NEFAC Defends Access to Government Documents During Maine Court Proceedings


CONTACT Justin Silverman | 774.244.2365 |

The New England First Amendment Coalition and the Maine Freedom of Information Coalition filed an amicus brief last month arguing that Maine’s Freedom of Access Act should not prevent parties in judicial proceedings from obtaining evidence. 

“We’re participating in this case to make sure that government records aren’t kept secret from judges and juries without a compelling reason,” said NEFAC’s Sigmund Schutz, an attorney for Preti Flaherty in Portland and a member of MFOIC. Schutz drafted the brief which was filed on Feb. 16.

The Maine Supreme Judicial Court case, Pinkham v. State of Maine Dept. of Transportation, 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 Maine’s Freedom of Access Act.

“Government records are not privileged from discovery merely because they are exempt from disclosure under public records laws,” argued NEFAC and MFOIC. “Public records laws serve distinct purposes from discovery in litigation.”

The two open government organizations also 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 general, privileges only exist to protect an interest that is too substantial to have an expiration date,” according to the brief. “That is not the case here, where months after a project concludes, appraisal and other records become available to the general public.”

MDOT’s response to the amicus brief can be read here. Oral arguments are scheduled for 1:30 p.m. April 6 in the Maine SJC courtroom in Portland.


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.