March 10, 2013

After first six months, public access chief scores mixed reviews

Activists say they expect Brenda Kielty to evolve in the new position, even if the law ‘basically renders her a diplomat.’

By Michael Shepherd mshepherd@mainetoday.com
State House Bureau

AUGUSTA - John Simpson isn't impressed with the work of state ombudsman Brenda Kielty.

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Brenda Kielty

He says she did little to help him when Hancock County officials charged him $5,035 to make his own copies of public documents from the county registry of deeds.

But another Maine businessman, Stan Smith, sees Kielty as a forceful advocate. When the Department of Education couldn't find emails he sought in connection with a computer services contract, Kielty raked Commissioner Stephen Bowen over the coals for sloppy record-keeping and the agency's failure to comply with the public access law.

In her first six months on the job, Kielty, of Freeport, is earning mixed reviews for her performance as Maine's first public access ombudsman.

Records obtained from her office by the Maine Sunday Telegram under the Freedom of Access Act, coupled with follow-up interviews, show that Kielty has spent part of her time acting as a kind of information traffic cop, answering basic questions and directing citizens to sources of public records.

She has also devoted attention to mediating disputes and helping Mainers overcome roadblocks that keep them from public records.

Right-to-know activists say that Maine is fortunate to have an ombudsman, because most states don't -- even if Kielty has yet to become a consistent and strong advocate for public access.

But a national expert on open records describes Maine's ombudsman law as "run of the mill," with language that fails to provide the ombudsman with the authority to broker disputes effectively and do battle, if necessary, with public agencies.

"What she doesn't have is any ability to do anything if the agency hunkers down and decides that its strategy is to smoke her out," said Charles Davis, a University of Missouri journalism professor. "That basically renders her a diplomat."

LAW DEFINES OMBUDSMAN DUTIES

State lawmakers will have a chance to evaluate the ombudsman program after Friday, the deadline for Kielty to submit a report to the Legislature summarizing her work.

The Legislature created the ombudsman position in the Attorney General's Office in 2007 but didn't fund it until September 2012.  To fill the job, then-Attorney General William Schneider hired Kielty, who had been his special assistant and media spokeswoman since February 2011. She earns $88,000 a year in salary and benefits.

Maine law defines her duties: She must answer informal questions about Maine's access laws; help resolve complaints; prepare educational materials; give advisory opinions when requested, and make recommendations to improve laws.

Kielty said she sees her role as largely a mediator. At an October 2012 speech before the Maine Press Association, a trade group that includes the Maine Sunday Telegram, she said an ombudsman must maintain "independence, impartiality and a credible review process."

Attorney General Janet Mills said in an interview that Kielty is an advocate "for the law," but not necessarily for every specific access dispute.

Kielty said she has no control over the flow of citizen inquiries. "That's my No. 1 priority, if you're looking at my day, to answer that phone when it rings," she said.

EXAMPLES OF ACCESS ISSUES

The Telegram reviewed nearly 500 pages of calendars, emails and other documents it obtained under the Freedom of Access Act that detail the ombudsman's work. Those records indicate that Kielty helped a dozen or so people with access-related issues or questions.

Some had quick questions. For example, one November email from Kielty followed up on a call from a town official in Newburgh in Penobscot County, wondering about procedures for going into executive session. Kielty referred him to the state's website.

John Storer, superintendent of the Auburn Water and Sewer District, said Kielty mediated a dispute for him, after an Auburn resident who made frequent requests for copies of staff email wrote to her and accused the district of not being responsive.

(Continued on page 2)

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Today's poll: Ombudsman

Does the state of Maine need a public ombudsman?

Yes

No

View Results