AUGUSTA — The LePage administration is reviewing its communications policy to determine whether a ban is needed on the use of secret messaging systems, which could enable state officials to circumvent Maine’s public records law.
The scrutiny follows testimony Friday by a former employee of the Maine Center for Disease Control and Prevention, who told the Legislature’s Government Oversight Committee that supervisors had instructed her to conduct state business with an untraceable messaging feature on her state-issued BlackBerry.
Sharon Leahy-Lind, a former director of the CDC’s Division of Local Public Health and a plaintiff in a whistleblower lawsuit against three CDC officials, described an atmosphere of secrecy, including an order to destroy documents related to $4.7 million in public health grants.
She said she was told to use BlackBerry messages for state business because the messages could not be obtained by outside parties through the state’s Freedom of Access Act. CDC officials, including Director Sheila Pinette, told the oversight panel that they were unaware of such a directive.
It’s unclear whether that system is used widely by state officials. The administration has no policy prohibiting the use of secret messaging systems, said Adrienne Bennett, spokeswoman for Gov. Paul LePage.
Maine law defines a public record as any written, printed or electronic data in the custody of a state agency or public official and used to conduct public or government business. The law covers text messages, but the messaging system on state-issued BlackBerry phones is untraceable and not stored on state servers.
In New York in 2012, Democratic Gov. Andrew Cuomo and officials in his administration were found to be using the BlackBerry messaging system. According to news reports, the messages were part of a strategy to limit communications that could be requested through New York’s public records law.
Bennett said Monday that she was unaware of any policy to use the messaging program. Although the administration doesn’t prohibit using messages to communicate, she said, it is reviewing its policy to determine whether a ban is needed.
Bennett is one of several administration officials who carry BlackBerrys with the messaging system.
“I’ve never used BlackBerry Messenger,” Bennett said. “Honestly, we make phone calls, we email; on occasion, very rare occasions, we’ve texted.”
SOME OFFICIALS HAVE BLACKBERRYS
Questions remain about whether the system is used because many state officials carry messaging-enabled BlackBerry phones, including Cabinet and staff members in the administration. Bennett said she was unsure how many state employees have BlackBerry phones with the messaging service.
Several state agency heads and their senior staffers carry BlackBerrys, but it’s unclear how many of the phones have been issued by the state. According to the state’s cellphone carrier contract, obtained by the Portland Press Herald last year through a public records request, BlackBerry phones are an option for some state employees.
A request for a breakdown by department and employee was not fulfilled by press time Monday.
Bennett said, “I hope there is no implication that this administration condones that sort of behavior. … We have taken pride in the fact that we’re a transparent administration.”
Leahy-Lind’s comments to the Government Oversight Committee prompted follow-up questions by lawmakers, including Sen. Emily Cain, D-Orono, and Sen. Roger Katz, R-Augusta. Both expressed concern that the messages could be used to conduct public business in private, and indicated that the committee could look into the issue further.
Leahy-Lind said her supervisors told her to use the BlackBerry messages because they are not subject to the Freedom of Access Act, but Brenda Kielty, the state’s public access ombudsman, confirmed that text and instant messages used by public officials for state business are public by law.
“Any record, regardless of the form in which it is maintained by an agency or official, can be a public record,” Kielty wrote. “If a text message is received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business and is not deemed confidential or excepted from the FOAA, it is a public record.”
Kielty added that the BlackBerry messages are problematic because they’re “transient” – not stored on the BlackBerry server. The messages essentially pass through U.S. Cellular, the state’s cellphone provider.
MIXED RECORD ON TRANSPARENCY
The issue arises during Sunshine Week, established by advocates to promote transparency in government.
Transparency and open government have become buzzwords for politicians who recognize the populist value of lifting the veil on government business. But fulfilling the promise of transparency is more difficult, particularly because political opponents and advocates make heavy use of public records to try to embarrass elected officials.
When he ran for governor in 2010, LePage vowed to have the most transparent administration in state history. He has taken some steps to improve transparency, including the creation of a website that allows the public to track government spending. But his administration has also come under fire for flouting the Freedom of Access law.
Earlier this year, he dared Attorney General Janet Mills, a Democrat, to sue him after she urged him to release a taxpayer-funded Medicaid study nearly four weeks after it came into his administration’s possession.
The administration has since dramatically slowed its response to journalists’ public records requests. Several requests by the Press Herald have languished since early November.
In 2011, LePage said political opponents and some news organizations were using the Freedom of Access Act as a form of “internal terrorism,” inundating his administration with “nuisance” requests, including one for the Blaine House grocery bill.
The governor said later that such requests were behind his proposal to exempt his administration’s “working papers” from public-disclosure requirements, including correspondence related to potential legislation and policy matters.
Lawmakers rejected the proposal, but LePage later said that he had instructed his staff to limit its use of email and written correspondence to avoid the Freedom of Access Act.
“‘They can’t FOAA my brain,’” the governor said.
Steve Mistler can be contacted at 791-6345 or at: