Maine SJC Rules in Favor of Access to Government Records; NEFAC Filed Amicus Brief in FOAA Case


CONTACT Justin Silverman | 774.244.2365 |

pinkhamThe Maine Supreme Judicial Court recently ruled that government records exempt from disclosure under the state’s Freedom of Access Act are not automatically exempt from disclosure during litigation. The decision, arising from a case involving an appraisal report in an eminent domain proceeding, will help prevent government records from being kept secret during judicial proceedings.

The New England First Amendment Coalition and the Maine Freedom of Information Coalition filed an amicus brief in the case on Feb. 16, expressing concern that judges and juries could be deprived of government records without a compelling reason. NEFAC’s Sigmund Schutz, an attorney at Preti Flaherty in Portland and a member of MFOIC, drafted the brief.

“This is a freedom of information victory,” said Justin Silverman, NEFAC’s executive director. “This ruling confirms the right of access parties in court proceedings have to government information.”

Pinkham v. State of Maine Dept. of Transportation, decided by the Maine SJC on May 19, involves a real estate property subject to eminent domain proceedings. The Maine Department of Transportation performed a full appraisal report of the plaintiff’s property and others but never provided the entire report to the plaintiff. One of the central issues is whether the department’s records can be withheld during discovery because they may be exempt from disclosure under FOAA.

NEFAC argued against the applicability of a statute allowing the department to keep some records confidential, saying that the law was neither intended to supersede the free flow of information to litigants and courts nor to create a statutory privilege allowing appraisal reports to be withheld.

In finding for the plaintiff, the court agreed with NEFAC’s position that records exempt from disclosure under FOAA are not, as a result, exempt from disclosure to parties in litigation with the state of Maine. The court wrote that the statute in question — Title 23, Section 63 — exempted an appraisal report from disclosure to the public under the FOAA but not from disclosure to the plaintiff, who was challenging the compensation the DOT paid him for taking his property. The plaintiff requested the appraisal during litigation using “discovery” rules of civil procedure.

The court wrote that “whereas FOAA governs the disclosure of non-confidential public information, discovery regards the disclosure of information – which may be confidential – within the closed universe of litigation.” NEFAC had argued that it is important for government records to be available to parties in litigation even when they aren’t available to the general public.

The court rejected the DOT’s argument that its interpretation of the confidentiality statute should be afforded “deference,” in matters involving litigation, as is generally the case in other circumstances. Schutz argued that providing agency deference in lawsuits “amounts to a thumb on the scales in favor of the agency’s own interpretation of statutes and regulations, in contrast with the interpretation by whoever is fighting with the agency.”

Addressing for the first time whether agency interpretations of exceptions to the FOAA are entitled to deference, the court ruled that the “intersection of section 63 with the Maine Freedom of Access Act” is not an area “within MDOT’s expertise.”

“The deference issue is important,” Schutz said. “If the court had ruled otherwise, that would have opened the door for all state agencies to argue for ‘deference’ to their own interpretations of FOAA exceptions, which would expand the scope of confidentiality.”

NEFAC regularly files and joins amicus briefs in cases that affect the First Amendment rights of New Englanders. Most recently, NEFAC filed an amicus in Rideout v. Gardner, a 2016 New Hampshire case involving the right to take photographs of election ballots; and Commonwealth v. Lucas, a 2015 Massachusetts case addressing a state law that restricted free speech rights that could have resulted in unconstitutional restraints on publishers.


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.