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Maine Attorney General Reports and Opinions 1 (2009)

handle is hein.sag/sagme0008 and id is 1 raw text is: 2009-01

TEL- (207) 941-3070
FAX; (207) 941-3075
ATTORNEY GENERAL                              * '                      44 OAK STREET. 4TH FLOOR
3ms' PORTLAND. MAINE,04101-3014
TE.: (207) 822-0260
FAX (207) 822-0259
STATE OF MAINE                      Tou (877)428-8800
TEL: (207)626-8800             OFFICE OFTHE ATTORNEY GENERAL                14ACCESSHIGHWAY, STE.1
TTY: 1-888-577-6690                  6 STATE HOUSE STATION                   T   o (207) 496-3792
AuGUSTA, MAINE 04333-0006                  FAX (207)496-3291
March 5, 2009
The Honorable David Trahan
3 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 of the 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 narrow 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 of the 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 of the search, the
redaction or withholding of information, the timing and cost of production,
etc., are the sole responsibility of the department or agency.
The legal authority cited in support of this part of the OTT policy is 5 MRSA § 1982(9).
Section 1982 sets out the responsibilities of the OIT 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.

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