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This is what transparency looks like under the Alfond-Eves Regime

Sen. Rebecca J. Millett and Rep. W. Bruce MacDonald, Democratic co-chairs of the Education and Cultural Affairs Committee

Transparency and accountability are core functions of government. Democracy does not equal self-government when elected officials can thwart routine journalistic inquiry into the activities of government. The following story paints an alarming portrait of what passes for transparency and accountability these days in Augusta.

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The saga began on May 8 when top Democratic lawmakers assembled at the State House for a press conference. The event was billed as a chance for the Democrats to unveil their response to Gov. Paul LePage’s A-F school grading program.

“Time and again, Governor LePage’s words don’t match his deeds,” said Sen. Rebecca Millett, Senate Chair of the Education Committee.

The Democratic plan amounted to a one-page series of bullet points containing no complete sentences and a vague concept. It bore the marks of being thrown together in haste, without much forethought. It was clearly intended as a mere accessory to the press conference, which was called in order to cast aspersions on the governor’s intiative.

At the end of her remarks, Millett and House Chair of the Education Committee Rep. W. Bruce MacDonald (D-Boothbay) opened the floor for questions. My question was simple: “How long has the Majority been working on their school grading plan?”

Here is a transcript of the exchange that followed:

The Maine Wire: “How long has the Majority been working on their grading system?”

Millett (whispering to MacDonald): “It’s not a grading system.”

MacDonald: “First of all, we don’t look at the initiative we’re putting forward as a grading system, um. It’s, we consider it quite ironic actually that in the state, in this state, we have moved towards a proficiency based system of learning for our students in K-12, which are, the results are not measured in a grade A through F rather they’re measured, measured whether or not one is proficient in learning what is being taught, and we think that a proficiency based, more of a proficiency based-“

TMW: How long has the plan been in development though?

MacDonald: One question, okay. More of a performance-based um system is what’s more appropriate for the state of Maine at this time.

TMW: And how long has this been in the works?

MacDonald: I said one question, okay?

TMW: You didn’t answer my first question. My first question was how long has the majority been working on this?

MacDonald: “I answered satisfactorily. Next question…

After Millett and MacDonald answered some questions from other reporters, Paul Merrill of WMTW Channel 8 spoke up.

Paul Merrill: Will you answer the question about when you guys started formulating this plan?

Millett: I think we said one more question and we’re wrapping up, thank you very much.

WMTW: That’s a fair question and I think it says something that you guys won’t answer it.

After the press conference, I approached MacDonald and asked him again, off camera, how long the Democrats had been working on their plan. Before he could answer, Jodi Quintero, communications director for the House Speaker, literally dragged him away. Several nightly news programs highlighted the fact that Democrats would not say how long they had been working on their plan.

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The following Friday Senate President Justin Alfond (D-Portland), who was present for the press conference, went on the George Hale & Ric Tyler radio program and said the Democrats had been working on their plan since January, when LePage unveiled his intention to evaluate schools in his State of the State Address. Somehow that answer eluded all the Democratic lawmakers on the day of the press conference.

Though my question seemed simple, it shot to the core of the issue: Were Democrats sincerely proposing an idea to improve education for our children? Or were they playing political games in a cynical attempt to discredit the governor? To answer these questions, I submitted a Freedom of Access Act request on May 14, 2013, and that’s when the stonewall saga really began.

As I would eventually learn, this was the first time Democratic lawmakers in the 126th Legislature had ever received a Freedom of Access Act request – a glaring indictment of Maine’s old guard media, which has submitted hundreds of similar requests to the LePage administration and Republican lawmakers.

My request was simple. I asked for all communications, written or electronic, that the Democratic lawmakers and their staff had exchanged regarding the governor’s A-F plan and their own school evaluation plan. The request was delivered to Alfond, Millett, MacDonald, and House Speaker Mark W. Eves (D-North Berwick), who was also present for the conference.

In other words, I asked four lawmakers and their staff for any emails regarding one bill and one executive policy. The idea was that if the Democrats had been working on their plan since January, as Alfond claimed, then there would be at least a few emails from that time period to vindicate his claim.

I received a response from Ana Hicks, formerly of the left-leaning Maine Equal Justice Partners, but currently chief of staff to the House Speaker, on May 20, notifying me that the Speaker had received my request. She wrote, “At this time, we cannot estimate the cost of compliance, though it is anticipated that the cost of this request will exceed $20.00. We have asked all employees to track their time and number of copies made.  As soon as we have an estimate of the cost we will let you know.

On May 20, I wrote Hicks back requesting that the fees be waived as I am a member of the press. This is a common practice and I do it with all of my requests. I wrote, “The records disclosed pursuant to this request will be used in the preparation of news stories for dissemination to the public. Accordingly, I respectfully request that you waive all fees in the public interest as the furnishing of the information sought by this request will primarily benefit the public and is likely to contribute significantly to public understanding of the operations or activities of government.”

Neither Hicks nor anyone in the Democratic offices responded to my waiver request. Nor did any Democratic representative ever provide a cost estimate. Instead, my attempts at routine inquiry were delayed, blocked and ignored for the entire summer.

On July 2, I followed up with Hicks, asking for a status update on my request. No response. On July 9, I followed up again. Hicks responded as follows: “Thank you for your email.  I wanted to give you a brief update regarding your FOAA request.  We referred your request to the Legislature’s information technology office (IT), which was recently able to spend the approximately 20 hours running its initial search.  IT anticipated that its search would yield over 10,000 e-mails, which are currently being reviewed by the parties identified in your letter for relevance.” She added, “We expect to be complete with this review this week and to be able to forward you relevant communications, per your request.” (Emphasis added)

(I would later learn that staff in the IT department advised Hicks that lawmakers should be capable of fulfilling these requests on their own, and that IT is usually not consulted for routine requests.)

On July 11, I received another message from Hicks: “Unfortunately we will not have a response to your FOAA request by tomorrow.  We are currently working through your request and will get something to you next week.

I heard nothing from the Democratic offices for eleven days and followed up again July 22. No response.

On Aug. 1, I followed up again, this time expressing some concern. Nearly three months had passed and the Democratic offices had yet to produce a few emails. I wrote, “I am writing to follow up on my Freedom of Access Act request from May. Has any progress been made toward fulfilling this request? I feel as though a reasonable amount of time has passed for me to be concerned as to whether this request is being honored. Please advise.” No response.

On Aug. 2, I followed up again, more clearly expressing my concern:

“I am writing to follow up on a public records request I submitted back in May in regards to a school evaluation proposal. After speaking with staff in the governor’s office, I have been informed that their office routinely processes Freedom of Access Act requests more expansive in nature in 2-3 weeks. In no instance have requests gone unfulfilled for more than two months, as has been the case with my request. This fact has only added to my concern as to whether the House Speaker and Senate President’s offices intend to comply with Maine’s governmental transparency laws.

“Your earlier communications indicated that the request was nearly fulfilled. Yet much time has passed since then. I am rather befuddled at the extraordinary length of time that has transpired between the submission of a simple public records request and the honoring of that request.”

On Aug. 12, ten days later, I received my first message from Alysia Melnick, formerly of the Maine Civil Liberties Union, but currently chief legal and policy counsel for the Speaker’s Office. (The House Speaker is the only lawmaker with an attorney on staff.) So began the second stage of the stonewall saga.

In her letter, Melnick said the documents responsive to my Freedom of Access Act Request were ready for me to pick up in the Speaker’s office. She said that preparing these documents “consumed considerable time and resources.”

Between the offices of the Speaker of the House, the President of the Senate, and Information Technology, responding to your request required 99.5 hours of staff time, for a total of 95.5 hours of billable time,” she wrote.

If it’s surprising that it took Democratic staffers more than two full work weeks to respond to a public records request, the price tag was even more shocking: $1,432.50.

To be clear: Eves, Alfond, Millett and MacDonald asked me to fork over $1,432 for some emails.

This letter from Melnick surprised me for two reasons.

First, despite saying in May that they would provide a cost estimate, as is required by statute, the Democrats instead executed the request and provided a bill. I had never encountered anything like this with any other public record request. No government agency operates in this manner.

Second, the amount of time and the price do not even come close to passing the straight face test. If the Democrats’ staffers really need to spend almost 100 hours trying to find some emails, then they should probably hire more productive personnel out of respect to the taxpayers.

The cost of the request was also outrageous considering I pay income taxes to fund these staffers’ salaries and transparency is a primary function of any good government. To put the cost of getting a couple of emails from the Democrats in perspective, consider what other state agencies have charged for much, much vaster requests:

Community College System: Requested all payroll and vendor payment data in February. Records received on August 28. No charge.

Maine Turnpike Authority: Requested all payroll and vendor payment data on July 2. Request responded to July 3. Records received Aug. 27. No charge.

Maine Public Employee Retiree System: Request for data related to all recipients of public pensions submitted on Aug. 2. Responded to Aug. 14. MPERS estimated on Sept. 6 a cost of no more than $100 and less than two weeks’ time. Documents received on Sept. 27. Final cost of $75.

Maine State Housing Authority: Request for payroll and vendor payment data submitted in February. MSHA responded with request for advanced payment of $450. Amount was paid in advance and records were received May 6. These records included: 12 Excel files detailing every Section 8 Housing Voucher payment in the state of Maine, all wage and benefit data for MSHA employees, and a list of every dollar MSHA spent on external vendors. Additional cost of this request equaled $603.75, for a grand total of $1053.75. Total hours spent on this request equaled 71.25 hours.  Another request for emails related to a conflict interest with a MSHA board member was submitted on July 2. Received 84 pages of emails responsive to request on July 18. No charge.

From the examples provided above, you can see why it was shocking that Democratic staffers would spend nearly 100 hours gathering emails and ask me to pay almost $1,500 for their efforts. Not only did the Democratic staffers fail to honor their promise that they would provide a cost estimate, as is required in the law, and as is typical with all other governmental entities, they also spent more time looking for emails than MSHA spent gathering records of every single dime for which they are responsible. Clearly something was amiss.

The Democrats’ decision to charge me such an exorbitant amount of money to bring transparency to the operations of government presented an obvious problem: a non-profit journalism outfit cannot swallow those kind of operating costs. The larger problem, however, was that partisans in the State House could easily obfuscate the activities of the press by artificially inflating the cost of public record requests, thus rendering routine investigations into the activities of government cost prohibitive. But the high price told me one thing for sure: The Democrats did not want me to see those records.

To learn more about why the public record request cost so much, I attempted to contact Melnick. After leaving three voicemails, none of which were returned, I contacted Brenda Kielty, Maine’s first Public Access Ombudsman. She kindly agreed to work informally with the Democratic offices to see if we could agree on a more reasonable price.

After Kielty reached out to the Democratic offices, I received a phone call from Melnick. We discussed the public records request and she agreed that the process was atypical of other requests. I asked her if the Speaker’s office typically charges other media outlets for public records. She told me – and I was shocked to hear it – that this was the first request she had worked on, the first request the Speaker had ever received. (In other words, Maine’s old guard media never attempted to – or never had to – submit public record requests to arguably the most powerful legislator in Augusta.) Melnick told me she would consult with her office and see if they could reduce the asking price.

A few days later I received a message from Melnick. On Sept. 24, she wrote: “Pursuant to our phone conversation and your concerns that you were not provided an updated cost estimate once it appeared that fees would well be in excess of 20 hours, we have decided to provide a one-time reduction in fees.  We are reducing by 30 hours the 99.5 hours of staff time accrued fulfilling your request … As required by 1 M.R.S.A 408 -A(8), at a rate of $15/hour, the cost for 69.5 hours comes to  a total of $1042.50.

The amount was still absurd and far exceeded anything I had been asked to pay for emails, including the MSHA request. In response, I requested a line item of the time Democratic staffers had spent processing the request. That was also on Sept. 24.

On Oct. 7, I received a message from Melnick. She wrote, “After consulting with the [Attorney General]’s office about your follow up request, at this time I can provide the following information about hours spent responding to your FOAA related to the school grading legislation.” (Note: MacDonald and Millett would remind her that the Democratic plan was not “grading” legislation.)

According to Melnick, staff time spent on the request was as follows: Senate, 43 hours; House, 48 hours; IT, 8.5 hours; for a grand total of 99.5 hours. (I have requested but have not received a further breakdown of how much time has spent on each of the four requests.)

She further explained: “As I had said in a previous email, in addition to the four hours of time provided without cost pursuant to statute, we are also comfortable waiving the hours spent on copying, the cost of copying, and an additional 30 hours based on the concerns that we hadn’t provided an interim estimate. … The fees therefore have been reduced to a total of $982.50 … $1432.5 – $450 = $982.50 (Note – this is a corrected total).

A few things worth noting: First, I requested that the records be delivered electronically, so printing and copying costs are irrelevant. Second, according to Melnick, the Legislature’s IT department spent 8.5 hours working on the request. This was surprising, considering that Ana Hicks, who originally handled the request for the Speaker’s office, told me in July that IT spent approximately 20 hours on the request. Why did the original figure (and this was not a prospective estimate; this was an approximation of work that had allegedly already been done and logged) more than double the actual? Furthermore, how could I have any degree of faith that the time estimates provided for the House and the Senate were not also similarly exaggerated?

* * *

As things stand now, we will never know exactly how much time the Democrats spent on their education proposal. They would not answer my questions at a public press conference. Staffers prevented them from answering my questions in more private conversations. The lawmakers themselves will not respond to my emails. Their comprehensive effort to obstruct routine journalistic inquiry has been very successful. No news outlet can afford to pay thousands of dollars every time they need public records.

This ordeal may seem like a trivial matter. It’s just some emails about a bill that was never passed. So what if the Democrats held a press conference merely to attack the governor. So what if the proposal, which would have affected every single public school student in Maine, was merely a prop in a larger partisan game. So what if Alfond lied about how much time the Democrats spent on the bill. So what if Democratic staffers are lying now about how much time they spent on the request. Right?

Lawmakers hear no evil, speak no evil and see no evil.
Lawmakers hear no evil, speak no evil and see no evil.

I submit that the larger problem is the ability – and willingness – of elected officials to block journalistic inquiry for capricious and partisan reasons. While they may certainly be obeying the letter of the law, their actions fly in the face of its spirit.

Imagine for a moment the howl that would have gone up at the Kennebec Journal if the LePage administration wanted to charge Colin Woodard thousands of dollars for the extensive and complex inquires he submitted when working on his story on the Department of Environmental Protection. Imagine the stink that would have been made at the Portland Press Herald if the LePage administration waited four months to provide Steve Mistler with emails related to LePage’s meeting with Department of Labor employees.

Can you even imagine the fuss the old guard media would make if their attempts to bring transparency to the activities of government were obstructed at every turn by unresponsive bureaucrats, exorbitant costs, and unreasonable delays?

* * *

The Maine Wire has submitted several Freedom of Access Act requests for communications from the Senate President and House Speaker’s office regarding one of the most important pieces of legislation in the 126th Legislature: Medicaid expansion. Our request includes all communications between the offices of the Democratic leaders and the following: Maine Equal Justice Partners (MEJP), Maine Center for Economic Policy (MCEP), Maine People’s Alliance (MPA) and the Centers for Medicare and Medicaid (CMS).

The first three requests are intended to show how, if at all, outside special interests are working with elected officials to push for Medicaid expansion. All three of these groups have publicly supported expanding Maine’s medical welfare program and all three lend significant support to Democrats in the State House. As for CMS, this is the federal agency responsible for administering Medicaid. This request is intended to show how the federal government has communicated with Democrats on Medicaid expansion.

What happens when we are able to get a public record request from the Democrats? You saw it last Monday, when The Maine Wire reported exclusively that House Speaker Mark Eves may have misrepresented his professional relationship with Sweetser, a non-profit school that would benefit hugely should Eves’ push to expand Medicaid prevail. This small request was given freely, but other, more substantial requests have met roadblocks similar to those detailed above.

But we have the solution!

To promote and protect the ability of The Maine Wire to conduct routine journalistic inquiry into the activities of government, we have now formed the Transparency Fund. All donations made to the Transparency Fund are tax deductible and can be made via CrowdRise, a secure online fundraising tool. (For more information about CrowdRise, click here.)

All donations will be used judiciously to acquire records the public deserves to see.

Our offer is a simple one: Donate to the Transparency Fund if you would like to read Justin Alfond and Mark Eves’ emails!

The Maine Wire is not owned by wealthy leftists like the Portland Press Herald.

The Maine Wire is not supported by tax dollars like Maine Public Broadcasting Network.

The Maine Wire depends on generous contributions from people who are fed up with tax-and-spend politicians and the liberal media that protects them.

Steve Robinson