An attorney with Bernstein Shur has issued an opinion that the actions and records of municipal advisory committees "are very likely to be considered public."

A recent Maine Supreme Court decision ruled that records of a three-person advisory group, appointed by the Attorney General, are not subject to Maine's Freedom of Access Act (FOAA). That case involved a request to review the records of an investigation of the 1989 conviction of Dennis Dechaine. Dechaine, who is serving a life sentence for murder, has a considerable number of supporters who believe he was wrongly convicted. The task of the advisory group was to review the state's handling of the case to determine whether misconduct occurred. After the advisory group determined there was no wrongdoing, Dechaine supporter James Moore challenged withholding the group's records in Superior Court, which ruled against him, and again in the Supreme Court.

While some may interpret the high court's ruling as applying to all advisory groups not being subject to FOAA, attorney Amanda Meader wrote in a July 1 "advisory" that despite this ruling, "Our suggestion is that municipalities proceed under the assumption that records and workings of advisory committees are very likely to be considered public under the Freedom of Access Act."

Meader points to the 1988 case in which the Lewiston Daily Sun [now the Sun Journal] prevailed against the city of Auburn. In that case, "The court held that an independent, volunteer investigatory committee was required to comply with FOAA."

Meader writes that the Supreme Court decided that the advisory group appointed by the Attorney General's office should not be considered public officials because they were "providing non-binding advice, they received no state funds for their investigation, and they received only `incidental logistical support' from the Attorney General's office."

The Wiscasset Newspaper has argued for some time that the Route 1 Midcoast Advisory Task Force, which is sponsored by the Maine Department of Transportation, should also be subject to the Freedom of Access Act. A consultant for the task force secured an opinion from an attorney in the AG's office that says the task force is not subject to the law. Unlike the Supreme Court case, however, there are public funds (taxpayers' money) involved in this effort - not in paying members of the task force, but in paying consultants' fees and paying employees of the Maine Department of Transportation and the Federal Highway Administration, who lead and participate in the task force meetings.

Meader called the Supreme Court's decision "surprising" in light of the 1988 Sun Journal case, and, because "the court has a history of interpreting the Freedom of Access Act in favor of disclosure."

Two members of the court did not agree with the majority opinion, Meader says, arguing that the advisory panel "was acting as an arm of the AG's office and that the public nature of the investigation did not change simply because it was conducted by a group of private citizens."