Right to Know

(from Maine Townsman, November 1990)
by Geoff Herman, MMA Paralegal

Please Note: Despite this article’s original publication date, it remains a valid resource on the relevant subject matter. Recent cases and statutory changes are footnoted to reflect current law. (8/04)

Maine's Right to Know Law (1 MRSA 401 et seq.) was enacted for the broad purpose of allowing the general public full access to public proceedings and public records. The exceptions to this law are few and carefully defined. Since the law governs both public proceedings and public records, each of these two aspects of the law deserve special attention.

Public Proceedings

Along with a number of proceedings conducted on the level of state government, a public proceeding is defined as "the transaction of any function" by "any board, commission, agency or authority of any county, municipality, school district or any regional or other political or administrative subdivision." Public proceedings, except where exempted, must be "open to the public." 1 MRSA 402, 403.

By the use of the term "transaction of any function," it is clear that the law is not limited to board meetings or proceedings of any special level of formality. Except for the specifically exempted activities, virtually every activity or action undertaken by a municipal board or committee is subject to open review and attendance by the general public.

It should be noted that the Right to Know law governs regularly scheduled meetings of municipal boards as well as specially convened, informally convened, impromptu, or emergency meetings. The law covers meetings where the board members are going to deliberate among themselves as well as meetings where the board is going to discuss or transact business with a third party or the public at large.

The term "open to the public," means that any person may attend, whether a resident of the community or not. Furthermore, any person is expressly entitled "to make written, taped, or filmed records of the proceeding or to live broadcast the same, provided the writing, taping, filming or broadcasting does not interfere with the orderly conduct of the proceedings." 1 MRSA 404.

Notice Requirements. The law requires that the public be given notice of public proceedings whenever the public proceeding is "a meeting of a body or agency consisting of 3 or more persons." 1 MRSA 406. The phrase "3 or more persons" refers to the formal membership of the body or agency, not to the actual attendance of the board's membership at any particular proceeding. Therefore, notice is still required for a meeting of the 3-member budget committee even if only two members are able to attend, because those two members represent a quorum of the 3-member committee.

The actual type of notice to be given for a public meeting is not specifically set forward in the Right to Know law. This distinguishes the notice requirements of the Right to Know law from other sections of Maine law which do set forward specific notice requirements for specific types of meetings. For example, notice must be given of a town meeting by a posting of the warrant at least 7 days prior to the meeting (30-A MRSA 2523), and both posted and published notice of a public hearing regarding a junkyard permit application must be placed at least 7 and not more than 14 days prior to the hearing (30-A MRSA 3754). A compilation of the statutory notice requirements for some of the most commonly called public meetings has been listed in a January 1990 MAINE TOWNSMAN legal note, and MMA's Licensing/Permitting Manual includes the specific published noticing requirements for certain licensing procedures, such as for junkyard or liquor licenses. [Also see the “Right to Know Law” Information Packet on MMA’s website for a listing of specific statutory notice requirements.]

With regard to the Right to Know law, however, and unless otherwise dictated by statute or local charter or ordinance provisions, the notice requirements for public meetings, such as a planning board meeting, are only that notice of some kind be "given in ample time" and "disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned."

Therefore, although it would not be unreasonable to provide this "Right to Know" notice in the form of a newspaper article or legal notice, published notice is not required by the Right to Know law. In some instances a notice on the bulletin board of the town hall or a billboard at the local dump or transfer station, or an announcement in the town's newsletter would provide more effective notice than would a small notice in the legal notice section of the newspaper.

This broad language allows town officials to use common sense when notifying the general public of upcoming meetings. Formal, published notice, for example, is not required for regularly scheduled meetings which are held on the same day of the week or month, at the same place and at the same time. The public would be considered to have ample notice of those meetings if the town report or some other document provided ongoing notice.

On the other hand, it is especially important to provide ample public notice for any regular meeting, which must be re-scheduled for a time or place different from the normal schedule. Also, as discussed above, certain functions which are typically performed at meetings of the board of selectmen or planning board do require published notice within specific time frames, such as public hearings regarding junkyard or liquor license applications.

Notice Requirements for Emergency Meetings. The notice requirements of the Right to Know law are particularly relevant for special, emergency or impromptu meetings called by a board or committee to deal with a specific issue requiring prompt attention. Whenever the general public could not be expected to anticipate the time and location of any meeting held outside of the regular schedule, some form of public notice is still required. 1 MRSA 406 provides specific instructions for emergency meetings:

In the event of an emergency meeting, local representatives of the media shall be notified of the meeting, whenever practical, the notification to include time and location, by the same or faster means used to notify the member of the agency conducting the public proceeding.

No public meeting, no matter how hastily convened, may occur without some notification effort being made or, at a minimum, the local press invited. It is also clear that in those cases where public notice was inadequate, the board members should be able to explain why better notice could not be provided.

Unintentional Public Proceedings. Unintended meetings, also, are made illegal by the Right to Know law unless adequate notice is given and the public is allowed to attend. An unintended meeting occurs when at least a quorum of a board discusses town business in a public or private setting, such as at the hardware store or at dinner with friends, or even over the telephone. Obviously, board members are in no way legally prevented from meeting socially outside the public arena. At those occasions, however, every effort should be made to avoid discussing public business.

Agendas and the Right to Know Law. The final point to be made regarding notice requirements under the Right to Know law is that the notice need not contain an agenda of the meeting. The Right to Know law only requires that notice contain:

1. a statement that the board is meeting; and
2. the date, time and place of meeting.

Despite the fact that an agenda is not required, the notice should mention something about the topic(s) to be discussed, particularly for emergency meetings [The Maine Legislature failed to enact a proposed amendment to the Right to Know Law in 1997 that would have required an agenda to be posted]. This is an essential courtesy to the public, and it will save the board members the nuisance of numerous phone calls asking what the meeting is for.

Public Participation. The Right to Know law requires that the general public has full access to public proceedings, but full public access does not mean an unconditional right of public participation. Public hearings and the town meeting are two occasions when the public is specifically allowed to participate. At regular board meetings, however, the board members can feel free to deliberate among themselves without entertaining comment from the general public.

The board members, and especially the board's chair, have broad discretion in allowing the public to speak--some boards have no formal policy while others have written guidelines specifying the number of minutes allowed for public input or individual comment.

Inappropriate, offensive, interruptive, or repetitive comments from the public never have to be entertained by a municipal board or official.

Public Proceedings: Exceptions to Right to Know. There are two exceptions to the general rule that all municipal meetings are open to the public. One exception involves proceedings, which are altogether nonpublic. The other exception involves certain matters of discussion during public proceedings, which must be discussed outside of public scrutiny. This is accomplished by entering into executive session.

Non-public Proceedings. Non-public proceedings are proceedings, which the law requires be performed confidentially. The provision of General Assistance, for example, must be performed in complete confidentiality so that "no information relating to a person who is an applicant or recipient may be disclosed to the general public, unless expressly permitted by that person." 22 MRSA 4306. The review of a concealed weapons permit application is another example of a municipal officer's duty, which must be accomplished entirely beyond the range of public scrutiny. 25 MRSA 2006. Because of the necessarily confidential nature of these procedures, they should be carried out at non-scheduled, non-public meetings [This is in contrast to the process for making decisions on poverty abatement applications under 36 M.R.S.A. 841. Although the discussion, decision and records are confidential, the board must convene first at a public meeting and then move to go into executive session following the procedures outlined below].

Executive Sessions. The other category of legally non-public municipal activity involves matters of discussion during a public proceeding, which by its nature could cause any party (other than the members of the municipal board holding the proceeding) injury if publicly disclosed. In order to avoid such an injury, board members are allowed to go into an executive session to deliberate on the following matters and no others (see 1 MRSA 405):

1. Personnel matters concerning individual/group of employees -- but only when public discussion could damage a person's reputation or, when a person's right to privacy would be violated.

NOTE: The individual who is the subject of the executive session may request an open meeting, in which case the meeting must be open.

2. Real estate and economic development negotiations, but only when premature disclosure would hurt the town's competitive or bargaining position.

3. Discussion of labor contracts and proposals between the town and the labor negotiators, but negotiations may be held openly provided both parties agree.

4. Meetings between the town and its attorney, but only when premature disclosure of the topic would place the town at a substantial disadvantage. [Similarly, a recent amendment allows for the municipal officers (selectmen or councilors) to consult with the code enforcement officer representing that municipality in a Rule 80 K land use enforcement matter in executive session where the consultation related to that enforcement matter.]

NOTE: In order to enter into an executive session for this purpose, the municipal attorney must be present-at least to the degree of a telephone hook-up or conference call.

5. Discussion of information contained in records made confidential by statute.

There are some important procedural rules to follow in order to enter into an executive session. First, executive sessions can only be entered after a motion has been made in public session to go into executive session. The nature of the business to be discussed must be a part of that motion, although the wording of the motion, obviously, may not substantially reveal the sensitive information, which the law intends to protect by the executive session process. [P.L. 2003, c.682 requires that the motion also “include a citation of one or more sources of statutory or other authority that permits an executive session for that business.” The motion may fail to state all of the authorities, but will not violate the law so long as the motion accurately cites one or more authorities, and an inaccurate citation does not violate the law so long as authority for the executive session exists and the error was inadvertent.] The motion must carry by at least 3/5 of the members present.

In the case of a personnel matter involving an employee or official, that person has the right to an open meeting, if requested.

No other matters except the specific subject cited in the motion to enter executive session may be discussed, and an executive session is for the purpose of discussion only. No decision can be reached by the board, no motion can be made, and no final action can be decided or taken in executive session.

Finally, the purpose of the Right to Know law cannot be defeated through the misuse of executive session. Action taken or resulting from an executive session in violation of the Right to Know law is illegal, and upon complaint would be found by a court to be void and unenforceable.

As will be described below in the section on Public Records, minutes taken or any form of written or electronically recorded record or note is generally not confidential by law and would be subject to public inspection. It is therefore recommended that no physical record of executive sessions be taken.

Public Records

The Right to Know law is intended to allow full public access to both public proceedings and public records. Simply stated, municipal officials are to allow for the open inspection and/or reproduction of public records, as defined, at the request of virtually anyone.

Public records are defined in 1 MRSA 402 as:

...any written, printed or graphic matter or any mechanical or electronic data compilation for 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 of this State or any of its political subdivisions...

In short, almost any document is a public record, including any drafts, memos, notes, files, correspondence, photographs, videos, recordings or computer data. [E-mail regarding the transaction of public or governmental business also is a public record unless it is confidential by statute or protected by privilege.] It does not matter whether that material is in rough draft or final form, or whether that material has been prepared by a municipal official or received from another source. Likewise, the importance or insignificance of the information is irrelevant.

There are exceptions to the general rule that all records made or held by the town are public records.

Public Records: Exceptions to Right to Know. As is the case with public proceedings, the exceptions to the public nature of municipal records are few and well defined:

Method of Access to Public Records. As is the case with public proceedings, the right to see public records does not mean a person has the right to disrupt the town's business day, nor does it mean that the town is financially obligated to provide unlimited copies of volumes of material to anyone who asks. There are a number of rules, which govern the process for requests for public records.

When a person wants a copy of a tape-recording, that person must supply the blank tape. If the town does not have a tape recorder readily available, the person must supply the tape recorder as well.

A willful withholding of a public record in violation of the Right to Know law can expose the town to a liability for a civil violation, which carries a fine of up to $500.

Conclusion

The straightforward simplicity of Maine's Right to Know law belies its subtlety. Generally, the Right to Know law allows the general public full access to both the meetings held by municipal boards and committees and the records held by municipal officials. Not all municipal meetings, however, are public meetings. Not all matters for discussion at a public meeting should be discussed in the open, especially where the town would be put at a substantial disadvantage or individuals' reputations could be damaged.

Finally, there are a good many documents in the town's files which are confidential and should not be released to the general public. Maine's Right to Know law strikes a three-way balance between the general public's undisputed right to observe and review the conduct of public business, personal rights of privacy, and the municipal right to negotiate transactions of a contractual or legal nature in something of a competitive manner.