HP0748, LD 1087, item 1, An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Response Deadlines and Appeals

An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Response Deadlines and Appeals

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 1 MRSA §408-A, sub-§4, as amended by PL 2013, c. 350, §2, is further amended to read:

4. Refusals; denials. If a body or an agency or official having custody or control of any public record refuses permission to inspect or copy or abstract a public record, the body or agency or official shall provide written notice of the denial, stating the reason for the denial or the expectation that the request will be denied in full or in part following a review, within 5 working days of the receipt of the request for inspection or copying. Failure to comply with this subsection is considered failure to allow inspection or copying and is subject to appeal as provided in section 409.

Sec. 2. 1 MRSA §409, sub-§1, as repealed and replaced by PL 2013, c. 350, §3, is amended to read:

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 may appeal the refusal, denial or failure within 30 calendar days of the receipt of the written notice of refusal, denial or failure to any the Superior Court within the State for the county where the person resides or the agency has its principal office as a trial de novo. The agency or official shall file an answer a statement of position explaining the basis for denial within 14 calendar days of service of the appeal. If a court, after a trial de novo 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.

Sec. 3. 1 MRSA §413, sub-§1, as enacted by PL 2011, c. 662, §8, is amended to read:

1. Designation; responsibility. Each agency, county, municipality, school administrative unit and regional or other political subdivision shall designate an existing employee as its public access officer to serve as the contact person for that agency, county, municipality, school administrative unit and regional or other political subdivision with regard to requests for public records under this subchapter. The public access officer is responsible for ensuring that each public record request is acknowledged within a reasonable period of time 5 working days of receiving the request and that a good faith estimate of when the response to the request will be complete is provided according to section 408-A. The public access officer shall serve as a resource within the agency, county, municipality, school administrative unit and regional or other political subdivision concerning freedom of access questions and compliance.

summary

This bill amends the Freedom of Access Act to make clear that an agency's or official's written notice of denial in response to a request to copy or inspect records may be a statement that the agency or official expects to deny the request in full or in part, but that decision can be made only after reviewing the records subject to the request. The agency or official is required to provide the written response within 5 days of the receipt of the request.

The bill clarifies the procedures for an appeal from a denial of a request to inspect or copy public records. Current law allows the appeal to be filed in any Superior Court; this bill requires the appeal to be filed in the Superior Court for the county in which either the requestor lives or in which the agency has its principal office. Instead of filing an answer to the complaint, the agency or official may file a more informal statement of position explaining the basis for denial within 14 days of the service of the appeal. This bill eliminates the need for a de novo trial and instead requires the Superior Court to conduct a review de novo, taking whatever testimony or other evidence the court determines necessary. The basis for the decision, whether the agency's or official's refusal, denial or failure was not for just and proper cause, is not changed from current law.

The bill also amends the laws governing public access officers by specifically requiring that a request for public records be acknowledged within 5 working days of the receipt of the request. This is consistent with the current acknowledgement deadline in the Maine Revised Statutes, Title 1, section 408-A, subsection 3.

HP0748 LD 1087	Session - 127th Maine Legislature		LR 1906 Item 1
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