May 25, 2018
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House rejects plan to exempt governor’s ‘working papers’ from public access

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Gov. Paul LePage speaks at a news conference Thursday, Dec. 15, 2011, at the State House in Augusta.
By Eric Russell, BDN Staff

AUGUSTA, Maine — The Maine House on Thursday overwhelmingly rejected a bill that sought to exempt any “working papers” created by the governor or his inner staff from Maine’s Freedom of Access Act.

The 47-98 vote to reject LD 1805 was a bit of a surprise because the bill was approved last month by a majority of the Judiciary Committee. The bill now goes to the Senate.

LD 1805 was drafted by the governor’s office in response to a flood of broad FOAA requests last year but also in part to afford the governor the same exemption lawmakers enjoy.

Under Maine statute, official records of the Legislature itself are subject to the Freedom of Access Act. However, all legislative papers and reports, working papers, drafts, internal memoranda and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature.

LD 1805 would have applied that similar statute to the governor’s working papers, which include reports, drafts, internal memoranda and similar material that is used to draft legislation.

The bill was debated at length on the House floor on Thursday and received support and opposition from both Republicans and Democrats.

Rep. Joan Nass, R-Acton, said the bill seemed like a reasonable exemption. Rep. Charlie Priest, D-Brunswick, the lone Democrat on the Judiciary Committee who supported the bill, said it’s no different than the exemption currently enjoyed by members of the Legislature.

Priest addressed concerns that the bill was written too broadly and pointed to an amendment that would have allowed the exemption to expire automatically at the end of 2013.

“Then, we’ll have plenty of time to look at it,” he said.

Others were strongly opposed.

Rep. Lance Harvell, R-Farmington, called it “A bill only Richard Nixon would allow and I urge you to vote ‘No.’”

Rep. Maeghan Maloney, D-Augusta, said she doesn’t know why Gov. LePage needs an exemption when no other governor has asked for it. She also disagreed with Priest that LD 1805 gives the governor the same exemption lawmakers have.

“It’s not the same. We don’t have the power of the chief executive or the staff,” she said.

Adrienne Bennett, spokeswoman for the governor, said the bill was meant to challenge the legislative branch to live by the same rules as the executive branch.

“If we are a government committed to transparency it should be equal all the way around,” she said.

During a public hearing on the bill last month, LePage’s deputy counsel, Michael Cianchette, was the only person to speak in favor of it. He said the proposal is needed to ensure that decisions can be weighed and considered candidly before they are made public.

Without that exemption, Cianchette said, the governor and his staff likely would stop creating records for fear that they might be made public. Under the bill, the working papers would not be made public until the governor chose to distribute them or until the adjournment of the legislative session for which the proposed legislation, reports and papers were prepared.

Many, however, criticized the bill for fear that it would allow the governor’s office to operate in secret.

The bill was amended in committee to restrict the exemption only to the governor and his staff. Before, the language was vague and could have been interpreted to include cabinet members. The amendment also added the “sunset” provision.

But it wasn’t enough to earn passage by the House.

Several lawmakers said privately that LePage had been working hard over the last few days to personally ask Republican House members to vote for the bill.

Bennett said Friday that the governor told her he did not lobby any lawmakers individually on LD 1805.

Shenna Bellows, director of the American Civil Liberties Union of Maine, was instrumental in whipping up votes against the bill.

“Transparency is fundamental to a healthy democracy,” she said. “This bill would have created a significant exemption in Maine’s freedom-of-access laws and shielded the governor’s office from appropriate scrutiny.”

Follow BDN reporter Eric Russell on Twitter @BDNPolitics.

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