AUGUSTA, Maine — Media members and others testified Thursday before a legislative committee in opposition to a proposal from the governor that would exempt all of his “working papers” from Maine’s Freedom of Access Act.
The bill, which was approved in December by a majority of the Legislature’s right-to-know advisory committee, essentially would grant Maine’s executive branch the same exemption that has been afforded to the legislative branch for more than 50 years.
Michael Cianchette, deputy counsel to Gov. Paul LePage, was the only person to speak in favor of LD 1805 during its public hearing before the Judiciary Committee. He said the proposal is needed to ensure that decisions can be weighed and considered candidly before they go public. Without that exemption, Cianchette said, the governor and his staff likely would stop creating records for fear that they might go public.
A number of people who spoke Thursday said that the proposal is far too broad and that the people of Maine have a right to know how LePage and any other governor makes policy decisions.
Longtime State House reporter Mal Leary, who reports on a freelance basis for the Bangor Daily News, was among the minority on the right-to-know advisory committee. Leary said the proposed law would put Maine “far outside the norm for access to records of state governors.” Only six other states have this type of exemption.
Already, state law provides certain exemptions and Leary argued that the exemptions should apply to the record itself, not the custodian of that record.
He also shared a quote Thursday from a campaign interview he conducted with LePage prior to the 2010 election.
“If I’m elected governor, we’re going to be so open, even you will be amazed,” the governor said.
Leary then added, “I’m amazed, but not in the way the governor thought I would be.”
The exemption was first proposed last summer in a letter sent by LePage to members of the right-to-know advisory committee. In it, the governor said he believed that “an open government is an honest government.” However, the governor also said he had concerns about what constitutes government business.
“We have received [FOAA] requests for all grocery receipts from the Blaine House,” he wrote. “The staff of the Blaine House conducts the shopping — it is not something I involve myself in. I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”
LePage also said he believes some people have been abusing Maine’s FOAA for political purposes and that concern is what prompted the recent request.
But Leary said the governor’s proposal goes far beyond the nuisance associated with complying with FOAA requests. He also pointed out that the past four governors, including two Republicans, one Democrat and an independent, all complied with the law as it exists.
Shenna Bellows, executive director of the American Civil Liberties Union of Maine and a member of the right-to-know advisory committee, said exempting the governor’s working papers would take the state backward in government transparency.
“This language is so broad and so vague that the governor could keep virtually anything secret if he proposed that he was intending legislation or a report to come from that information,” she said. “Secrecy breeds public distrust in government and potential corruption.”
Cianchette did say Thursday that the governor was open to amending the bill to clarify some of the language.
But the opposition was about more than just the language.
George Smith, former director of the Sportman’s Alliance of Maine, said he has been coming to the State House for 40 years and has “never experienced anything like the secrecy of this administration.”
“What is the governor hiding? And why? After promising the most transparent government in history, Gov. Paul LePage has delivered the most secretive,” Smith said.
“The governor does not need the encouragement of this legislation to hide from us all that he is doing,” Smith continued. “Shame on any legislator who helps the governor keep this information from the people he and they work for.”
Michael Dowd, editor in chief of the Bangor Daily News and president of the Maine Press Association’s board of directors, offered written testimony in opposition to the bill.
“The power of the governor and his ability to set the legislative agenda require that his work be subject to public scrutiny under the bright light of Maine’s sunshine laws,” Dowd said, reading his testimony at a press conference three hours prior to the hearing. “I believe the public has an absolute right to know how the governor’s legislative agenda is developed.”
Dowd said the timeline spelled out in the proposed legislation would be “too little, too late.”
“Instead of a well-informed citizenry being able to affect legislation before it becomes law, they will instead have to react after the fact,” he said.
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.
By comparison, records of the executives, such as governor, mayor or commissioner of a department, are subject to the FOAA if the records have been received or prepared for use in connection with the transaction of public or government business or if they contain information relating to the transaction of public or governmental business.
Some think the legislative exemption should be repealed, including Sen. Cynthia Dill, D-Cape Elizabeth, who said Thursday that she plans to offer an amendment to LD 1805 that would eliminate both the governor’s and Legislature’s exemptions.
Sen. David Hastings, R-Fryeburg, one of two legislators on the right-to-know committee and a co-chair of the Judiciary Committee, said in December that he supports an exemption both for lawmakers and the governor.
“I’ve never really given this a lot of thought, but no one has ever asked me for anything I would consider a working paper,” Hastings said. “The exemption has never been a problem that I know of … Everything will become public eventually.”
Neither portion of Maine’s FOAA related to the executive and legislative branch has been litigated, according to Portland-based attorney Sigmund Schutz, who specializes in media law.
A work session on LD 1805 has been scheduled for Wednesday, Feb. 29.
Correction: This story was amended to clarify that Michael Dowd read from his written testimony at an earlier press conference at the State House. His written testimony was submitted at the hearing.