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Abstract

In 2007, the Maine Supreme Judicial Court, sitting as the Law Court, decided Cyr v. Madawaska School Department, and recently decided Blethen Maine Newspapers Inc. v. Portland School Committee. These decisions will guide the actions and behavior of municipal, school department, and elected officials in Maine, and will also affect public access to information under Maine’s broad “right to know” law, the Freedom of Access Act (FOAA). In Cyr, a split court held that an investigative report commissioned by the Madawaska School Department must be redacted to maintain the confidentiality of information relating to the personal history, general character, or conduct of an employee. Although the FOAA generally requires disclosure of public records, certain information in the Madawaska investigative report was exempted under Maine law. The Law Court vacated the Superior Court, which had ordered full disclosure of the report. In Blethen, the Law Court considered two aspects of the FOAA: first, the provision allowing executive session for certain purposes to shield information from public disclosure; and second, the scope of the definition of “public records.” The Superior Court had found that the Portland School Committee had held a partially illegal executive session; further found that certain documents used and created at the session were public records; and finally, ordered the disclosure of the documents, subject to redaction of confidential information. On appeal, the Law Court vacated the Superior Court and found that the School Committee’s executive session was lawful, and therefore the documents created for it, as well as notes taken during the session, are not subject to public disclosure. This Note will examine Cyr and Blethen, as well as the statutory and case law background of the FOAA. The Note then explores the implications of these decisions for municipal and school officials, and their attorneys. The combined effect of these decisions will affect the behavior of municipal and school board members and employees statewide. School committees and municipal councils are in need of guidance from the Law Court regarding two key issues: (1) when they can enter executive session (and what the remedy is for an improper executive session), and (2) what the scope of “public records” is under Maine law. This Note concludes that both the Law Court and the Maine Legislature should clarify the scope of the FOAA in order to avoid negative consequences for the conduct of municipal and school business.

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