March 3, 2013

In Maine, 'sunshine' law's fate looks dim

Several bills are proposed that would further block access to government data, inhibiting the public’s right to know.

By Steve Mistler smistler@pressherald.com
State House Bureau

The public's access to government information is under attack in Maine.

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Paul LePage
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Gov. Paul LePage displays his concealed-carry permit in a photo posted to his Twitter account on Thursday, Feb. 14, 2013. Legislators will consider a bill to block access to personal information about people who hold concealed-weapons permits.


L.D. 345, sponsored by Rep. Corey Wilson, R-Augusta, which would block access to personal information about who holds concealed-weapons permits. The Legislature, invoking a constitutional emergency, has already approved a temporary shield to this information following backlash against a Bangor newspaper's plans to request the data for a reporting project. The temporary block was urged by Gov. Paul LePage, whose vow to have the "most transparent administration" in state history is juxtaposed against what one observer described as the governor's "enigmatic" record of open government.

L.D. 495, sponsored by Rep. David Burns, R-Whiting, which would give Maine State Police permission to withhold transcripts of 911 calls.

L.D. 104, sponsored by Rep. Mary Nelson, D-Falmouth, which would exempt from public disclosure the email addresses of residents who sign up to receive notifications from government organizations. Nelson's bill would also increase fees for requesting public records.

The Legislature will take up several bills this session that would further puncture the state's open-government law, snatching from public view information that is now considered part of the public's right to know.

If approved, the measures will reinforce Maine's national reputation as a place where transparency and government accountability rank behind privacy and other powerful interests.

The proposals include bills that would block access to information about individuals who hold concealed-weapons permits, allow police to withhold transcripts of 911 calls, and shield the email addresses of citizens who sign up to receive notifications from government groups.

If adopted, the proposals would lengthen the list of 483 exemptions that previous legislatures have already carved out of to the right-to-know law. Many more exemptions are woven into the governing statutes of various state agencies.

These exemptions, combined with a weak and costly appeals process for the denial of public records, and what some describe as a cultural reluctance to expose personal information collected by public officials, have positioned Maine as a state that does not value transparency.

"I don't think of Maine when people ask me which states are shining examples of sunshine," said Ken Bunting, executive director of the National Freedom of Information Coalition.

Sigmund Schutz, a Preti Flaherty media attorney whose clients include the Portland Press Herald and Maine Sunday Telegram, describes Maine's open-government law as "all over the place."

"It's good in some places, but really bad in others," Schutz said.

Maine's Freedom of Access Act, adopted by the Legislature in 1959, stipulates that all records are public so long as they are used in the transaction of governmental business. But through liberal use of rulemaking, state lawmakers have reduced "all" records to "some."

Open to public inspection are records such as tax assessments; visitor logs for state offices, including jails; the schedules of elected officials, including the governor, attorney general and the secretary of state; arrest logs; and transcripts of emergency dispatch calls.

But the Legislature has made myriad changes to the law to exempt documents from public view. Many exemptions have been made to protect personal identifying information during sensitive interactions with government, including information about who receives government assistance or data that could identify crime victims or impede police investigations.

Other exemptions are more arcane. One, adopted in 2001, shields the list of growers using genetically engineered plants. Another proved self-serving for state lawmakers, who voted in 1991 to shield their "working papers," or communications related to the drafting of legislation. Gov. Paul LePage, citing legislators' exemption, tried to obtain the same privilege in 2011, but the proposal was rejected.

Lawmakers periodically offer bills to strengthen the law, but those proposals face long odds, often traceable to the push-pull struggle between privacy and transparency.

Bunting, of the freedom of information coalition, said that unlike heavily populated states, Mainers' close proximity to their elected officials and their government may make them more inclined to let government and its records remain private, or in some instances become that way.

"In a state like Maine there is a shorter distance ... between the people and those city councils, school boards and lawmakers who see any liberalization of transparency laws as a threat," Bunting said.


Bills in the current legislative session that would seal off public access to government records include a measure sponsored by Democratic Rep. Mary Nelson of Falmouth.

An outspoken critic of Falmouth government used the open-records law to obtain about 3,000 email addresses of subscribers to the town's electronic newsletters. The critic used the addresses to distribute information during a campaign to end Metro bus service in Falmouth.

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Today's poll: Public access

Are you satisfied with the level of public access to government records in Maine?



View Results


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