Legislators on Wednesday expressed support for repealing a law that allows police agencies in the state to withhold information about whether they use powerful surveillance tools to investigate crimes.

Some members of the Criminal Justice and Public Safety Committee still have time to register their votes, however, so the outcome is not assured.

If approved by the full Legislature and signed by the governor, the bill would remove a provision of state public records law that was enacted in 2013 and prohibits police agencies from publicly confirming or denying the existence of confidential intelligence or investigative record information.

The bill was proposed by Rep. Charlotte Warren, D-Hallowell, after a February Maine Sunday Telegram report showed that police used the law to stymie requests for information that could have revealed whether the police are using powerful facial recognition technology and cellphone interceptors – two means of surveillance that have alarmed privacy advocates as they have proliferated around the country in recent years.

Action on Warren’s bill was delayed when the COVID-19 pandemic halted the legislative session.

Members of the committee voted 4-3 Wednesday to send the bill, L.D. 3227, to the Legislature for a vote. However, six members of the committee, including all of its Republicans, were not present for the vote and have until noon Thursday to register their votes.

Joining Warren in supporting the measure were Rep. Janice Cooper, D-Yarmouth, Rep. Pinny Beebe-Center, D-Rockland, and Rep. Victoria Morales, D-South Portland. Opposed were Sen. Susan Dechambault, D-Biddeford, Sen. Michael Carpenter, D-Houlton, and Rep. Anne Carney, D-Cape Elizabeth.

Maine is one of two states that has a special provision in state law that carves out the so-called Glomar response to neither confirm nor deny a piece of information, according to research by the ACLU of Maine. The name Glomar is taken from a research vessel that was used by the CIA during the Cold War in a secret mission to recover a sunken Soviet submarine. A public records request by a reporter about the covert operation generated the first use of the “neither confirm nor deny” language by a government entity.

The provision placed in Maine law has been cited as a reason to withhold information about what type of technologies state police are deploying, how much money is being spent on the technologies, and what policies are in place to prevent misuse and protect the privacy of innocent people.

The Maine State Police have in the past tested the use of facial recognition scans, which map an individual’s facial features and use them to identify people similar to fingerprints.

After the Telegram article was published, Public Safety Commissioner Michael Sauschuck  acknowledged for the first time that state police use facial recognition scans as part of some criminal investigations, although the agency relies on help from out-of-state agencies to run the scans.

He defended the practice, saying the agency does not use the technology to “conduct ‘surveillance’, ‘spying’, tracking or monitoring of the general public or individuals not suspected of criminal activity.” He did not provide written policies about its use, but stressed that police only conduct facial recognition searches after a crime has been committed and a suspect’s image was captured by a home or commercial security system.

In addition to their potential for tracking citizens, facial scans have been found in studies to have higher error rates when applied to people of color, women and transgender individuals, raising concerns that those people are more likely to be misidentified as criminal suspects. Those concerns are part of why Portland’s City Council is considering banning use of facial scans by city police and other municipal agencies. Portland police have said they do not use the technology.

The Maine State Police mounted a last-minute effort to amend the bill this week, and worked on Tuesday night with legislators and the Maine ACLU to craft language that would still repeal the Glomar provision while also providing an explanation in statute for when police could deny a request for information. The amendment also provided a fast-track appeals process to challenge records denials in Superior Court.

State Police Major Chris Grotton acknowledged that his agency was comfortable with a straight-up repeal of the Glomar law as originally proposed. The amendment, he said, was to provide the public with more explanation when they bump against a records denial.

“What we think this does is establishes a rubric that everyone can read and understand, so when our response in the future is that, ‘I’m sorry, we can’t release this because this involves confidential information protected by statute,’ that folks can read the statute, they can read this new language, they understand why we’re saying this,” Grotton said. “What we don’t want is to provide that response, which we all agree would be appropriate in certain limited circumstances, and to have the reader or someone on this committee feel like we’re not making an appropriate decision or not being clear with folks.”

State police attorney Christopher Parr gave a few hypothetical examples of how the public might suffer undue consequences if the agency’s amendment was not adopted.

If someone who was under investigation but not yet charged asked police for all records about themselves, police would have to confirm the existence of the investigative records, potentially compromising the investigation, even if they are still permitted to withhold them under other provisions of state FOAA law.

Similarly, if someone was investigated but cleared of wrongdoing, a future employer requesting records on that person might learn that some investigative records exist, casting them in a poor light, Parr argued, even if the records could not be released.

But the police amendment was unnecessary, argued Meagan Sway, policy counsel for the ACLU of Maine. Maine’s public records law already provides for a host of exemptions to disclosing documents, including in instances where investigations for the safety of police or others may be placed at risk if records were to be released. Sway argued that the entirety of the state’s Glomar provision is unnecessary, as case law already controls when the response is appropriate.

“There’s no federal statute, there’s no state statute in 48 other states, and they all seem to be functioning just fine,” Sway said. “If we did put this into statute, we’d join Indiana as the only other state that put these factors into law.”

The three members who opposed passing the bill said they were in favor of the state police amendment.

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