Eaton Peabody

The Maine Law Court has recently held, for the first time, that "public records" subject to disclosure under the Maine Freedom of Access Act do not include documents prepared exclusively for use in a validly- called executive session or any notes made by those participating in the execution session. The Law Court reached this logical, but previously unarticulated conclusion in Blethen Maine Newspapers, Inc. v. Portland School Committee, decided April 24, 2008.

The case involved a local newspaper that sought to obtain copies of documents made and presented to the Portland School Committee during an executive session at a time when there was controversy over a substantial school financial deficit. The newspaper questioned whether the School Committee entered into executive session for a permitted deliberation and argued that, in any event, it was entitled to access to documents presented and made during the session as well as any notes taken. The Law Court disagreed. Finding that the School Committee complied with the procedures of the Maine Freedom of Access Act for executive session it announced its bright-line rule: documents prepared exclusively for use during an executive session and the notes made during the executive session are not public records subject to examination.

The decision in Blethen closes a gap between the executive session provisions under section 405(6) in the Maine Freedom of Access Act and the definition of "public records" in section 402(2) and clears up long-standing uncertainty in this area. While the Law Court's Blethen decision does not expand the types of matters that may be discussed in executive session, it will make the mechanics of running an executive session considerably easier. Provided that municipalities follow the provisions of the Freedom of Access Act for calling executive sessions set forth in 1 M.R.S.A. § 405(6) and undertake deliberations only on permitted matters, municipal board members can now receive and present written information, take notes and make informed deliberations without fear that those materials will be subject to public access.

Eaton Peabody attorneys are available to assist municipalities in understanding the Maine Freedom of Access Act and the provisions applying to executive sessions.

This email alert was prepared by Michael R. Clisham, Esq. and Erik M. Stumpfel, Esq.

For further information on any of the included topics please contact the Municipal Law and Finance Practice Group at 207-991-0111, or at mclisham@eatonpeabody.com.