UPDATE: Kevin Kelley, spokesman for the Independent Commission, has provided a statement to the Maine Wire clarifying that the Commission will be subject to FOAA upon the conclusion of their work and the release of their final report. Kelley’s statement is below:
While the order does exempt the work of the commission during the course of the ongoing investigation, the FOAA law would apply upon conclusion of the commission’s work. In addition, Chairman Wathen has pledged that, so far as practical, the commission intends to be as public as possible so long as it does not hinder its fact finding mission. The final report would also be public.
It is Chairman Wathen’s intent to organize a meeting of commission members as soon as possible, not only to establish a timeline for its work but, most important, to begin its assignment to investigate the facts of the tragedy.
The commission is committed to conducting as much work as possible in an open setting, while also being sensitive to privacy concerns, so that the people of Maine can see for themselves that each member is dedicated to pursuing the facts regardless of where they lead.
The Independent Commission to investigate the Oct. 25 mass shooting in Lewiston established by Gov. Janet Mills Thursday will not be subject to public records requests under Maine’s Freedom of Access Act (FOAA).
Under section three of Gov. Mills’ Nov. 9 Executive Order establishing the Commission, “Records, proceedings and deliberations of the Independent Commission are not subject to the requirements of 1 M.R.S. c. 13, in accordance with sections 402(2)(F), (3)(J) and § 403(6) of that Chapter.”
“To the extent practical, and to the extent that its fact-finding mission is not hindered, the Independent Commission should conduct its work in a manner that is open and accessible to the public,” the Executive Order reads.
Section 402(2)(F) of Maine’s FOAA determines that the definition of “public proceedings” apply to committees established by Executive Order by the Governor — unless the order “specifically exempts the organization” — which Mills’ Nov. 9 order does.
Under section 403(6), advisory bodies that make recommendations but have no decision-making authority are not required to publicly release recordings of their proceedings.
“As we have said, the complete facts and circumstances – including any failures or omissions – must be brought to light and known by all. The families of the victims, those who were injured, and the people of Maine and the nation deserve nothing less,” Gov. Mills and Maine Attorney General Aaron Frey wrote in a Nov. 8 letter to the Independent Commission members.
Despite writing that the people of Maine deserve the “complete facts and circumstances” of the Lewiston shooting, Gov. Mills has specifically exempted her Independent Commission from being subject to public records requests.
Mills and Frey — without approval from the State Legislature — appointed seven experts to the Independent Commission, five of whom are or were judges and attorneys, one is the former Chief Forensic Psychologist for the State of Maine, and one is a psychiatrist and medical director at the Northern Light Acadia psychiatric hospital.
Five out of the seven members are also registered Democrats.
The members of the Commission and their backgrounds are listed below:
- The Honorable Daniel E. Wathen, Chair: Former Chief Justice of the Maine Supreme Judicial Court;
- Dr. Debra Baeder, Ph.D: Former Chief Forensic Psychologist for the State of Maine;
- George (Toby) Dilworth: Former Assistant United States Attorney for the District of Maine and current Managing Director, Drummond Woodsum;
- The Honorable Ellen Gorman: Former Associate Justice of the Maine Supreme Judicial Court;
- The Honorable Geoffrey Rushlau: Former Maine District Court Judge and former District Attorney for Sagadahoc, Lincoln, Knox, and Waldo Counties;
- Dr. Anthony Ng, MD: Board-certified psychiatrist and medical director of Community Services for Northern Light Acadia Hospital
- Paula Silsby: Former United States Attorney for the District of Maine.
The Commission will be funded in its fact-finding mission by the Maine Attorney General’s Office, though Mills wrote that her and Frey’s offices “stand ready to seek any appropriate authorization from the Legislature” for additional funding.
Card, who was a U.S. Army reservist, was committed to a psychiatric hospital for 14 days over the summer after assaulting his fellow soldiers and threatening to shoot up a National Guard drill facility in Saco.
Maine law enforcement were made aware of Card’s deteriorating mental health and his threats several months before the Oct. 25 shooting.
The Sagadahoc County Sheriff’s Office unsuccessfully attempted to conduct a welfare check on Card in mid-September, and canceled a file six missing person’s report on Card without making contact with him just weeks before he went on his shooting spree.
Following the failed welfare check, law enforcement was in contact with Card’s brother, Ryan Card, in an effort to keep the family’s guns away from him.
The Maine Wire has reached out to every member of the commission by phone and email to inquire about the commission’s FOAA exemption. This story will be updated if they respond.
Seamus Othot contributed to this story.