Does Maine's Freedom of Access Act require legislative party caucuses to meet in public?

Subject

Whether legislative party caucuses are subject to Maine's Freedom of Access Act, in the context of LD 1551 ("An Act to Further Regulate the Communications of Members of Public Bodies").

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

LD 1551 was a 2010 bill before the Joint Standing Committee on the Judiciary aimed at the Maine Freedom of Access Act and its application to communications of public-body members. Representative Dostie asked Chief Deputy AG Linda Pistner to confirm in writing the prior advice the AG's office had given on whether party caucuses are subject to FOAA.

Pistner emphasized two points. First, the AG's office had not issued any formal Opinion of the Attorney General on the question, and the letter should not be cited as one. Second, FOAA does not directly address party caucuses, so the question is one of statutory interpretation.

The Maine FOAA's public-proceedings provision (1 M.R.S.A. § 402(2)(A)) covers "the Legislature, its committees and subcommittees." A "legislative subcommittee" is defined at § 402(1-A) as "3 or more Legislators from a legislative committee appointed for the purpose of conducting legislative business on behalf of the committee." Party caucuses, the office said, are not generally committees or subcommittees of the Legislature in that sense; they are gatherings of party members, not formally appointed working bodies of the legislative committee structure.

On that reading, the office had previously advised that it "could defend a decision to close a caucus." The letter was careful to add a caveat: if a legal challenge were brought, the specific circumstances of the caucus would matter to the outcome. So the AG's view was a defensible-default rather than a categorical rule.

Common questions

Q: Did the AG say all party caucuses can be closed?

No. The AG said party caucuses are "not generally" committees or subcommittees, so the office "could defend" a decision to close one. That is different from saying every caucus closure is automatically lawful. A challenge would look at the specific facts: how many legislators, what business was conducted, whether it functioned as a working subcommittee in disguise.

Q: What's the difference between a legislative committee and a party caucus?

A legislative committee or subcommittee is formally appointed to conduct legislative business on behalf of the chamber. A party caucus is a gathering of legislators from one party, which can address party strategy, leadership selection, and political positions but is not formally tasked with legislative work product like a committee bill report.

Q: Was this advice ever turned into a formal AG Opinion?

The letter explicitly said no formal opinion had been issued and asked that the letter not be cited as one. Whether the AG's office subsequently issued a formal opinion on the topic is a separate question.

Q: What is LD 1551?

A 2010 bill before the Joint Standing Committee on the Judiciary that addressed FOAA's application to the communications of members of public bodies. The letter does not contain the bill's text or take a position on whether the bill should pass; it simply reports the AG's existing thinking on the underlying caucus question.

Background and statutory framework

Maine's Freedom of Access Act, 1 M.R.S.A. § 401 et seq., establishes the right of public access to government meetings ("public proceedings") and records. Section 402(2)(A) lists "the Legislature, its committees and subcommittees" as subject to the public-proceedings rule. Section 402(1-A) defines "legislative subcommittee" narrowly: three or more legislators from a committee appointed to conduct legislative business on behalf of the committee.

Party caucuses sit in a gray area: they are gatherings of legislators, but they are organized along party lines rather than appointed by a committee. Pistner's letter applied the textual definitions and concluded a caucus generally falls outside § 402(1-A).

Citations

• 1 M.R.S.A. § 401 et seq. (Freedom of Access Act)
• 1 M.R.S.A. § 402(1-A) (definition of "legislative subcommittee")
• 1 M.R.S.A. § 402(2)(A) (public proceedings: Legislature, committees, subcommittees)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2010/ag_20100211.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
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84 R/.RLOw ST, iND FLOOR
BANGOR, MA!Nc,O,MOl
Teu (207) !141-3070
F.o:, (Z07) 9~1-3075
JANET T. MILLS
ATTORNEY GENERAL 44 OIJ<.Snurer, 4TR FLOOR
t PoRTV.ND, MAnre,04101•3014
'!Eu (Z07) BZ?-0l60 . .
fax, (207) 822-0Z59
Ton, (877) 4ZB-B800
S\l'ATE OF MAINE
TB...: (207) 626-8800 OFF1CE OF THE ATTORNEY GENERAL 14 A'CCFSS 'HIGHWfol: Sn l
TlY: .1-888-577-6690 CARIBOU, MJ.nli',04736
6 STATE HOUSE STATION Tm, (207} 496-37!n
AUGUSTA, MAINE 04333-0006 fax. (207) 496-32.91

                                                              Febrnary, 11, 2010



    The Honorable L,awrence Bliss, Senate Chair
    The Honorable Charles Priesti House Chair
    Joint Standing Committee on the Judiciary
    100 State House Station .
    Augusta, ME 04333-0100

             Re:        L,D. 1551, "An Act To Furtl_ier Regulate the Colllll1UI1Jcations of Members of
                        Public Bodi.esr•

    Dear Senator Bliss, Representative Priest B1Jd Members of the Committee:

          Representative Dostie asked that I -write to your co~ttee concerning the advice our
   Office has given in the past on the question of the whether a party caucus is subject to the
   Freedom of Access Act ("FOAA''), 1 M,R,S.A. §§ 401 et seq,

           The Attorney General has not issued any opinion on this issue and this letter should not
   be cited as one, I will simply observe that the FOAA does not directly address party caucuses
   and the issue is one of statutory interpretation.

          .That part of the FOM governing public proceedings applies to "[t]he Legislature, its
   committees and subcommittees," 1 M,R,S.A, § 402(2)(A), 11Legislative subcommittee" is
   defined as 11 3 or more Legislators from a legislative committee appointed for the purpose of
   conducting legislative business on behalf of the committee," 1 M.R.S.A. § 402(1-A), AB I .
   understand i4 party caucuses·are not generally committ('}es or subcommittees •of the Le:gislature,
   Accordingly, we-have said that we could defend a decision to close a caucus, while noting that if
   a legal challenge were to be brought, the specific circumstances would. be relevant to the
   outcome,            ·

                                                             Sincerely,

                                                              ~
                                                             Linda M, Pistner
                                                             Chief Deputy Attorney General