It was a simple question that the Maine County Commissioners Association Risk Pool was required to answer: How much did a public agency pay out, in taxpayer funds, to settle a lawsuit? Still, the Risk Pool refused to hand over the information.
It was an outright violation of the state’s Freedom of Access Act – something that happens far too often and goes unpunished nearly as much. But this mistake, as the Kennebec Journal reported late last month, will end up costing more than $200,000.
The landmark ruling raises another, harder question: Will it be enough to force Maine government at all levels to respect open-records law and the public’s right to know what is being done with their tax dollars?
It should be. The ruling from Superior Court Justice Daniel Billings, affirmed by the Maine Supreme Judicial Court, for the first time finds that a public agency has acted in bad faith with regards to Maine’s public records law. It sets the standard by which questions over access to public records will be determined and lets agencies know that they have an obligation to fulfill requests – and that they can’t simply fish around for legal-sounding reasons not to.
The case involved the settlement in a lawsuit brought by a person formerly incarcerated at Kennebec County Correctional Facility in Augusta, where he said he was mistreated by guards. When there were conflicting reports over the size of the settlement paid out by the Risk Pool, the Human Rights Defense Center tried to determine what was true. When the Risk Pool refused to fill a request for public documents related to the settlement, the center joined forces with the ACLU of Maine to file the suit.
Justice Billings found that the Risk Pool worked to keep from turning over the records. The director of operations for the Risk Pool, Malcolm Ulmer, “knew that he had responsive documents, and he decided to prevaricate and obfuscate rather than disclose them,” Billings wrote.
It is a particularly egregious case of a public officials keeping public records from the public. But the story is likely to sound familiar to people who try regularly to get information out of government, something that is supposed to be available to everyone on demand.
Most of the time, the process works with little issue.
But when someone at some level of government wants to keep a document from the public, or simply delay its presentation until the information is no longer timely, they can do so with ease. They may ultimately be forced to hand it over, but by that time, the document won’t be as useful in keeping tabs on government, and typically no one is held accountable for the delay.
Until now, that is. Because it was ruled to have acted in “bad faith,” the Risk Pool has been ordered to pay more than $130,000 in attorney’s fees to the ACLU of Maine. Along with its own legal fees, the debacle will end up costing the Risk Pool more than $200,000 – funds that ultimately come from taxpayers.
Those taxpayers should chastise county government for making such a costly mistake – and one fueled by a desire to keep information from the public. They should press government officials at all levels to explain what they are doing to make themselves more responsive to the public and the press – and avoid unacceptable fines in the process.
Enforcement of Maine’s Freedom of Access Act remains weak. In too many instances, it allows officials to put fulfilling public information requests on the back burner, when it should all be accessible. We support changes that force agencies to make more information public, or to pull it together more quickly when someone asks, so that the public doesn’t have to wait years for the courts to figure it out.
The ruling against the Maine County Commissioners Association Risk Pool should put government at all levels on notice. It tells them: Fool around with public information, and you’ll pay.
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