June 23, 2018
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Senate effectively kills bill that sought to remove public access to governor’s ‘working papers’

Gabor Degre | BDN
Gabor Degre | BDN
Gov. Paul LePage speaks in Rockland in March 2012.
By Eric Russell, BDN Staff

AUGUSTA, Maine — The Maine Senate on Wednesday voted unanimously to postpone indefinitely a measure that sought to exempt from Maine’s Freedom of Access Act any “working papers” created by the governor or members of his staff.

Sen. David Hastings, R-Fryeburg, who supported the bill when it passed the Judiciary Committee, made the motion to postpone indefinitely LD 1805. Sen. Justin Alfond, D-Portland, then requested a roll call so that the vote would be recorded.

All 34 senators in the chamber on Wednesday voted to postpone, which effectively kills the measure.

The Maine House last week rejected the majority report from the Judiciary Committee in a 47-98 vote that included opposition from many Republicans.

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

Despite objections, the proposal was approved by the Right-to-Know Advisory Committee last fall and then approved by a majority of the Judiciary Committee earlier this year.

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 working papers could be made public once the governor chose to distribute them or upon adjournment of the legislative session for which the proposed legislation, reports and papers were prepared.

“Maine’s public records law has always been based on the content of what is in the record, not based on who is in possession of the record,” said Mal Leary, a member of the Legislature’s Right-to-Know Advisory Committee and a frequent contributor to the Bangor Daily News. “The governor was seeking an exception based on who possesses a record, not on what it contains. He already has the ability to shield from public view those documents the Legislature has decided need to be confidential.”

Adrienne Bennett, spokeswoman for Gov. Paul LePage, said last week that 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.

Sen. Cynthia Dill, D-Cape Elizabeth, had proposed an amendment to LD 1805 that would have rejected the measure and also remove the Legislature’s exemption. That amendment never made it to the floor.

Members of the governor’s staff had lobbied lawmakers heavily but unsuccessfully over the last two weeks to support the bill.

During the bill’s public hearing, LePage’s deputy counsel Michael Cianchette said that without the exemption, the governor and his staff likely would stop creating records for fear that they might be made public.

Shenna Bellows, director of the American Civil Liberties Union of Maine, applauded the Legislature for rejecting the proposed exemption.

“Maine’s Freedom of Access laws have worked for decades and under governors of all parties,” said Bellows, who also is a member of the Right-to-Know Advisory Committee. “By rejecting this unwarranted new exemption Maine lawmakers have affirmed the right of Maine people to open and transparent government.”

Follow BDN reporter Eric Russell on Twitter @BDNPolitics.

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