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Freedom of Access Act FAQ

Copyright: Copyright 2018 All rights reserved.

How do I contact the Public Access Ombudsman?

Thu, 13 Dec 2012 13:58:24 EST

Call the Office of the Attorney General at (207) 626-8577 or get more information online at: Your">">Your Right to Know: Maine's Freedom of Access Act

What is the Public Access Ombudsman?

Thu, 13 Dec 2012 13:55:14 EST

The Legislature created a public access ombudsman position to review complaints about compliance with the FOAA and attempt to mediate their resolution, as well as answer calls from the public, media, public agencies and officials about the requirements of the law. The ombudsman is also responsible for providing educational materials about the law and preparing advisory opinions. The ombudsman works closely with the Right to Know Advisory Committee in monitoring new developments and considering improvements to the law.

Is the agency or body required to make the record or minutes of a public proceeding available to the public?

Wed, 17 Oct 2012 13:20:05 EDT

Yes. Any legally required record or minutes of a public proceeding must be made promptly and shall be open to public inspection. In addition, every agency is required to make a written record of any decision that involves conditional approval or denial of any application, license, certificate or other type of permit and to make those decisions publicly available, 1">">1 M.R.S.A. § §403, 407;">">407; 5">">5 M.R.S.A. § 9059 (3).

Is the public body or agency required to keep running minutes or a record of a public proceeding?

Wed, 17 Oct 2012 13:20:18 EDT

There is no requirement under the Freedom of Access Act that a public body or agency keep running minutes during all public proceedings. The Act does require, however, that public bodies and agencies keep a written record of every decision that involves the conditional approval or denial of an application, license, certificate or permit, and every decision that involves the dismissal or refusal to renew the contract of any public official, employee or appointee. 1">">1 M.R.S.A. § 407 (1) & (2).

If the public proceeding is an "adjudicatory proceeding" as defined in the Maine Administrative Procedure Act, the agency is required to compile a record that complies with statutory specifications, including a recording in a form susceptible of transcription. 5">">5 M.R.S.A. §§ 8002 (1) and 9059.">">9059.

Do members of the public have a right to speak at public meetings under the Freedom of Access Act?

Wed, 17 Oct 2012 13:18:40 EDT

The Freedom of Access Act does not require that an opportunity for public participation be provided at open meetings, although many public bodies or agencies choose to permit public participation. In those instances, the public body or agency can adopt reasonable rules to ensure meetings are conducted in a fair and orderly manner. For example, the body or agency can set a rule that requires the same amount of time be afforded to each person that wants to speak.

Can I record a public proceeding?

Wed, 17 Oct 2012 13:15:26 EDT

Yes. The Freedom of Access Act allows individuals to make written, taped or filmed records of a public proceeding, or to broadcast the proceedings live, provided the action does not interfere with the orderly conduct of the proceedings. The body or agency holding the proceeding can make reasonable rules or regulations to govern these activities so long as the rules or regulations do not defeat the purpose of the Act. 1">">1 M.R.S.A. § 404.

Can members of a body communicate with one another by email outside of a public proceeding?

Wed, 17 Oct 2012 13:15:48 EDT

There is no legal prohibition against email communication between members of a public body outside of a public proceeding. However, email communication among a quorum of the members of a body used as a substitute for deliberations or decisions which should properly take place at a public meeting may likely be considered a "meeting" in violation of the statutory requirements for open meetings and public notice. "Public proceedings" are defined in part as "the transactions of any functions affecting any or all citizens of the State…" 1">">1 MRSA § 402. The underlying purpose of the Freedom of Access law is that public proceedings be conducted openly and that deliberations and actions be taken openly; clandestine meetings should not be used to defeat the purpose of the law. 1">">1 MRSA § 401. Public proceedings must be conducted in public and any person must be permitted to attend and observe the body's proceeding although executive sessions are permitted under certain circumstances. 1">">1 MRSA § 403. In addition, public notice must be given for a public proceeding if the proceeding is a meeting of a body or agency consisting of 3 or more persons. 1">">1 MRSA § 406.

Members of a body should refrain from the use of email as a substitute for deliberating or deciding substantive matters properly confined to public proceedings. Email is permissible to communicate with other members about non-substantive matters such as scheduling meetings, developing agendas and disseminating information and reports.

Email is a public record (likely even when sent using a member's personal computer) if it contains information relating to the transaction of public or governmental business unless the information is designated as confidential or excepted from the definition of a public record. 1">">1 MRSA § 402, sub-§ 3. As a result, members of a body should be aware that all emails and email attachments relating to the member's participation are likely public records subject to public inspection under the Freedom of Access laws.

How do elected officials certify they have completed the training?

Wed, 17 Oct 2012 13:19:24 EDT

After completing the training, elected officials are required to make a written or electronic record attesting that the training has been completed. The record, which will be available to the public, must be kept by the elected official or filed with the public entity to which the official was elected. A sample">">sample training completion form is available (This file requires the free Adobe">">Adobe Reader).

Do training courses need to by certified by the Right to Know Advisory Committee?

Wed, 17 Oct 2012 13:18:43 EDT

No. Training courses do not need the approval of the Right to Know Advisory Committee, or any other State agency.

What if I believe a public body or agency conducted improper business during an executive session?

Wed, 17 Oct 2012 13:21:11 EDT

Upon learning of any such action, any person may appeal to any Superior Court in the State. If the court determines the body or agency acted illegally, the action that was taken by the body or agency will be declared to be null and void and the officials responsible will be subject to the penalties provided in the Act. 1">">1 M.R.S.A. § 409 (2). Superior Courts Directory:

Can the body or agency conduct all of its business during an executive session?

Wed, 17 Oct 2012 13:16:00 EDT

Generally, no. The content of deliberations during executive sessions is restricted to the matters listed in the Freedom of Access Act, such as: discussions regarding the suspension or expulsion of a student; certain employment actions; the acquisition, use or disposition of public property; consultations between a body and its attorney concerning its legal rights and responsibilities or pending litigation; and discussion of documents that are confidential by statute. In addition, any body or agency subject to the Freedom of Access Act is prohibited from giving final approval to any ordinances, orders, rules, resolutions, regulations, contracts, appointments or other official action in an executive session. 1">">1 M.R.S.A. § 405 (2) & (6).

Can public bodies or agencies hold a closed meeting?

Wed, 17 Oct 2012 13:15:55 EDT

Yes. Public bodies or agencies are permitted, subject to certain procedural conditions, to hold closed "executive sessions" on specified subjects after a public recorded vote of 3/5 of the members present and voting. 1">">1 M.R.S.A. § 405 (1)-(5).

Can a public body or agency hold an emergency meeting?

Wed, 17 Oct 2012 13:14:45 EDT

Yes. Public notice of an emergency meeting must be provided to local representatives of the media, whenever practicable. The notice must include the time and location of the meeting and be provided by the same (or faster) means used to notify the members of the public body or agency conducting the public proceeding. 1">">1 MRSA § 406. The requirements that the meeting be open to the public, that any person be permitted to attend and that records or minutes of the meeting be made and open for public inspection still apply. 1">">1 MRSA § 403.

What kind of notice of public proceedings does the Freedom of Access Act require?

Wed, 17 Oct 2012 13:21:36 EDT

Public notice must be given in ample time to allow public attendance and must be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency. 1">">1 M.R.S.A. § 406.

When does a meeting or gathering of members of a public body or agency require public notice?

Wed, 17 Oct 2012 13:22:05 EDT

Public notice is required of all public proceedings if the proceedings are a meeting of a body or agency consisting of 3 or more persons. 1">">1 MRSA § 406.