The Maine Freedom of Access Act (FOAA) gives anyone in Maine the broad right to access public records, including information about public schools.
The following information is provided to members from MEA’s General Counsel, Ben Grant.
FOAA is based off the principle that transparency and open decision-making are essential for the public to continue to have trust and confidence in our government, including our public schools.
Recently, FOAA has been increasingly used to access information from school districts and educators regarding everything from lesson plans to a complete catalogue of all books on the shelves of individual classrooms.
“FOAA has morphed from guaranteed access to high government actions to a near-forensic examination of every thought produced by every public employee,” said Ben Grant, Legal Counsel for the Maine Education Association.
A recent example of FOAA request included the following information and actions:
- Request made for all known email accounts, texts, IMs, handwritten notes…relating to “any of the work [the Educator] is doing within the district.”
- Response includes disclosure of Educator emails to Administrator relating to gender preference of a student.
- Requestor uses this information to attack Educator online.
While requesting this type of information may not have been what the law intended, it is how some are using the law to gain information about routine actions inside our schools, and for this reason Grant says it’s crucial educators fully understand this law and their rights.
Who the FOAA Law Covers and What Can Be Accessed
FOAA is broad and deep. It covers nearly all public employees-including anyone who works in a public school. Requests for documents and information can be made in any form and for any reason without the need for the requestor to specify their request. FOAA grants access to virtually all communications related to “the transaction of public business” and can often reveal embarrassing, extraneous communications. The law also contains almost no specific procedures for any steps in the request and distribution of materials process. The law does have some guardrails that make certain documents exempt from public disclosure, including:
- Health Care information
- Attorney-client privilege
- Juvenile proceedings
- Information gathered by a school counselor during a “counseling session”
- Student assessment data
What to do if YOU are Part of a FOAA Request
If you find yourself involved in a FOAA request the first thing you need to do is contact your MEA representative immediately. Your Union is here to support you, and this is not a process that you should undertake alone. According to the law, you have FIVE days to acknowledge the request.
There is no specified time in law, only a “reasonable” amount of time is required to fulfill the request. MEA advises, even if you are the subject of a FOAA, that you work with your MEA representative before any response is made or documents are turned over.
What Documents Can Be Requested?
The short answer is everything pertaining to your job as a public employee, whether it is a note, a lesson plan, a list of materials you use to teach, or something else may be subject to FOAA and can be made public. It is important to note that FOAA pertains to information, not the origin or form of the information. This means that if you take notes on your personal computer or your personal cell phone about something related to school and those notes are subject of a FOAA request, that information must be turned over as part of the request. It does not matter that the information was on your personal device(s) – it’s the information, not the source of the information, that is relevant to the law.
What about Union activity?
Union activity is both the subject of a specific exemption, and it is private business. It is not subject to FOAA disclosure. That said, as a matter of best-practices, MEA urges all members to refrain from conducting any Union activity on government-issued devices.
Practical Advice for ALL Educators
It is crucial all educators remember they are public employees, even in their private time. Whether you like it or not, many aspects of public employees’ lives-even when they’re not working-are still public. Using common sense when you’re putting anything in writing, whether it’s on paper, a text message, an email or even a social media post is crucial. Your social media pages are not your own, and privacy settings should be on at all times. Never delete, erase, burn or shred any documents, and never ignore or provide incomplete information. For any questions regarding your rights, and requirements as they pertain to FOAA contact your MEA UniServ Director.
