February 21, 2018
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State agency holds back a simple record, flouting public access law

By Darren Fishell, BDN Staff

A state agency withheld a public record from the Bangor Daily News even as it emailed the same record to the state’s public access watchdog. Such unexplained instances of withholding records are “becoming the norm,” according to the attorney who helped write Maine’s freedom of access law.

The small case over a simple record — a request to the Maine Department of Economic and Community Development for a log of public records requests made of the department in 2017 — highlights how state agencies can hold up the release of records to certain requesters if they feel like it.

There’s little oversight, limited recourse for requesters and language in the law that gives agencies substantial leeway to respond slowly even to a simple records request.

The law requires only that an agency acknowledge the request within five days and then fulfill it within a “reasonable” amount of time.

The BDN on Dec. 15 requested the list of 2017 public records requests sent to the DECD, along with any such records it had provided to the state’s public access watchdog.

The DECD emailed the list on Jan. 12 to Maine Public Access Ombudsman Brenda Kielty, but withheld it from a BDN reporter. In a series of emails, department spokesman Doug Ray declined to explain why the agency had released a simple record to one party and not to another.

“Unfortunately,” Portland media attorney Sigmund Schutz wrote in an email, that “experience is becoming the norm.”

Schutz was among those who filed requests with DECD in 2017, seeking the agency’s FOAA policy. Schutz requested the same record from all state agencies, he said.

Kielty said she was “very disappointed” by the DECD’s response.

“I don’t know why anyone would withhold this,” she said. “It doesn’t contain anything particularly controversial.”

The list shows a name and description of each information request — the agency received nine in 2017, including two from the BDN — as well as columns tracking the agency’s response time, fees and costs, and the hours spent fulfilling the request.

Since the BDN ultimately received the record it requested from another state office, the DECD would consider the request fulfilled, Ray said.

“If you already have that log, I would assume that FOAA request has been taken care of and we can put a checkmark next to that appropriate response time,” Ray wrote in an email.

Ray confirmed that the file was the same one he sent to Kielty. The file also included more than a thousand phone numbers — many outdated — for business owners across the state, which were hidden in the rows of the spreadsheet and unrelated to the FOAA requests.

Ray stated that his agency creates the record “at the request of the AG’s office,” but Kielty said that’s not the case. State law requires 14 executive branch agencies to maintain “a uniform log” of freedom of access requests.

“I happen to be the one who collects the data and sends out the email reminder,” said Kielty.

The Legislature created Kielty’s job in 2008 but didn’t fund it until 2012. Kielty began the job under Attorney General William Schneider and has continued in the position under Janet Mills, the current attorney general.

Kielty said she’s generally had little trouble obtaining request logs from executive branch agencies, though as of Friday she was still without reports from some agencies.

“It’s not very considerate, but it’s not very illegal either,” Kielty said.

She uses the information to write her annual report to the Legislature, which she is scheduled to deliver to lawmakers Thursday.

Reluctance to release public information has been a hallmark of Gov. Paul LePage’s administration, which fired an employee at the Department of Health and Human Services in December 2016 for sending a public report to the BDN. In October, his office denied the BDN access to LePage’s schedule of public appearances by saying that such a record does not exist.

A review by The Associated Press in 2016 found the governor’s office estimated it would take two months to produce email and calendar records that Senate President Michael Thibodeau turned over in four days.

The governor has criticized Maine’s Freedom of Access Act generally, writing in a 2014 veto letter that political groups were making “overly broad” records requests “as a weapon to hinder effective and efficient state government.”

Lawmakers created the ombudsman position, Kielty said, to help mediate public access disputes up front, rather than writing new punitive fines or other sanctions for state agencies into the state’s public records law. The law allows the attorney general to seek a penalty of up to $500 from an agency for failing to comply. Other than that, Kielty said, “you can go to court and file a lawsuit, but the remedies are pretty limited.”

As the DECD’s public access logs show, the agency is still determining how it will respond to a request the BDN made in late September for a loan application submitted by the company Stored Solar to start a shrimp farm in West Enfield. The company qualified for a $500,000 loan from the Maine Rural Development Authority, if it meets certain conditions.

As for that request, Ray wrote, “the application is quite lengthy and is still being reviewed internally.”


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