AGO 2009-01.

• Case Date: March 05, 2009
• Court: Maine

Maine Attorney General Opinions 2009. AGO 2009-01. 2009-01March 5, 2009The Honorable David Trahan3 State House Station Augusta, ME 04333-0003 Dear Senator Trahan: You have asked for an opinion as to whether the Policy on Access to Data and Information on State Owned Computer Devices ofthe Maine Office of Information Technology ("OIT") is in compliance with the Freedom of Access Laws ("FOAL"). In particular, you question whether, by placing responsibility for fulfilling FOAL requests for electronic records on the agency that generated the record, the OIT policy results in an overly nanow interpretation of the public's right to inspect records or otherwise violates the FOAL. For the reasons discussed below, I do not believe that a court would conclude that the OIT policy violates the FOAL. The OIT policy addresses FOAL requests made of OIT for data or Information that has been collected and used by a state agency other than OIT, and describes their respective responsibilities. For purposes of your questions, the central provision ofthe policy is found in Section IV.B., which provides:

State departments and agencies, as required by the Freedom of Access Act, are responsible for fulfilling requests for access to public records in their possession or custody, including information and data hosted on state-owned computer devices. All responses and decisions regarding the production of such information or data, such as the scope ofthe search, the redaction or withholding of information, the timing and cost of production, etc., are the sole responsibility of the departrnent or agency.

The legal authority cited in support ofthis part of the OIT policy is 5 MRSA § 1982(9). Section 1982 sets out the responsibilities ofthe arT Director, and subsection 9 states:

9. Protection of information files. The Chief Information Officer shall develop rules regarding the safeguarding, maintenance and use of information files relating to data processing, subject to the approval of the commissioner. The office is responsible for the enforcement of those rules. All data files are the property of the agency or agencies responsible for their collection and use.

As you note, the FOAL provides the right to inspect and copy public records. Public records are defined by 1 M.R.S.A. §402(3), and the term contains a number of exclusions, including...