FOAA Changes Now in Effect

Several changes to Maine’s Freedom of Access Act quietly went into effect on October 18, 2021. Passed in the waning days of the Legislature’s special session, L.D. 1345 and 1346 expanded mandatory FOAA training requirement for municipal officials, modified the Right to Know Advisory Committee membership and responsibilities, and limited the fees that officials and agencies may charge for compiling FOAA responses.

Upcoming FOAA trainings will need added seating. Under L.D. 1345, an expanded list of municipal officers and officials must complete a mandatory FOAA training within 120 days of assuming their duties. The newly added officials include municipal clerks, managers, administrators, code enforcement officers, and their deputies; planning board members; and superintendents, assistant superintendents, and school board members of school administrative units. As a result, these officials must complete the training and file a certificate of completion as required under Title 1, section 412. The law isn’t clear about how it pertains to sitting officials; to be safe, we recommend that all officials receive this training within 120 days from the law’s effective date.

There are also changes to the FOAA’s permitted staff time and per-page copy fees. L.D. 1346 increased the maximum hourly charge for staff time spent compiling responsive records from $15 to $25. However, it also increased the “no charge” period for staff time from one hour to two hours. In addition, L.D. 1345 limited the per-page copy fee for black and white copies of records to $0.10 and entirely prohibits per-page copy fees for records provided electronically (note, we think it is defensible to charge where printing is required to fulfill a request, even if the ultimate production is sent electronically). While L.D. 1346 explicitly authorized agencies to retain any fees charged under the FOAA, these other changes are likely to reduce the total amount of fees municipalities and agencies receive for FOAA responses. For example, due to the increased “no charge” period for staff time, responses requiring less than three and a half hours of staff time to complete will incur a lower fee than under the previous system. These modifications may ultimately reduce the costs borne by individuals who request records under FOAA but will also reduce the ability of municipalities and agencies to defray staff and material costs incurred to produce those records.

These changes to the FOAA may require updates to employee manuals, trainings, and general practices. Please contact us for additional information or guidance on this topic.