Wednesday, December 4, 2013
By Michael Shepherd email@example.com
State House Bureau
AUGUSTA - John Simpson isn't impressed with the work of state ombudsman 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.
She eventually negotiated an agreement in which the two parties had an understanding that he'd file a weekly request to reduce the burden.
"It's a challenge to keep the water and sewer going and protect public health," Storer said. "It's good to have someone available to answer these kinds of administrative questions."
Kielty said the mediation process can be limiting -- and hard on her schedule. "It's an informal, voluntary process," Kielty said. "It generally takes a little bit of time."
There have also been more involved requests, like that of Simpson, who runs Cumberland-based MacImage of Maine. The company operates a website that sells access to certain records related to real-estate transactions.
Simpson obtains some of the information for his website by copying it from a free section of the Hancock County Registry of Deeds website.
He sought Kielty's help when the county billed him $5,035 for the records -- even though it had incurred no expenses because he copied the records himself off the Internet.
In a Nov. 8 email, he suggested that Kielty issue an advisory opinion on whether an agency can charge copy fees to someone who makes their own copies, or can effectively compel someone to use and pay for agency resources to make copies of records that are readily accessible.
Simpson contacted Kielty again on Dec. 10 and Jan. 10, letting her know that the invoices from Hancock County were piling up. He said Kielty told him she would contact the county, but she never got involved, and he now has bills from the county totaling $14,501.
"My understanding was if she came down on one side or the other, she was supposed to be coming down on the side of freedom of access," Simpson said. "She's certainly not an advocate, or at least wasn't with me."
Timothy Feeley, a spokesman for the Attorney General's Office, said Simpson's case was not the kind of case that Kielty could resolve with an advisory opinion.
"This was a situation that required an interpretation beyond the scope of the FOAA law," said Feeley, who responded at Kielty's request.
In another case, involving a Portland computer services firm called The MacSmith, Kielty made a more favorable impression.
For months, the company has had trouble obtaining education department email records relating to laptop service contracts on which it had bid.
The MacSmith turned to Kielty in February, after a Department of Education official, Jeff Mao, said he lost emails that are public records -- only to find them eventually on a private backup drive at his home.
After investigating, Kielty wrote a scathing letter to Education Commissioner Bowen on March 1, saying that Mao "has taken an unreasonably long amount of time while he wandered from excuses to blame, finally arriving at a confession of his own technological blunder."
Mao's credibility has suffered, Kielty wrote, "and his ability to ensure that state government records are retained and maintained as required by law is subject to question."
The company said it was happy with Kielty's work.
"We still don't have the information we need, but that's not her fault," said Kerry Charles, a spokeswoman for The MacSmith owner Stan Smith. "Within the confines of her powers, she did a great job. But clearly, the amount of responsibility, power, all that she could do, could be increased."
Still another opinion is held by Ken Capron of Portland, who emailed Kielty after he thought the University of Southern Maine was holding back documents related to the community radio station it runs. Capron said he didn't think Kielty was aggressive enough in resolving his request.
But he doesn't necessarily blame her, saying she doesn't have enough power for his liking.
"I think she's following her mandate well, but I think the Legislature needs to say, 'We need open government,'" he said. "They need to say, 'Go get 'em.'"
CAN OFFER ONLY ADVISORY OPINIONS
Davis, the Missouri journalism professor who studies public access, points out that an ombudsman's work largely reflects how state law defines their authority.
"You could have the best ombuds-person in the world in a bad structure and they're not going to do a very good job, because they're going to get stymied at every turn," he said.
Kielty presides over a one-person division, with a two-year budget of less than $140,000. That contrasts sharply with states such as Connecticut, which is seen by many as the gold standard in the field. It established its ombudsman's office in 1975 and now operates the program under a five-person board, with a budget in fiscal 2012 of nearly $1.8 million.
The Reporters Committee for Freedom of the Press found in 2011 that 19 states have ombudsman agencies or officers to deal with public access issues. Among those states, more than half the ombudsmen can't issue binding opinions, the committee found.
Maine's ombudsman is a part of that group. Kielty only has the authority to offer advisory opinions, if requested. She cannot compel citizens or agencies to submit to mediation.
Davis said mediation, while important, shouldn't be an ombudsman's most forceful tool.
Mal Leary, a journalist and member of the state's Right to Know Advisory Committee, said open-records advocates wanted the Legislature to give the ombudsman more power but had to compromise and settle for limits when the position was created.
"That's what we were able to get the votes to do," he said.
IN THE FUTURE: 'LOTS OF POSSIBILITIES'
Kielty's first report to the Legislature is due Friday, and she said she didn't want to divulge details before its release. However, she said that in the near term, a main goal will be to create a town-by-town directory of public access officers. A 2011 law requires every agency, county, municipality, school district and regional or other political subdivision have an employee designated to respond to information requests.
If that's done, Kielty said, she can focus access-law training toward those people and if the information is public, citizens will virtually always know where to go.
"That's the kind of advocacy I can foresee right now because we've got things that we could do that we haven't done yet," she said.
But she said that in the long term, digitizing state records that are now kept on paper or in difficult-to-access digital forms will be necessary to enable agencies to respond more quickly to records requests.
"If the quantity of information continues to grow and the requests continue to grow, can the systems in place -- that are primarily paper systems -- really meet that?" she said. "There are lots of possibilities probably for putting information that's public on a website."
Leary, the journalist, and Judith Meyer, a journalist at the Lewiston Sun Journal and member of the right-to-know advisory panel, said they expect the ombudsman job to evolve with time.
Meyer said Kielty's mission now is simple: "She tries to work with people to try to reach an understanding," she said.
For Earl Brechlin, editor of the Bar Harbor-based weekly Mount Desert Islander and president of the Maine Press Association, Kielty's appointment was an important step in improving the right-to-know culture in Maine.
He said some may be expecting too much of the ombudsman right now.
"Some people think it's going to be an arrangement where you're going to call her and she's going to take the fall for you," Brechlin said. "It's different when you're an ombudsman and not an activist. Those two terms aren't necessarily interchangeable."
State House Bureau Writer Michael Shepherd can be reached at 370-7652 or at