• Maine's Public Records Law Now Applies to Private Contractors Doing Business with the State of Maine
  • September 9, 2010 | Authors: Charles F. Dingman; Sigmund D. Schutz
  • Law Firms: Preti, Flaherty, Beliveau & Pachios, LLP - Augusta Office ; Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • The Maine Legislature in 2009 enacted a little-known but important change that requires records of work performed by private contractors to be open to the public to the same extent as records relating to work performed directly by the state. This addition to Maine's public records law, known as the Freedom of Access Act (the "FOAA"), creates challenges for private contractors doing business with the State.

    Why was this change enacted?

    The Act is a response to the outsourcing of public services to private contractors. The Legislature was concerned that public access to records related to public services not turn on the employment status of the worker. The law now requires public access whether the person performing the work is a state employee or a private contractor.

    The law applies to private contractors only with respect to "personal services" work

    The law provides that all records, other than proprietary information, relating to personal services work performed under contract for state departments and agencies are public records under the FOAA to the same extent as if the work were performed directly by the department or agency. The law applies only to "personal services" work. The purchase of goods, equipment, or materials is not included. The law can be found at Title 5 of the Maine Revised Statues, Section 1816-A(4), as enacted by P.L. 2009, Chapter 221.

    Are commercially sensitive records protected?

    An exemption for "proprietary information" protects commercially sensitive records. Information is proprietary and exempt from public disclosure if it is a trade secret or commercial or financial information, the disclosure of which would impair the competitive position of the contractor and would make available information not otherwise publicly available. Information relating to wages and benefits of the employees performing the personal services work under the contract and information concerning employee and contract oversight and accountability procedures and systems are not proprietary information.

    Because this new law subjects personal service contractors to the FOAA "to the same extent" as if the activity were performed directly by government, there are various other exceptions to the FOAA that also can be invoked by contractors, where applicable. For example, much information concerning job applications, job examinations, personal information, and disciplinary action is confidential. That exemption can be found at Title 5 of the Maine Revised Statutes, Section 7070. Private contractors should consult with their counsel to address how the legislation may impact existing policies and practices with regard to confidentiality of personnel information.

    The Legislation took effect last fall and applies only to new, extended, or amended contracts executed on or after October 1, 2009. Standard language used in most Maine personal services contracts, typically attached as so-called "Rider B," has been modified to reflect this extension of the public records law, in a section captioned "Access to Public Records."