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The Freedom of Access Act. The following entities are among those covered by the Freedom of Access Act: the Legislature of Maine, the Board of Trustees of the University of Maine System, the Board of Trustees of the Maine Maritime Academy, the Board of Trustees of the Maine Community College System, and any of these entities’ related committees and subcommittees; any board, commission, agency or authority of any county, municipality, school district or any regional or other political or administrative subdivision.
Because public meetings presumably are held to aid in the conduct of the people’s business, they must be open to the public except as exempted by law or by Section 405 of the Freedom of Access Act. Further, public notice must be given in ample time to allow people to attend. If an emergency meeting is called, the organization calling it must notify the local media by the same or faster means used to notify the members of the organization.
Closed meetings, or those held in executive sessions, must meet very specific conditions. Members of the agency must take a public vote prior to adjourning into an executive session and three-fifths of the members present must vote in favor of the session.
Closed sessions are allowed for discussion of certain personnel matters such as the employment or performance of a public official or employee if the discussion could be reasonably expected to cause damage to the reputation of the individual or would violate that person’s right to privacy.
Closed sessions are also allowable for the investigation of charges or complaints against a person but then the person charged or being investigated is permitted to attend and may, in fact, request in writing that the investigation or hearing be conducted in an open session. A person bringing charges or allegations of misconduct against an individual under discussion may be present as well.
An entity is allowed to discuss the acquisition of real estate in a closed session if doing so publicly would prejudice the bargaining position of the agency. Certain labor contract negotiations may also be held in an executive session. A public organization is permitted to consult with its attorney in a closed session in certain situations.
A school board may discuss a suspension or expulsion of a student in a closed session, provided that the student, legal counsel and the student’s parents/guardians, if the student is a minor, are permitted to attend.
Prior to adjourning into an executive session, the organization must publicly give the precise nature of the business to be discussed, along with the citation of the authority that permits the closed session (e.g., a school board might adjourn to executive session to discuss a student matter. The board’s minutes might note the vote was “pursuant to 1 M.R.S.A.§ 405 (5B),” referring to Maine Revised Statutes Annotated, Title 1, Chapter 13: Public Records and Proceedings, Subchapter 1: Freedom of Access, § 405, Executive Sessions).
Once in a closed session for a specific, publicly stated reason, an entity cannot discuss other business. Further, no final approval of ordinances, orders, rules, resolutions, regulations, contracts, appointments or other official actions should be approved within an executive session. Votes may be taken in an open session only.
Your rights. If you feel you have been excluded from a meeting, not properly notified of a meeting, or denied access to public records, you can:
challenge the grounds for the exclusion. Ask about the legal backing of the decision. If, for example, you felt your local planning board held an illegal meeting, they or you should refer to the Freedom of Access Act. Ask to have your protest formally recorded in the minutes and follow your verbal protest with one in writing, clearly stating your protest and any requests you have.
work with the local media. Contact a reporter regarding your protest or prior to a meeting you feel may be illegally held, write a letter to the editor, or suggest the editor consider the issue and write an editorial.
contact the local district attorney or the state attorney general, who can clarify any legal issues.
contact the Maine Civil Liberties Union, which may be able to advise you whether the law applies to your situation and provide you with free legal services.
Willful violations of the law are punishable by a civil penalty and fine of up to $500.
To see the Freedom of Access Act in its entirety, refer to http://janus.state.me.us/legis/statutes/1/title1ch13sec0.html. Source: A Citizen’s Guide to Maine’s Freedom of Access Act, by Sigmund Schutz, attorney at Preti Flaherty. Prepared for the Maine Press Association. Printed September, 2006.