Maine has an open government — with nearly 500 exceptions

Eddington Town Manager Russell Smith (left) and Planning Board member Gretchen Heldmann discuss their Freedom of Access Act requests sent to the Maine Department of Transportation about the 1-395/Route 9 Transportation Study on Friday, Feb. 8, 2013.
Carter F. McCall | BDN
Eddington Town Manager Russell Smith (left) and Planning Board member Gretchen Heldmann discuss their Freedom of Access Act requests sent to the Maine Department of Transportation about the 1-395/Route 9 Transportation Study on Friday, Feb. 8, 2013. Buy Photo
By Matthew Stone, BDN Staff
Posted April 05, 2013, at 12:10 p.m.

A legislative committee’s vote Wednesday in favor of making the identifying information of concealed handgun permit holders confidential moves the Legislature closer to adding to a list of exceptions in Maine’s public records law that has grown over time to nearly 500.

Those exceptions bar records ranging from state park camper reservations to prison floor plans from coming into public view.

They ensure the names of people thought to have communicable diseases, library patron records and lists of residents receiving certain state services are sealed.

And they prevent businesses’ trade secrets from falling into the hands of competitors when they submit information to government agencies to comply with regulations or apply for tax benefits.

“You go through so many parts of the law, and you have to weigh what’s in the public interest versus the private interest,” said Mal Leary, president of the Maine Freedom of Information Coalition and managing editor of Maine Public Broadcasting Network’s Capitol Connection service.

Maine’s public records law, the Freedom of Access Act, or FOAA, dates back more than 50 years.

A review of the the law’s history shows that while the Maine Legislature meaningfully expanded the open government law in the two decades following its passage, that’s also when lawmakers started carving out exceptions — a practice that hasn’t stopped.

During this legislative session, for example, lawmakers won’t only consider the exception proposed by LD 345, the concealed handgun permits bill. They’ll also consider shielding veterans’ applications for property tax exemptions from public inspection and strengthening the confidentiality provisions when decisions by health insurance providers are the subject of external reviews.

At the same time, they’ll weigh legislation to broaden Maine’s open government law, including a bill that would make board meetings public at hospitals that get more than 50 percent of their revenue from government sources and one that would do the same for the board that manages Maine’s high-risk health insurance pool.

And while the Legislature might make concealed handgun permit holders’ personal information confidential this spring, developments in Maine’s freedom of access law over the past decade make it likely the exemption will be revisited.

Expansion and contraction

The Maine Legislature passed the foundation of today’s open government law in 1959, according to a legislative history of the law compiled by Maine’s Law and Legislative Reference Library.

Under An Act Pertaining to Freedom of Access to Public Records and Proceedings, government bodies would meet in public and make meeting minutes publicly available. Maine’s open government law passed eight years before the federal Freedom of Information Act took effect.

In 1969, the Legislature amended Maine’s decade-old law to clarify that members of the public could record and broadcast public meetings. Four years later, the law expanded again to make any license, certificate or permit issued by a government agency a public record.

Lawmakers continued expanding the law’s scope in 1975 and 1976, applying open meeting and public records provisions to the trustees of the University of Maine and Maine Maritime Academy, establishing conditions for a public body to enter into executive session, declaring most paper and electronic documents of government agencies public records, setting a 10-day response time for agencies to deny a public records request and granting residents the right to appeal such a denial in court — where it would be given priority status.

At the same time, however, legislators carved out some early exemptions. They clarified in the law that any record designated confidential by statute wasn’t public information. And lawmakers declared their own “working papers” — drafts and memos used to prepare legislation — off limits to the public.

“I think there is a slight danger here that that kind of thing could be misused,” Rep. Douglas Smith, D-Dover-Foxcroft, said during House floor debate in June 1975.

“I wonder if we are trying to be holier than thou, or are we hypocrites?” objected Rep. Richard Hewes, R-Cape Elizabeth, according to the legislative record of the debate. “We want openness in government for everybody except ourselves.”

When Gov. Paul LePage last year tried to shield his working papers, the Legislature didn’t allow it.

Taking exception

The Legislature enacted a mix of measures during the 1990s and early 2000s to make certain information off limits and other information subject to the public records law.

In 1991, for example, the records of emergency medical services units were declared off limits, along with the reports of fire departments investigating youth arson cases.

A year later, applications submitted for state jobs and letters of reference became public along with disciplinary decisions for municipal employees.

Around that time, the Maine Public Broadcasting Network board became subject to the public meetings law. And in 1996, any task force or study group formed by a governor was also made subject to FOAA. The governor, however, was allowed to exempt the group from the law’s requirements through an executive order — an allowance LePage used in 2011 to form a business advisory council. He later reversed those plans.

In 1999, the Legislature granted professional licensing boards the ability to meet in private to develop the contents of examinations for licenses and employment.

And after the attacks of Sept. 11, 2001, security colored discussions about access to public information. In 2002, the Legislature added government agency security plans — then comparable information about their computer systems a year later — to the list of shielded documents.

“If we surrender more of our public right to know, then we surrender to our fears for a false sense of security, and the terrorists … will have won that battle,” Rep. G. Paul Waterhouse, R-Bridgton, said during House debate.

“I don’t think there is much of a sacrifice of our freedoms here, but rather it is a very commonsensical approach to protecting the citizens we represent,” replied Rep. William Norbert, D-Portland.

Also in 2002, lawmakers enacted two exceptions to protect victims of domestic violence from their abusers. One was the Address Confidentiality Program, which shields victims’ addresses from public view and provides them with confidential mail forwarding.

Audit and reforms

Exceptions had piled up by the early 2000s, and enforcement of the freedom of access law was inconsistent.

The Maine Freedom of Information Coalition in 2002 tested compliance with the law at police departments, municipal offices and school districts across Maine. Volunteer auditors found about a third of police departments didn’t furnish daily incident logs, a third of school districts didn’t allow auditors to view superintendent contracts and about a quarter of municipal offices didn’t send back requested meeting minutes.

The audit prompted the Legislature to form a committee that recommended changes to Maine’s Freedom of Access Act, including the appointment of a public access ombudsman to help residents navigate freedom of information issues and a requirement that agencies furnish requested records within a “reasonable” timeframe.

The committee also took on the issue of public records exceptions. It charged a legislative office with compiling a list of the exceptions spread throughout Maine’s statutes, and it charged a 16-member Right to Know Advisory Committee with periodically revisiting them and recommending changes.

For newly proposed exceptions, the resulting law required a special review by the Legislature’s Judiciary Committee.

In 2009, Rep. Patsy Crockett, D-Augusta, requested a new exception, asking the Legislature to keep prison floor plans from public view. She cited a Kennebec County jail inmate who filed a request for the information in testimony before the Criminal Justice and Public Safety Committee.

Modern jails are designed so if an inmate escapes his “pod,” he wouldn’t know which way to go, she said. “Under Maine law, inmates can now overcome this problem by simply having someone ask for the facility floor plan.”

Under the exception review process, the Judiciary Committee took a look at the bill and recommended some tweaks to the language. The Criminal Justice Committee, then the full Legislature, supported the bill.

Freedom of Access today

Meanwhile, the Right to Know Advisory Committee has worked in recent years to review swaths of Maine statutes with exceptions to FOAA and recommend changes to the Legislature. The committee hasn’t often recommended erasing exceptions, but it has recommended numerous language changes.

In 2009, the committee’s review turned up a state law that barred the education commissioner from releasing information about the denial, suspension or revocation of a teacher’s certification. The committee recommended, and the Legislature supported, a law change that allowed the commissioner to report the information and release it to a national clearinghouse for teacher certification information so school districts in other states could know whether a job candidate lost his or her Maine certification.

If the pending concealed handgun permit law passes, it will likely get the same type of review.

“There’s all sorts of areas where you have exemptions,” said Leary of the Freedom of Information Coalition, “and you look at them and ask, ‘Why?’”

Matthew Stone is a reporter in the BDN’s State House bureau.

http://bangordailynews.com/2013/04/05/politics/maine-has-an-open-government-with-nearly-500-exceptions/ printed on July 23, 2014