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

(Continued from page 2)

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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.

"Sometimes you get this notion from a few of them that government would work a lot more smoothly and efficiently if it didn't have to worry or bother with public reactions to what they're doing, or public accountability," he said. "For some of them it's as if they believe, 'we could get a lot more done if we were just allowed to do things in secret.' "


Transparency and open government are now buzzwords for politicians who recognize the populist value of lifting the veil on government business -- at a time when opinion polls repeatedly document the contempt many citizens have for elected officials.

LePage vowed to have the most transparent administration in state history when he ran for governor in 2010. He devoted an entire page of his campaign website to the policy endeavor.

"Every Maine citizen has a right to know what government is up to," the site read. "He will fight for stronger laws to protect and expand Maine citizens' right to access information from state and local government. When Paul is Governor, open government will be a reality, not a talking point."

LePage has taken several steps to increase government transparency. He signed a law to close a disclosure loophole that allowed lawmakers and state officials to profit from state-paid contracts. He recently unveiled Open Checkbook, a site that allows the public to track government spending.

And he funded the position of ombudsman in the Attorney General's Office to mediate disputes over public records access between citizens and government.

But it's unclear what the ombudsman has accomplished since the position was filled in September.

Leary, at the freedom of information coalition, said LePage has been an "enigma" on the public's right to know. In 2011, LePage created a work group of business leaders and, through executive order, exempted the meetings from the public-access law.

Last year, LePage claimed that political opponents and some news organizations were using the state's FOAA law as a form of "internal terrorism," inundating his administration with "nuisance" records requests, including one for the Blaine House grocery bill.

The governor later said that such requests were behind his proposal to exempt his administration's "working papers" from public-disclosure requirements, including correspondence related to potential legislation and policy matters.

The proposal was soundly defeated. However, LePage later told Leary, who was the owner of the Capitol News Service at the time, during an interview that he'd instructed his staff to limit its use of email and written correspondence to avoid the Freedom of Access Act.

Leary recalled the interview, saying, "He told me, 'They can't FOAA my brain.' "


Public officials frequently lament that they're inundated with public-records requests, some of which can be used to embarrass them. Some contend the requests are too broad and time-consuming.

The Sunlight Foundation's McCann said government officials should worry less about the intent of public-records requests and more about finding ways to make the information readily available on the Internet.

She noted that states such as Utah are considering proposals that would make it easier and cheaper to access public records information using technology.

"Understanding that public information should be online reduces the burden on everyone," McCann said. "It should also take care of a lot of costs."

Other states have been more aggressive in moving toward transparency.

In North Carolina, a lawmaker recently introduced a bill that would criminalize an illegal denial of public records, with a $200 fine and up to 10 days in jail. It's unclear if the bill has much traction, but it's a stark contrast to efforts in Maine where, as Schutz noted, there are few penalties or other disincentives for violating the open records law. It's also expensive to challenge rejected requests.

"You have to go to Superior Court," Schutz said. "If you go to court there's no way to recover legal fees. There's no real strong incentive or remedy."

The prospects for improved transparency in Maine appear to be dim.

Open-records advocates had hoped to focus their energy in the current legislative session on beefing up public access. Instead, at least in the case of the concealed-weapons bill, they're struggling to keep records in the public domain that have been there for 32 years.

Complicating the debate is the sense of emergency -- real or not -- and the highly polarized positions surrounding the issue of guns.

Bunting, at the National Freedom of Information Coalition, said bad things happen when decisions that affect transparency are made in such a charged atmosphere.

"As a rule, when an open-records law is amended in response to an uproar, it's usually not good for the law," he said. 

Steve Mistler can be contacted at 620-6016 or at:


On Twitter: @stevemistler


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Today's poll: Public access

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



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