February 2

Analysis: Requesting public records in Maine can be frustrating

Our right to access public records counts for little if state officials misunderstand – or choose to ignore – it.

By Eric Russell erussell@pressherald.com
Staff Writer

When Gov. Paul LePage refused to release a taxpayer-funded consultant study on Medicaid expansion last month, he was willfully violating Maine’s Freedom of Access Act.

He admitted as much when reporters asked him about Attorney General Janet Mills’ letter advising him to comply with the law and release the report. “Tell her to sue me,” he said flippantly, knowing that the report would be public long before a lawsuit could be filed, much less resolved.

For all of her authority, Maine’s top lawyer has no power to compel the governor to comply. Only a judge can do that, and only after someone decides to take the matter to court.

And therein lies the problem.

Despite recent improvements to Maine’s 55-year-old open records law, there are still deficiencies when it comes to compliance. In some cases, it’s fueled by an attitude of secrecy. In others, it’s simply a function of state employees not understanding their responsibilities when it comes to records.

“The machinery of government hums on records,” said Dave Cheever, the state’s archivist. “How you keep them and how you access them is extremely important, and we have a lot of work to do.”

Some state officials say there have been improvements in recent years, most notably the creation of a public access ombudsman to field complaints and settle disputes. They also say that some of the problems stem from a high volume of record requests and the complexity of some of those requests.

But open records advocates say complying with requests is still overly burdensome and officials use vagaries in the law to drag their feet and obstruct.

In the middle of that divide is the public, which just wants to be able to trust government by knowing what it’s up to.

LePage’s refusal to release the consultant report – coupled with another recent case in which a former Maine Center for Disease Control employee was ordered to destroy public documents because of a pending records request – erodes that trust.

Still, improving the Freedom of Access Act further is an uphill battle. Lawmakers always favor open government when they are campaigning – LePage, for example, pledged to lead the most transparent administration in history – but when it comes time to govern, that stance shifts.

Judy Meyer, vice president of the Maine Freedom of Information Coalition and managing editor of the Sun Journal in Lewiston, said if nothing else, people are starting to pay more attention to the power of public records.

“They are saying: ‘I care about what my government is doing,’ ” she said. “And that’s good.”


In 2012, Maine hired its first ever public access ombudsman, Brenda Kielty. Eighteen other states have similar positions.

Kielty’s job is to mediate any disputes relative to the Freedom of Access Act and offer any advisory opinions. In her 16 months on the job, Kielty has never written an opinion.

She has, however, logged nearly 400 complaints, inquiries and suggestions in that time and characterized the bulk of her work as pre-emptive.

“More and more, people are coming to me hoping to avoid a FOAA problem,” she said.

Kielty also helps trains state employees on their responsibilities, which are becoming more complex because of the high volume of electronic information that now exists.

Cheever, the archivist, said the broader question is: How much is required to document a government process and how can those records be retained in a way that makes them retrievable?

Secretary of State Matthew Dunlap agreed.

“If we don’t address this in an effective way, we risk losing the information of our age,” he said. “If you don’t keep the record, you can’t be accountable, good or bad.”

(Continued on page 2)

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