction over the proposal, 
the 
review 
commi ttee shall conduct a review and evaluation of the proposal 
and shall report in a timely manner to the committee to which the 
proposal 
was 
referred. 
The 
review 
committee 
shall 
use 
the 
following criteria to determine whether the proposed exception 
should be enacted: 
A. 
Whether 
a 
record protected by the proposed exception 
needs to be collected and maintained; 
B. 
The value to the agency or official or to the public in 
maintaining a record protected by the proposed exception; 
C. 
Whether federal law reguires a 
record covered by the 
proposed exception to be confidential; 
D. 
Whether the proposed exception protects an individual's 
privacy 
interest 
and, 
if 
so, 
whether 
that 
interest 
substantially 
outweighs 
the 
public 
interest 
in 
the 
disclosure of records; 
_E_, __ 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; 
F. 
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: 
G. 
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: 
H. 
Whether the proposed exception is as narrowly tailored 
as possible; and 
I. 
Any other criteria that assist the review committee in 
determining the value of the proposed exception as compared 
to the public's interest in the record protected by the 
proposed exception. 
3. 
Report. 
The review committee shall report its findings 
and recommendations on whether the proposed exception should be 
enacted to the joint standing committee of the Legislature having 
jurisdiction over the proposal. 
Sec. 4. 29-A MRSA §2251. sub-§7, as amended by PL 
2003, c. 
434, §27 and affected by §37, is further amended to read: 
1. 
Report 
information. 
An 
accident report 
made 
by 
an 
investigating officer or a 48-hour report made by an operator as 
required 
by 
former 
subsection 
is 
for 
the 
purposes 
of 
statistical analysis and accident prevention. 
A report or statement contained in the accident report, or a 
48-hour report as required by former subsection 5, 
a statement 
made or testimony taken at a hearing before the Secretary of 
State held under section 2483, or a decision made as a result of 
that report, 
statement or 
testimony 
may 
not 
be 
admitted in 
evidence in any trial, civil or criminal, arising out of the 
accident. 
A report may be admissible in evidence solely to prove compliance 
with this section. 
The Chief of the State Police may disclose the date, time and 
location 
of 
the 
accident 
and 
the 
names 
and 
addresses 
of 
operators, 
owners, 
injured 
persons, 
witnesses 
and 
the 
investigating officer. 
On written request, the chief may furnish 
a photocopy of the investigating officer's report at the expense 
of the person making the request. 
The cost of furnishing a copy 
of the report is not subject to the limitations of Title-.L 
section 408, subsection 3. 
Sec. 5. Resolve 2003, c. 83, §4 is amended to read: 
Sec. 4. Committee duties. Resolved: 
That the commi ttee shall 
meet a total of not more than 4-
~ times to study state and local 
governmental compliance with Maine's freedom of access laws and 
other issues relating to citizens' access to public records and 
public proceedings. 
In examining these issues, 
the committee 
shall: 
1. 
Review and analyze the Report on Public Records Audi t, 
prepared 
by 
the 
Maine 
Freedom 
of 
Information 
Coalition 
ln 
November 2002, and the recommendations made in the report; 
2. 
Study 
what 
measures, 
governmental entities in Maine and 
if 
any, 
state 
and 
local 
in other states have taken to 
ensure their employees are knowledgeable about and comply with 
Maine's freedom of access laws or other comparable state laws; 
3. 
Investigate and 
recommend ways 
compliance 
with 
Maine's 
freedom 
of 
meaningfully improved and calculate what, 
associated with making such improvements; 
in which governmental 
access 
laws 
may 
be 
if any, costs may be 
4. 
Undertake a comprehensive inventory and review of the 
various exceptions to public access to records and proceedings 
found wi thin the freedom of access laws and identify possible 
changes to these exceptions in order to streamline Maine law and 
thereby make it more easily understood 
and complied with by 
governmental employees; 
5. 
Reconsider whether the need 
exceptions, 
as currently worded, 
is 
general interest in ensuring citizens' 
and proceedings; aBa 
for any of 
outweighed 
the statutory 
by the State's 
access to public records 
6. 
Study whether and to what extent the freedom of access 
laws may be used as a harassment tool against local governmental 
entities and what remedies may be available and appropriate to 
deter any such harassment; 
aBa-ae-i~-faF~aeF 
7. 
Recommend whether the personal home contact information 
of public employees should be confidential and not subject to 
disclosure; 
8. 
Review the fees charged by agencies and officials for 
copies of public records and determine whether a cap on fees is 
appropriate and, if so, 
recommend the level of such a cap on 
copying fees; 
9. 
Review the issues surrounding appropriate charges for 
remote electronic access to public records; 
10. 
Recommend whether the court should have discretion to 
award attorney's fees to a party denied access to records or 
proceedings and, if so, under what circumstances; 
11. 
Recommend whether the enforcement procedures of Maine's 
freedom of access 
laws, 
including the imposition of monetary 
penalties, should be modified; 
12. 
Explore options for providing staffing assistance for 
the legislative review of exceptions to the definition of "public 
records"; 
13. 
Review the issues surrounding the extent to which voice 
mail and electronic mail are public records and determine if 
statutory changes are necessary to ensure public access to public 
records; 
14. 
Review the issues surrounding the conduct of public 
proceedings through electronic means and the methods of ensuring 
public access to such proceedings; 
15. 
Review 
the 
options 
for 
standardization 
and 
clarification of 
Maine 
law 
contained 
in 
the 
report 
to 
the 
Legislature, Confidentiality of Public Records (1992), prepared 
by the Office of Policy and Legal Analysis; 
16. 
Review the efforts of the Department of the Attorney 
General to provide public access assistance to the public and 
entities covered by Maine's freedom of access laws; and 
17. 
Review any other public access issues that may improve 
compliance with Maine's freedom of access laws and enhance public 
access to public proceedings; and be it further 
Sec. 6. Resolve 2003. c. 83. §7-A is enacted to read: 
Sec. 7-A. Funding for 2nd year of study. Resolved: 
That any 
unexpended balance of funds originally budgeted to support the 
work 
of 
the 
committee 
that 
remain 
within 
the 
Legislature's 
Miscellaneous Studies account must be used for the same purposes; 
and be it further 
Sec. 7. Resolve 2003. c. 83, §9 is amended to read: 
Sec. 9. Initial report. Resolved: 
That 
the 
commi ttee shall 
submit 
a 
an 
initial 
report 
that 
includes 
its 
findings 
and 
recommendations including suggested legislation for presentation 
to the Joint Standing Committee on Judiciary and the Legislative 
Council by December 3, 2003. 
Following receipt and review of the 
~ort, the Joint Standing Committee on Judiciary may report out 
a bill to the Second Regular Session of the 121st Legislature to 
implement 
the 
committee's 
recommendations. 
If 
the 
committee 
requires a limited extension of time to conclude its study and to 
make its report, it mm'--PJllil-Y~-tQ __ the Legislative Council, whicl1 
may grant the extension; and be it further 
Sec. 8. Resolve 2003, c. 83. §9-A is enacted to read: 
Sec.9-A. Final report. Resoh.'~d~_ That, not later than November 
3, 2004, the committee shall submit a final report that includes 
its 
findings 
and 
recommendations, 
including 
suggested 
legislation, for presentation to the First Regular Session of the 
Page lO-LR2823(1) 
122nd 
Legislature. 
The 
committee 
is 
authorized 
to 
submit 
legislation related to its report for introduction to the First 
Regular 
Session 
of 
the 
122nd 
Legislature 
at 
the 
time 
of 
submission of its report; and be it further 
Sec. 9. Codification of public records exceptions. 
The Office of 
Policy and Legal Analysis 
and the Office of the Revisor of 
Statutes shall produce 
a bill for 
introduction in the First 
Regular Session of the l22nd Legislature that lists in the Maine 
Revised Statutes, Title 1, chapter 13, subchapter I-A all the 
public records exceptions that exist elsewhere in the statutes, 
including cross-references to those exceptions. 
Sec. 10. Retroactivity. 
Those sections of this Act that amend 
Resolve 
2003, 
chapter 
83, 
section 9 
and enact Resolve 
2003, 
chapter 83, section 9-A apply retroactively to December 3, 2003. 
SUMMARY 
This bill is the report of the Joint Standing Committee on 
Judiciary pursuant to Resolve 2003, chapter 83, which established 
the Committee to Study Compliance with Maine's Freedom of Access 
Laws. 
The study committee submitted its report and presented 
recommended legislation. 
1. 
This bill amends the executive session law to require 
that 
the 
motion 
to 
enter 
executive 
session must 
include 
a 
ci tation of one or more sources of statutory or other authority 
permitting the executive session for the nature of the business 
stated in the motion. 
A motion that includes the citation of statutory or other 
authority for entering executive session but does not state all 
possible 
authorities 
for 
the 
executive 
session 
does 
not 
constitute a violation of the statute if the authority stated was 
accurate and covered the precise nature of the business of the 
executive session. 
Similarly, if the authority cited in the motion is not 
accurate, it is not a violation of the statute if there is valid 
authority supporting the executive session for that business and 
the failure to state the accurate authority was inadvertent. 
2. 
The current law on the public's right to inspect and 
copy public records at the location of the records or the record 
custodian is repealed and replaced to clarify certain provisions 
and to ensure reasonable costs for copies of public records. 
Page ll-LR2823(1) 
New language is added to clarify that the agency or official 
must provide the public record requested within a 
reasonable 
period of time after the request. 
Many factors may affect the 
amount of time necessary to produce the record for inspection or 
a copy of the record, including the complexity of the request, 
the type of record sought and the resources of the agency to 
store and retrieve public records. 
In all cases, however, a copy 
of the public record must be provided or the public record itself 
must be provided for inspection within a 
reasonable period of 
time after the 
request, 
taking all appropriate factors 
into 
account. 
As 
provided 
in 
current 
law, 
inspection, 
translation into usable form may be scheduled to 
regular activities of the agency or official will 
or inconvenienced. 
Current 
law 
concerning translating 
records 
usable by the requester is retained and clarified. 
official 
may 
require 
payment 
in 
advance 
of 
translation under certain circumstances. 
copying 
and 
occur when the 
not be delayed 
into 
a 
form 
The agency or 
the 
costs 
of 
This bill addresses 
the 
fees 
that 
may 
be 
charged 
for 
fulfilling a request for public records, including copying costs 
as well as fees for searching for and retrieving records. 
These 
provisions apply unless another law or court order applies to the 
fees that may be charged for that request. 
The law is clarified 
to provide that only a reasonable fee may be charged for copies 
of public records. 
The issue of whether to cap copying fees is 
added to the duties of the Committee to Study Compliance with 
Maine's Freedom of Access Laws, which this bill extends for an 
additional year. 
New to the law are provisions governing the recoupment of 
costs 
of 
searching for, 
retrieving 
and 
compiling 
records 
to 
satisfy a request. 
After the first hour of staff time to search 
for, 
retrieve and compile records, 
the agency or official may 
charge 
up to 
$10 per hour 
for 
such staff services for each 
request. 
Compiling a public record includes reviewing the record 
and redacting confidential information. 
An agency providing copies is not required to charge copying 
costs. 
An agency that does charge for copies may waive all or 
part of the regular charge if the requester is indigent or if 
release of the record is not primarily in the commercial interest 
of the requester 
and the 
release is in the public interest 
because it is 
likely to 
contribute 
significantly to 
public 
understanding of 
the 
operations or activities of government. 
This waiver standard is modeled on the waiver standard that is 
part of the federal Freedom of Information Act. 
3. 
There are many statutes that except from the definition 
of 
"public 
records" 
specific 
records 
created, 
received 
or 
maintained by governmental entities. 
This bill requires 
the 
Office of Policy and Legal Analysis and the Office of the Revisor 
of Statutes to produce a bill that lists in the freedom of access 
laws all the public records exceptions that exist in the Maine 
Revised Statutes. 
This bill requires that provisions excepting records from 
the definition of "public records" be reviewed to determine if 
the exceptions should be continued, 
modified or 
repealed. 
A 
cyclical review process is established for a legislative review 
committee, the joint standing committee of the Legislature having 
jurisdiction over judiciary matters, to review and evaluate all 
the identified exceptions at least once every 10 years. 
Criteria 
are established for the review and evaluation. 
The legislative 
committees 
of 
jurisdiction 
will 
have 
an 
opportunity 
to 
participate in the review and evaluation process. 
The review 
committee is authorized to report out legislation that carries 
out the review committee's recommendations to continue, modify or 
repeal each exception reviewed and evaluated. 
4. 
Resolve 
2003, 
chapter 
is 
amended 
to 
extend the 
reporting date of the Committee to Study Compliance with Maine's 
Freedom of Access 
Laws 
to November 3, 
2004. 
Four additional 
meetings are authorized. 
The unexpended balance of the money 
originally appropriated for the study committee will be used to 
fund 
the completion of the study. 
The duties o[ 
the 
study 
committee are expanded to include several issues identified by 
the study committee. 
The issue of whether public employees' home 
contact information should be kept confidential, as proposed by 
Legislative Document 1727, is added as an issue for the study 
committee to review. 
FISCAL NOTE REQUIRED 
(See attached) 
}'iscal Detail and Notes 
Approved: 03/24/04 ~ac... 
Office of Fiscal and Program Review 
LD xxxx - New Draft 
An Act To Implement the Recommendations of the Committee To Study 
Compliance with Maine's Freedom of Access Laws 
LR 2823(01) 
Fiscal Note for New Draft 
Committee: Judiciary 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - All funds 
Minor revenue increase - All funds 
Additional costs resulting from the proposed requirements of this legislation for the timely inspection, translation and 
copying of public reoords can be absorbed by the impacted departments and agencies utilizing existing budgeted 
resources. The Legislature can review proposed exceptions to public records within available resources. 
Implementation of specific fees for the provision of records may increase revenues collected. The amount can not be 
determined but is expected to be minor because many agencies already charge such fees. 
The Committee to Study Compliance with Maine's Freedom of Access La\vs had an unexpended balance of $2,809.24 
as of 3/1/04. It is anticipated that the committee has sufficient funds to meet four additional times as authorized by 
this legislation. 
LR2823( 1) - Fiscal Note - Page 1 of 1