The city of Westbrook has violated state and federal freedom of information laws by denying the American Journal records of the fire department’s payroll, according to a freedom of information expert.

The newspaper two weeks ago formally requested from the city the November and December payroll records, under the state’s Freedom of Access Act and federal Freedom of Information Act. The city denied that request due to an objection from the attorney for the firefighters’ union.

Attorney Howard Reben, who represents Teamsters Local 140, based the city’s argument on a 1991 Supreme Judicial Court of Maine case, in which the Lewiston Sun Journal requested documents from an investigation into an incident where a police officer fired shots, wounding a Lewiston resident.

According to Mal Leary, president of the Maine Freedom of Information Coalition and a member of the state Legislature’s Right To Know Advisory Committee, the case is irrelevant to the American Journal’s request for payroll records.

“Payroll records were a public record before we had a public records law,” Leary said. “It’s fundamental that the public has a right to know how their money’s being spent.”

Leary said the presumption in the law is that any government record is public unless there is a specific exemption. The documents requested in the court case cited by Reben fall under one of those exemptions. Payroll records do not, he said.

Reben has been representing members of the Westbrook Fire Department who have come under investigation due to sexual harassment claims made by two female firefighters last year. In December 2008, seven members of the department were disciplined. Two of them are currently facing additional punishments from the city.

Though the city only provided the American Journal the 1991 court ruling as its reason for denying the records, in an interview Monday, Reben said he believed the intent behind the request was to circumvent a law protecting the firefighters’ rights.

“I don’t think that the law permits you to get information by indirection that’s prohibited by direction,” Reben said, referring to his argument that the payroll records would reveal disciplinary actions that are not considered public until employees have exhausted their appeal rights.

“The law clearly says that they cannot take into account the intent of why any person wants a public record,” Leary said. “In my opinion, they’re violating the law because they’re taking into account what they consider to be the intent of the requester.”

Leary said it’s up to the district attorney and attorney general to enforce the laws. Cumberland County District Attorney Stephanie Anderson this week declined to comment on the situation, because it is a civil matter. Maine Attorney General Janet Mills said Tuesday her office would review the paper’s requests and the city’s response.

“We fully intend to pursue this vigorously,” said Jane P. Lord, executive editor of Current Publishing, the company that owns the American Journal.

According to Leary, a new law went into effect in September punishing those who knowingly violate freedom of information laws. Leary said if a judge finds that the arguments of a party that violated the freedom of information law were without merit, it could end up paying damages, such as court costs.


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