By Eric Russell
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.”
SOMEONE TO WATCH OVER FOAA
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.”
In addition to the creation of an ombudsman position, there have been other improvements to the Freedom of Access Act in recent years.
Every state, county and municipal agency is required to appoint and train a designated “public access officer.” A list of those officers is available on the state’s FOAA website.
Additionally, if fulfilling a request is going to cost more than $30, an agency must provide a good-faith estimate of the full cost, as well as an estimate for how long it will take to fulfill the request.
Finally, there is a requirement that any time a request is denied, an agency must cite by statute the reason for the denial. There are several hundred exemptions carved out, including health and other personnel records and information that would compromise criminal investigations.
Even those can be challenged, though.
Last year, the Portland Press Herald/Maine Sunday Telegram successfully sued the state over access to 911 calls and transcripts, which had always been withheld because they related to an investigation.
COURT IS ONLY RECOURSE
Despite those improvements, open records advocates say problems still exist.
Kenneth Bunting, former director of the National Freedom of Information Coalition, said LePage’s refusal to release the consultant report was “emblematic” of what is wrong with state and federal public disclosure laws.
“When public officials decide to place themselves above the law, citizens have no other recourse besides costly litigation,” he said. “That’s a weakness that needs to be addressed.”
In Connecticut, there is an entire panel of people who hear grievances about failure to comply with records laws. The commission hears hundreds of complaints every year and has the authority to direct agencies to turn over documents.
In Maine, there is no such recourse unless someone sues. Even then, the only penalty is a judge ordering the release of the documents.
Besides, litigation is costly.
Cost remains a barrier to access. An official must provide a cost estimate if the amount exceeds $30. Some FOAA estimates received by Maine journalists have stretched into the thousands of dollars.
Media organizations have resources to pay for documents, but members of the public often do not. If a state agency responds that fulfilling a request is going to cost someone $500, it might be just enough of a barrier to keep the document in question a secret.
Meyer said sometimes the most effective strategy at the Sun Journal when requests are not fulfilled or when the cost is exorbitantly high is to write about it.
She recalled an instance several years ago when her paper was trying to get data from the Department of Health and Human Services and kept getting stymied. Meyer ended up writing a column about the failed process that ran in the Sunday paper.
The next day, then-Gov. John Baldacci directed staff members to turn over the records.
“We had to go public with being denied, but that is a luxury the guy on the street doesn’t have,” she said.
That is where Kielty is supposed to come in, but as defined, she cannot issue orders.
Attorney General Mills, Kielty’s boss, said she thinks the ombudsman position is strong and effective and doesn’t need to change despite some suggestions that Kielty could be more effective.
“I’m not sure we need to tell her to be a cop, too,” Mills said.
DRAWING THE LINE
The document destruction case involving the Center for Disease Control is an interesting case study in public records.
The employee who says she was ordered to destroy documents, Sharon Leahy-Lind, has said that her supervisors were wary of releasing them to the public.
Willful destruction of public records is a Class D crime, but as Assistant Attorney General Linda Pistner told lawmakers at a hearing last month, proving intent is difficult.
“If you don’t have obligation to retain ... We throw out things every day,” she said. “How do you draw the line?”
Leahy-Lind has stepped down and is suing the state. Whoever allegedly ordered the document shredding has not been disciplined.
William Boeschenstein, chief operating officer of the DHHS, which oversees the CDC, testified Jan. 9 that the employee who ordered the documents destroyed was not someone “new to the department.”
Asked whether there was a policy in place on retention – the length of time documents are supposed to be kept – Boeschenstein said he was unaware. Asked whether the CDC had an assigned records officer, which it is supposed to, Boeschenstein said he didn’t know.
He acknowledged that the situation was handled poorly and said better education for employees will ensure it doesn’t happen again.
Hyde Post, president of the National Freedom of Information Coalition, said the public should be skeptical about whether public officials are well versed in public records laws.
“Many certainly are, and are committed to transparency,” he said. “However, our experience is that too often public officials are not conversant with open records and meetings laws, particularly when they are moving from the private sector to public service.”
LePage often touts his own background in the business world, and many of his Cabinet appointees have come from that world, which means they could be setting the tone.
Meyer said she doesn’t buy the argument that state employees are not trained. She said the problem likely lies in their lack of interest in learning about the law.
In the CDC document shredding case, lawmakers were told that top-level managers were not aware of the agency’s document retention policy.
That is unacceptable, Meyer said.
RECORDS BELONG TO PEOPLE
Mal Leary, a veteran State House journalist and president of the Maine Freedom of Information Coalition, said lack of enforcement is perhaps the biggest deficiency in the state’s law.
Another problem, he said, is a vague definition of how quickly records requests must be fulfilled. The law says only that requests must be dealt with in a reasonable period of time that does not interfere with other duties.
That vague language allows some agencies to drag their feet without any repercussions, something reporters at the Portland Press Herald/Maine Sunday Telegram and other news organizations have experienced.
Leary, Meyer and others said the LePage administration still drags its feet when it comes to some records requests, in part because, well, it can.
Take the Alexander Group report on Medicaid expansion. Media outlets requested the document before it even was delivered. When the LePage administration received the report Dec. 16, additional requests were submitted and ignored.
Twenty-three days passed before the report was released to the public.
In her letter, the attorney general wrote that she didn’t think 23 days fit the definition of “reasonable amount of time” outlined in the law.
Leary said Mills was right.
“If it’s a document that is just sitting there, ‘reasonable’ should be immediately,” he said. “If it’s emails that have to be processed or retrieved, OK, that can take some time.”
Absent any changes to the law, Leary said the best thing to do is educate. To change the culture.
He gives the same speech every year before the Maine Freedom of Information Coalition.
He said reporters, and the public at large, need to remember and remind people often that public records of all state agencies and departments are not the property of those agencies.
They belong to the people, Leary said.
Eric Russell can be contacted at 791-6344 or at: