An Act to Amend the Freedom of Access Act and Related Provisions
Maine Legislature, Session 131, LD 1699
Committee: State and Local Government
Sponsors: ANDREWS
Amends: 1 MRSA §402, 1 MRSA §408-A, 1 MRSA §409, 5 MRSA §200-I, 5 MRSA §1985

Legislative Document
No. 1699
H.P. 1088
House of Representatives, April 18, 2023
An Act to Amend the Freedom of Access Act and Related Provisions
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative ANDREWS of Paris.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  1 MRSA §402, sub-§2, ¶H is enacted to read:
H.  The board of directors of a nonprofit organization that qualifies as a tax-exempt 
organization under 26 United States Code, Section 501(c)(3) if the organization 
receives more than 50% of its annual revenue from federal, state or municipal funding 
sources.
Sec. 2.  1 MRSA §402, sub-§3, as amended by PL 2019, c. 667, Pt. A, §§1 to 3 and 
Pt. B, §§1 to 4, is further amended to read:
3.  Public records.  The term "public records" means any written, printed or graphic 
matter or any mechanical or electronic data compilation from which information can be 
obtained, directly or after translation into a form susceptible of visual or aural 
comprehension, that is in the possession or custody of a nonprofit organization described 
in subsection 2, paragraph H and has been received or prepared for use in connection with 
the transaction of that organization's activities or contains information relating to the 
transaction of that organization’s activities; is in the possession or custody of an agency or 
public official of this State or any of its political subdivisions, and has been received or 
prepared for use in connection with the transaction of public or governmental business or 
contains information relating to the transaction of public or governmental business; or is in 
the possession or custody of an association, the membership of which is composed 
exclusively of one or more of any of these entities, and has been received or prepared for 
use in connection with the transaction of public or governmental business or contains 
information relating to the transaction of public or governmental business, except that the 
following are not considered public records:
A.  Records that have been designated confidential by statute;
B.  Records that would be within the scope of a privilege against discovery or use as 
evidence recognized by the courts of this State in civil or criminal trials if the records 
or inspection thereof were sought in the course of a court proceeding;
C.  Legislative papers and reports until signed and publicly distributed in accordance 
with legislative rules, and records, working papers, drafts and interoffice and 
intraoffice memoranda used or maintained by any Legislator, legislative agency or 
legislative employee to prepare proposed Senate or House papers or reports for 
consideration by the Legislature or any of its committees during the legislative session 
or sessions in which the papers or reports are prepared or considered or to which the 
paper or report is carried over;
C-1.  Information contained in a communication between a constituent and an elected 
official if the information:
(1)  Is of a personal nature, consisting of:
(a)  An individual's medical information of any kind, including information 
pertaining to diagnosis or treatment of mental or emotional disorders;
(b)  Credit or financial information;
(c)  Information pertaining to the personal history, general character or conduct 
of the constituent or any member of the constituent's immediate family; or
(d)  Complaints, charges of misconduct, replies to complaints or charges of 
misconduct or memoranda or other materials pertaining to disciplinary action; 
or
(2)  Would be confidential if it were in the possession of another public agency or 
official;
D.  Material prepared for and used specifically and exclusively in preparation for 
negotiations, including the development of bargaining proposals to be made and the 
analysis of proposals received, by a public employer in collective bargaining with its 
employees and their designated representatives;
E.  Records, working papers, interoffice and intraoffice memoranda used by or 
prepared for faculty and administrative committees of the Maine Maritime Academy, 
the Maine Community College System and the University of Maine System when the 
subject matter is confidential or otherwise protected from disclosure by statute, other 
law, legal precedent or privilege recognized by the courts of this State. The provisions 
of this paragraph do not apply to the boards of trustees and the committees and 
subcommittees of those boards, which are referred to in subsection 2, paragraph B;
F.  Records that would be confidential if they were in the possession or custody of an 
agency or public official of the State or any of its political or administrative 
subdivisions are confidential if those records are in the possession of an association, 
the membership of which is composed exclusively of one or more political or 
administrative subdivisions of the State; of boards, commissions, agencies or 
authorities of any such subdivisions; of a nonprofit organization described in 
subsection 2, paragraph H; or of any combination of any of these entities;
G.  Materials related to the development of positions on legislation or materials that 
are related to insurance or insurance-like protection or services which are in the 
possession of an association, the membership of which is composed exclusively of one 
or more political or administrative subdivisions of the State; of boards, commissions, 
agencies or authorities of any such subdivisions; or of any combination of any of these 
entities;
H.  Medical records and reports of municipal ambulance and rescue units and other 
emergency medical service units, except that such records and reports must be available 
upon request to law enforcement officers investigating criminal conduct;
I.  Juvenile records and reports of municipal fire departments regarding the 
investigation and family background of a juvenile fire setter;
J.  Working papers, including records, drafts and interoffice and intraoffice 
memoranda, used or maintained by any advisory organization covered by subsection 
2, paragraph F, or any member or staff of that organization during the existence of the 
advisory organization.  Working papers are public records if distributed in a public 
meeting of the advisory organization;
K.  Personally identifying information concerning minors that is obtained or 
maintained by a municipality in providing recreational or nonmandatory educational 
programs or services.  This paragraph does not apply to records governed by Title 
20‑A, section 6001 and does not supersede Title 20‑A, section 6001‑A;
L.  Records describing security plans, security procedures or risk assessments prepared 
specifically for the purpose of preventing or preparing for acts of terrorism, but only to 
the extent that release of information contained in the record could reasonably be 
expected to jeopardize the physical safety of government personnel or the public.  
Information contained in records covered by this paragraph may be disclosed to the 
Legislature or, in the case of a political or administrative subdivision, to municipal 
officials or board members under conditions that protect the information from further 
disclosure.  For purposes of this paragraph, "terrorism" means conduct that is designed 
to cause serious bodily injury or substantial risk of bodily injury to multiple persons, 
substantial damage to multiple structures whether occupied or unoccupied or 
substantial physical damage sufficient to disrupt the normal functioning of a critical 
infrastructure;
M.  Records or information describing the architecture, design, access authentication, 
encryption or security of information technology infrastructure, systems and software, 
including records or information maintained to ensure government operations and 
technology continuity and to facilitate disaster recovery.  Records or information 
covered by this paragraph may be disclosed to the Legislature or, in the case of a 
political or administrative subdivision, to municipal officials or board members under 
conditions that protect the information from further disclosure;
N.  Social security numbers;
O.  Personal contact information concerning public employees or concerning the 
officers, directors or employees of a nonprofit organization described in subsection 2, 
paragraph H, except when that information is public pursuant to other law.  For the 
purposes of this paragraph:
(1)  "Personal contact information" means personal address, telephone number, 
facsimile number, e-mail address, cellular telephone number, pager number and 
username, password and uniform resource locator for a personal social media 
account as defined in Title 26, section 615, subsection 4; and
(2)  "Public employee" means an employee as defined in Title 14, section 8102, 
subsection 1, except that "public employee" does not include elected officials;
P.  Geographic information regarding recreational trails that are located on private land 
that are authorized voluntarily as such by the landowner with no public deed or 
guaranteed right of public access, unless the landowner authorizes the release of the 
information;
Q.  Security plans, staffing plans, security procedures, architectural drawings or risk 
assessments prepared for emergency events that are prepared for or by or kept in the 
custody of the Department of Corrections or a county jail if there is a reasonable 
possibility that public release or inspection of the records would endanger the life or 
physical safety of any individual or disclose security plans and procedures not 
generally known by the general public.  Information contained in records covered by 
this paragraph may be disclosed to state and county officials if necessary to carry out 
the duties of the officials or the Department of Corrections under conditions that protect 
the information from further disclosure;
S.  E-mail addresses obtained by a political subdivision of the State for the sole purpose 
of disseminating noninteractive notifications, updates and cancellations that are issued 
from the political subdivision or its elected officers to an individual or individuals that 
request or regularly accept these noninteractive communications;
T.  Records describing research for the development of processing techniques for 
fisheries, aquaculture and seafood processing or the design and operation of a 
depuration plant in the possession of the Department of Marine Resources;
U.  Records provided by a railroad company describing hazardous materials 
transported by the railroad company in this State, the routes of hazardous materials 
shipments and the frequency of hazardous materials operations on those routes that are 
in the possession of a state or local emergency management entity or law enforcement 
agency, fire department or other first responder, except that records related to a 
discharge of hazardous materials transported by a railroad company that poses a threat 
to public health, safety and welfare are subject to public disclosure after that discharge.  
For the purposes of this paragraph, "hazardous material" has the same meaning as set 
forth in 49 Code of Federal Regulations, Section 105.5; and
V.  Participant application materials and other personal information obtained or 
maintained by a municipality or other public entity in administering a community well-
being check program, except that a participant's personal information, including health 
information, may be made available to first responders only as necessary to implement 
the program. For the purposes of this paragraph, "community well-being check 
program" means a voluntary program that involves daily, or regular, contact with a 
participant and, when contact cannot be established, sends first responders to the 
participant's residence to check on the participant's well-being.
Sec. 3.  1 MRSA §402, sub-§5-A is enacted to read:
5-A.  Public Access Ombudsman.  "Public Access Ombudsman" means the Public 
Access Ombudsman appointed by the Attorney General pursuant to Title 5, section 200-I, 
subsection 1.
Sec. 4.  1 MRSA §408-A, sub-§3, as amended by PL 2015, c. 317, §1, is further 
amended to read:
3.  Acknowledgment; clarification; time estimate and compliance deadline; cost 
estimate.  The agency or official having custody or control of a public record shall 
acknowledge receipt of a request made according to this section within 5 working days of 
receiving the request and may request clarification concerning which public record or 
public records are being requested.  Within a reasonable time of receiving the request, the 
agency or official shall provide a good faith, nonbinding estimate of the time, which may 
not exceed 60 days unless an extension of time has been granted under subsection 3-A, 
within which the agency or official will comply with the request, as well as a cost estimate 
as provided in subsection 9.  The agency or official shall make a good faith effort to fully 
respond to the request within the estimated time.  For purposes of this subsection, the date 
a request is received is the date a sufficient description of the public record is received by 
the agency or official at the office responsible for maintaining the public record.  An agency 
or official that receives a request for a public record that is maintained by that agency but 
is not maintained by the office that received the request shall forward the request to the 
office of the agency or official that maintains the record, without willful delay, and shall 
notify the requester that the request has been forwarded and that the office to which the 
request has been forwarded will acknowledge receipt and provide the time and cost 
estimates required by this subsection within 5 working days of receiving the request.
Sec. 5.  1 MRSA §408-A, sub-§3-A is enacted to read:
3-A.  Deadline to fully respond; extension.  A body or an agency or an official having 
custody or control of a public record shall fully respond to a request made according to this 
section within 60 days of the date the request is received unless the Public Access 
Ombudsman grants an extension of the deadline under this subsection, an action for 
protection is pending under subsection 4-A or the court has established a date by which the 
records must be provided to the requesting party under subsection 4-A.  For purposes of 
this subsection, the date a request is received is the date a sufficient description of the public 
record is received by the body, agency or official at the office responsible for maintaining 
the public record as described in subsection 3. If a body or an agency or official having 
custody or control of any public record does not in good faith believe that it can fully 
respond to the request within 60 days, it must file a request for extension with the Public 
Access Ombudsman within 30 working days of receiving the request.  
A. The request for extension must include the following information:
(1) The terms of the request for a public record and any modifications agreed to by 
the party requesting the public record;
(2) A statement of facts that demonstrates why the body, agency or official is not 
able to fully respond to the request for a public record within 60 days and a 
proposed timeline for fully responding to the request;
(3) A description of the efforts made by the body, agency or official to discuss 
possible modifications of the request for a public record that would reduce the time 
it would take to fully respond to the request; and
(4) A statement that the body, agency or official has provided by mail a copy of 
the request for an extension under this subsection to the party requesting the public 
record.
B. If the Public Access Ombudsman finds that the body, agency or official has 
demonstrated good cause to extend the deadline for fully responding to the request for 
a public record, the Public Access Ombudsman shall issue a written decision 
establishing the date by which the records must be provided to the requesting party. If 
the Public Access Ombudsman finds that the body, agency or official has not 
demonstrated good cause to extend the deadline for fully responding to the request, the 
Public Access Ombudsman shall issue a written decision directing the body, agency or 
official to fully respond to the request within 60 days of the date the request was 
received.
C. A written decision of the Public Access Ombudsman under this subsection is final 
and may not be appealed.
Sec. 6.  1 MRSA §408-A, sub-§7, ¶C is enacted to read:
C.  In responding to a request under this section, an agency or official in the executive 
branch or legislative branch shall comply with the requirements of Title 5, section 
1985.
Sec. 7.  1 MRSA §408-A, sub-§8, ¶G is enacted to read:
G.  The total fee charged by an agency or official other than a school administrative 
unit in response to a single request for a public record under this section may not exceed 
$500.   The total fee charged by a school administrative unit in response to all requests 
for public records submitted by the same person in a single calendar year may not 
exceed $100.
Sec. 8.  1 MRSA §409, as amended by PL 2015, c. 249, §2, is further amended to 
read:
§409.  Appeals
1.  Records.  Any person aggrieved by a refusal or denial to inspect or copy a record 
or, the failure to allow the inspection or copying of a record under section 408‑A or the 
failure to fully respond to a record request within the time required under section 408-A, 
subsection 3-A may appeal the refusal, denial or failure within 30 calendar days of the 
receipt of the written notice of refusal, denial or failure to the Superior Court within the 
State for the county where the person resides or the agency has its principal office.  The 
agency or official shall file a statement of position explaining the basis for refusal, failure 
or denial within 14 calendar days of service of the appeal.  If a court, after a review, with 
taking of testimony and other evidence as determined necessary, determines such refusal, 
denial or failure was not for just and proper cause, the court shall enter an order for 
disclosure.  Appeals may be advanced on the docket and receive priority over other cases 
when the court determines that the interests of justice so require.
2.  Actions.  If any body or agency approves any ordinances, orders, rules, resolutions, 
regulations, contracts, appointments or other official action in an executive session, this 
action is illegal and the officials responsible are subject to the penalties hereinafter 
provided. Upon learning of any such action, any person may appeal to any Superior Court 
in the State.  If a court, after a trial de novo, determines this action was taken illegally in 
an executive session, it shall enter an order providing for the action to be null and void.  
Appeals may be advanced on the docket and receive priority over other cases when the 
court determines that the interests of justice so require.
3.  Proceedings not exclusive.  The proceedings authorized by this section are not 
exclusive of any other civil remedy provided by law.
4.  Attorney’s fees.  In an appeal under subsection 1 or 2, the court may award 
reasonable attorney’s fees and litigation expenses costs to the substantially prevailing 
plaintiff who appealed the refusal, denial or failure under subsection 1 or the illegal action 
under subsection 2 if the court determines that the refusal, denial or failure or the illegal 
action was committed in bad faith.  Attorney’s fees and litigation costs may not be awarded 
to or against a federally recognized Indian tribe.
This subsection applies to appeals under subsection 1 or 2 filed on or after January 1, 2010.
Sec. 9.  5 MRSA §200-I, sub-§2, ¶E, as amended by PL 2013, c. 229, §1, is further 
amended to read:
E.  Make recommendations concerning ways to improve public access to public records 
and proceedings; and
Sec. 10.  5 MRSA §200-I, sub-§2, ¶F, as enacted by PL 2013, c. 229, §2, is 
amended to read:
F.  Coordinate with the state agency public access officers the compilation of data 
through the development of a uniform log to facilitate record keeping and annual 
reporting of the number of requests for information, the average response time and the 
costs of processing requests.; and
Sec. 11.  5 MRSA §200-I, sub-§2, ¶G is enacted to read:
G.  Issue written decisions pursuant to Title 1, section 408-A, subsection 3-A on 
requests for extensions of the deadline under the Freedom of Access Act to fully 
respond to requests for public records.
Sec. 12.  5 MRSA §1985, as enacted by PL 2009, c. 165, §1, is amended to read:
§1985.  Response to requests for public records
Each Except as provided in subsection 1, each agency that collects and uses data or 
information is responsible for responding to requests for public data or information hosted 
on state-owned computer devices.  The office shall assist the agency in searching for and 
identifying all data and information stored within the office and in retrieving and compiling 
the data and information.
1.  Electronic communications stored on state-owned computer systems.  An 
agency or official of the executive branch or the legislative branch of State Government 
that receives a request under the Freedom of Access Act for a public record that is an 
electronic communication stored on a state-owned computer system shall notify the office 
of the request and cooperate with the office in responding to the request.  The office shall 
search for and identify each electronic communication stored on the computer system that 
is responsive to the request and retrieve and compile those electronic communications for 
the agency or official that received the request.
SUMMARY
This bill makes the following changes to the Freedom of Access Act and related 
provisions of law.
1.  It provides that the transactions of any functions affecting any or all citizens of the 
State by the board of directors of an organization that qualifies as a tax-exempt organization 
under Section 501(c)(3) of the United States Internal Revenue Code of 1986 and that 
receives more than 50% of its annual revenue from federal, state or municipal funding 
sources are public proceedings and that the records of such organizations are public records 
under the Act.
2. It requires that a body, agency or official subject to the Act fully respond to a public 
records request within 60 calendar days and establishes a process through which the body, 
agency or official may request that the Public Access Ombudsman grant an extension of 
this deadline.  A written decision by the ombudsman to extend the deadline must be based 
on good cause shown and may not be appealed.
3. It requires an agency or official of the executive branch or the legislative branch to 
notify the Department of Administrative and Financial Services, Office of Information 
Technology of and cooperate with the office in responding to any request for a public 
record that is an electronic communication stored on a state-owned computer system.  The 
office is required to search for and identify each electronic communication stored on the 
computer system that is responsive to the request and compile those electronic 
communications for the agency or official that received the request.
4. It provides that the total fee charged by an agency or official other than a school 
administrative unit in response to a single public records request may not exceed $500 and 
that the total fee charged by a school administrative unit in response to all requests for 
public records submitted by the same person in a single calendar year may not exceed $100.