On Nov. 9, Maine Gov. Janet Mills signed an Executive Order establishing an “Independent Commission” to investigate the facts surrounding the Oct. 25 mass shooting in Lewiston, following scrutiny of law enforcement’s response to the shooting and questions surrounding what more could have been done to prevent it.
Part of the governor’s order exempts the commission from Maine’s mandatory public access laws — effectively allowing the commission to keep their proceedings and records secret until the release of their final report.
In a Nov. 8 joint letter to the commission, Mills and Maine Attorney General Aaron Frey — whose office is funding the commission — wrote that ” 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,” they wrote.
Despite the stated objective of the commission being to bring “the complete facts and circumstances” of the Lewiston shooting “to light,” and to make them “known by all,” Mills’ Executive Order exempts the commission from Maine’s Freedom of Access Act (FOAA).
Maine’s FOAA provides the public with a broad right of access to the public records and public proceedings of state and local government entities, with certain exceptions meant to protect the privacy of individuals or legitimate government interests.
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.”
A vague disclaimer to the commission’s exemption is provided in the following sentence of the order, which states “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.”
This exemption is in accordance with the cited FOAA statute, which provides that a commission established by Executive Order may be exempted from the application of Maine’s FOAA, if specifically stated in the order.
Under its second citation, Mills’ order exempts the commission’s proceedings — including agendas, minutes, or other working documents — from being recorded and being published for the public, as it is an advisory body without decision-making authority.
In response to a request for comment on the commission’s exemption from FOAA, Commission spokesperson Kevin Kelley told the Maine Wire that while the Executive Order exempts the commission from FOAA during the course of its investigatory work, “the FOAA law would apply upon the conclusion of the commission’s work.”
Kelley’s statement on behalf of Mills’ Independent Commission indicates that until the commission’s final report is released to the public, the commission will not be subject to FOAA — meaning that the commission is not obligated to fulfill public records requests, conduct their proceedings in a public setting, or keep records that might satisfy eventual record requests.
There is no language in Gov. Mills’ Executive Order itself which references or dictates the expiration of the commission’s exemption — leaving open several questions as to what statutory framework will guide the release of the commission’s work to the public.
Under Maine law, the FOAA exemption for the commission will remain in effect unless and until Mills rescinds the order, which she has not confirmed publicly she will do.
It is also unclear what documents and records from their investigation the commission will be required to preserve until the release of its final report.
The Mills administration has a checkered past when it comes to their compliance with Maine’s public access law, especially during the COVID-19 pandemic.
In April 2020, Mills came under fire due to her and her cabinet members holding online or telephone meetings with state lawmakers out of the view of the public and without public notice.
In October 2021, the Maine Department of Health and Human Services and the Maine Centers for Disease Control and Prevention barred reporters from the Maine Wire and Maine Beacon from their regular press briefings, labeling them “advocacy journalists.”
Numerous records requests from the Maine Wire to the Mills administration — including ones related to the removal of journalists from their press events — have gone over a year without being fulfilled.
Maine Media Attacked Governor LePage for Using the Same Exemption in 2018
In 2018, then-Maine Governor Paul LePage established the “Maine Wind Energy Advisory Commission” by Executive Order, and cited the same FOAA statute as Gov. Mills in order to exempt his commission from FOAA.
In January 2018, Press Herald staff writer Kevin Miller wrote “In shielding the commission from public scrutiny, LePage tapped a clause – or, to some, a gaping loophole – in Maine’s public meetings law that’s been on the books for more than 20 years but was rarely utilized until he took office.”
Jim Campbell, who at the time served on the Maine Freedom of Information Coalition, told the Press Herald that “just because LePage can legally exempt the Wind Energy Advisory Commission from FOAA doesn’t mean he should.”
“I think the intent of the law was to make working papers and preliminary kinds of (information) more or less confidential as opposed to secret,” Campbell told the Press Herald. “But the way it is being used in this case is not for the public good in my opinion.”
“This is a very big issue and it affects things that already exist as well as (projects) that are in progress,” Campbell said. “It’s a huge issue for the state, however they decide it. And to do it in secret is really problematic.”
Democratic then-State Rep. Seth Berry told the newspaper that “[LePage’s] decision to make the commission’s meetings exempt from public meeting laws adds insult to injury for every Mainer who believes in government of, by and for the people.”
“It’s an outrageous stipulation that does little more than invite secrecy, corruption and potential conflict of interest surrounding public policy in Maine’s environmental future,” Berry said.
The Press Herald reported in June 2018 that Sig Schutz, an attorney at the prominent Portland-based Preti Flaherty law firm, wrote a letter to LePage on behalf of the media outlet asking him to “reconsider the provision in his executive order authorizing the wind commission to meet in secret.”
“The net result, for now, is that the commission is made up of anonymous persons meeting in secret to engage in unknown activities,” Schutz told the Press Herald. “This is not normally how good policy is formulated or how a representative democracy conducts business.”
In their Nov. 9 article on Gov. Mills’ Executive Order, the Press Herald does not mention that the Independent Commission will be exempt from FOAA — despite attacking former Gov. LePage for doing the same five years ago.