State and municipal governments are constantly making decisions that impact the lives of citizens. Commonly, the reasoning behind those decisions can be unclear. Further, problems with the process involved in making those decisions could weaken their validity. It is difficult to point out decision-making flaws when citizens are kept in the dark. Governments are commonly held accountable through open government laws that allow citizens to participate and remain informed. Here in Maine, we have the Freedom of Access Act (FOAA) to provide the public access to government information.
If you’re concerned about a decision being made by a state agency or municipal body, FOAA can be important tool for getting better insight into the decision-making process of state or municipal government bodies.
Briefly, FOAA provides that all “Public Records” are available for inspection by the public. Public Record is defined as, “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 an agency or public official…” 1 M.R.S. § 402(3). (The full text of FOAA can be found here.)
The above definition of Public Record is extremely broad. Essentially anything in possession of a public official is subject to review unless it is explicitly excluded. This may sound straightforward, however, one key issue that arises from this definition is: who is considered a public official? For example, what if a Maine agency hires a contractor to study an issue of interest to you? Is this contractor a public official?
The Maine Supreme Court has used a four-factor test to decide whether someone is a public official under FOAA. (Moore v. Abbott) These four factors are: “(1) Whether the entity is performing a governmental function; (2) Whether the funding of the entity is governmental; (3) The extent of governmental involvement or control; and (4) Whether the entity was created by private or legislative action.” Further, “[t]he courts do not require that an entity conform to all factors, but that the factors be considered and weighed.” (Town of Burlington v. Hosp. Admin. Dist. No. 1)
The Law Court’s test can leave a great deal of room for argument as to when records are in the hands of someone who is not obviously a public official. If you need assistance getting information regarding government decisions, an attorney can help make sure your request is properly written to acquire the information you need. For example, if your request is over broad, you could end up receiving a lot more information than you need. Alternatively, a narrow request could leave out important information of interest. Consulting an attorney can help you prevent both of these issues and ensure the government follows all of FOAA’s procedures.