Public Records Requests - 2022

Training for: Legal Notes

The “open records” portion of Maine’s Freedom of Access Act (FOAA) has been revised repeatedly in recent years, so we thought a summary of current public record request requirements (1 M.R.S. § 408-A) would be helpful.

Public Access Officer. Since 2012, every municipality has been required to designate an existing employee to serve as its public access officer to manage public records requests (see “Public Access Officers,” Maine Townsman, “Legal Notes,” July 2015).

Making requests. A public records request need not be made in person or in writing. A requester can be asked to put the request writing but cannot be required to or be denied because the request is not in writing. Anyone can make a records request, and it need not cite the law or state specifically that it is a public records request provided it is clear that the request seeks records.

Acknowledgement; time and cost estimate. The custodian of a requested record must acknowledge receipt of the request within five working days. Within a reasonable time thereafter the custodian must also provide a good faith, non-binding estimate of the response time and cost, if any. The deadline for fulfilling the request, however, remains “within a reasonable time” – a flexible standard that takes into account the scope of the request, the location of the records, staff resources and similar variables. The custodian may ask for clarification about which record(s) are being requested.

Inspections; making and mailing copies. A requester can either inspect and copy public records in the office of the record’s custodian during regular business hours or request the custodian to make and mail copies to the requester. The custodian can schedule inspections so they do not delay or inconvenience the custodian’s regular activities.

Electronically stored records. Access to electronically stored records must be provided either as a printed document or in the electronic medium in which they are stored, at the option of the requester, except that access to a computer file is not required if the custodian is unable to separate or prevent disclosure of confidential information in that file. There is no requirement to provide access to a computer terminal or software. Nor must electronically stored records be provided in a different electronic medium or format.

Costs. The requester is liable for the cost of (1) mailing, (2) converting a record into a comprehensible form, (3) staff time up to $25 per hour after the first two hours spent searching for, retrieving and compiling requested records, and (4) reasonable copying costs, provided that the copying fee for a standard 8.5-inch by 11-inch black and white photocopy is limited to 10 cents per page and a per page fee for copies provided electronically is prohibited. For purposes of calculating staff time, all cumulative staff time should be counted, regardless of how many staffers are involved. Finally, the requester may be required to pay all costs associated with a public records request before the records are provided to the requester. 

Notice; advance payment; waiver. If estimated costs exceed $30, the custodian must notify the requester before proceeding to compile the records. If estimated costs exceed $100 or the requester has previously failed to pay FOAA costs, the requester must pay in advance. The custodian may, but is not required to, waive all or part of applicable costs if the requester is indigent or release of the requested record is in the public interest.

No requirement to create a record. There is no require

The “open records” portion of Maine’s Freedom of Access Act (FOAA) has been revised repeatedly in recent years, so we thought a summary of current public record request requirements (1 M.R.S. § 408-A) would be helpful.

Public Access Officer. Since 2012, every municipality has been required to designate an existing employee to serve as its public access officer to manage public records requests (see “Public Access Officers,” Maine Townsman, “Legal Notes,” July 2015).

Making requests. A public records request need not be made in person or in writing. A requester can be asked to put the request writing but cannot be required to or be denied because the request is not in writing. Anyone can make a records request, and it need not cite the law or state specifically that it is a public records request provided it is clear that the request seeks records.

Acknowledgement; time and cost estimate. The custodian of a requested record must acknowledge receipt of the request within five working days. Within a reasonable time thereafter the custodian must also provide a good faith, non-binding estimate of the response time and cost, if any. The deadline for fulfilling the request, however, remains “within a reasonable time” – a flexible standard that takes into account the scope of the request, the location of the records, staff resources and similar variables. The custodian may ask for clarification about which record(s) are being requested.

Inspections; making and mailing copies. A requester can either inspect and copy public records in the office of the record’s custodian during regular business hours or request the custodian to make and mail copies to the requester. The custodian can schedule inspections so they do not delay or inconvenience the custodian’s regular activities.

Electronically stored records. Access to electronically stored records must be provided either as a printed document or in the electronic medium in which they are stored, at the option of the requester, except that access to a computer file is not required if the custodian is unable to separate or prevent disclosure of confidential information in that file. There is no requirement to provide access to a computer terminal or software. Nor must electronically stored records be provided in a different electronic medium or format.

Costs. The requester is liable for the cost of (1) mailing, (2) converting a record into a comprehensible form, (3) staff time up to $25 per hour after the first two hours spent searching for, retrieving and compiling requested records, and (4) reasonable copying costs, provided that the copying fee for a standard 8.5-inch by 11-inch black and white photocopy is limited to 10 cents per page and a per page fee for copies provided electronically is prohibited. For purposes of calculating staff time, all cumulative staff time should be counted, regardless of how many staffers are involved. Finally, the requester may be required to pay all costs associated with a public records request before the records are provided to the requester. 

Notice; advance payment; waiver. If estimated costs exceed $30, the custodian must notify the requester before proceeding to compile the records. If estimated costs exceed $100 or the requester has previously failed to pay FOAA costs, the requester must pay in advance. The custodian may, but is not required to, waive all or part of applicable costs if the requester is indigent or release of the requested record is in the public interest.

No requirement to create a record. There is no requirement that an agency or official answer questions orally or in writing, nor does the law require officials to create a record that does not already exist.

For more on Maine’s FOAA, see MMA Legal Services’ “Right to Know Information Packet,” available free to members at www.memun.org. (S.F.P.) n