Maine Democrats Take Dim View of Bills to Increase Government Transparency

The Maine Legislature’s Judiciary Committee held public hearings on Wednesday regarding two bills that would bring Maine’s public record laws into line with government transparency statutes in other states.

The bills’ respective sponsors, Sen. Rick Bennett (R-Oxford) and Rep. Laurel Libby (R-Auburn), both believe that Maine’s current disclosure law — the so-called Freedom of Access Act (FOAA) — is insufficient.

Sen. Bennett’s bill would expand the scope of FOAA to include proceedings, such as partisan caucuses, and documents that are currently exempt from the disclosure law, while Rep. Libby’s law would cause Maine to adopt stricter deadlines for compliance with FOAA, in line with statutes in other states, like Vermont, Illinois, and Maryland.

Bennett’s bill, LD 12, would subject legislative caucuses to FOAA laws, allowing private citizens to request their communications, and thus preventing important government decisions from being made during caucus meetings without public scrutiny. Bennett has long been a critic of how major policies are often crafted in secret rather than in full view of the public.

“It will ensure the public can see how decisions are made, who is influencing those decisions, and the reason behind our policies or laws,” said Bennett

Bennett said during his testimony that the proposal was partly inspired by the experience of presenting a bill to a seemingly sympathetic committee, only to have the bill receive an ought-not-to-pass vote following a closed-doors caucus meeting. He said LD 12 would provide the public with a new insight into the caucus meetings that he believes often exert significant influence on the state’s governance.

He argued that the current system, which allows legislators of either party hold a private caucus to discuss a strategy or position without public knowledge, is “concealment” and that it “leads to distrust.”

Under the proposed law, any meeting between three or more legislators of the same party for the purpose of conducting legislative business will be considered a caucus and will be regarded as a public proceeding for the purpose of FOAA.

Although the short bill does not provide many details, Bennett said during his testimony that it will also apply to electronic communications, such as emails or text message threads.

While Bennett’s bill would increase the scope of FOAA laws, Rep. Libby’s bill would ensure that citizens are actually able to take advantage of them.

Her proposal would require officials to fulfill requests within 30 days, replacing the current requirement that officials fulfill requests “within a reasonable time.”

Under Maine’s current transparency laws, government bureaucrats, elected officials, and state agencies are under no obligation to provide public records to journalists, lawyers, or citizen activists under any deadline whatsoever. This has resulted in state agencies routinely abusing FOAA, in some cases refusing to turn over records responsive to even simple requests for more than 600 days.

“The Law’s current language requiring compliance within a reasonable time is too vague to be effective, ad what is reasonable for an agency facing public scrutiny will be vastly different from what is reasonable for a concerned citizen seeking timely information,” said Libby during her testimony on the bill.

The bill drew support from two Democratic co-sponsors, Rep. Grayson Lookner (D-Portland) and Rep. David Sinclair (D-Bath).

Currently, FOAA law requires the recipient of a public information request to acknowledge it within five business days and provide a “good faith,” but non-binding, estimate of how long it will take to comply with the request.

On paper, the law provides citizens with access to government records. But in practice, the “spirit” of the law is routinely eschewed in favor of petty or partisan motivations.

The lack of firm deadlines within Maine’s FOAA, as opposed to states like Vermont, Illinois, and Maryland, allows state officials to delay in providing public information almost indefinitely since there is no legally mandated time limit on how long the compilation of records can take.

In addition to the lack of the time limit, the law contains provisions that allow government workers to justify lengthier delays. For example, public records officers will routinely allege that they are busy with other FOAA requests, as this is a reason outlined in the statute that can allow for extended delays between a request and the response to that request.

Additionally, some agencies will subject all public records requests to a secondary review by an attorney to exempt or redact sensitive information or information that is exempt under FOAA. In those cases, the attorneys will often cite their personal workload as an explanation for delays in producing records, even though an attorneys personal workload is not a statutory reason for delaying document request responses. This additional time spent reviewing documents for exemptions can be added not only to the time delays, but also to the eventual cost that government agencies charge for public record requests.

The Maine Wire has experienced the pitfalls, weaknesses, and potentials for political exploitation of FOAA firsthand with Gov. Janet Mills’s office, the Department of Public Safety (DPS), the Department of Administrative and Financial Services (DAFS), the Office of Cannabis Policy (OCP), and the Secretary of State’s office.

In one high profile instance, the Maine Wire sued the Mills Administration — and won — over the governor’s failure to comply with FOAA following our request for records related to her whereabouts in the days before, during, and after the winter storms of 2023.

After the Maine Wire successfully sued for those documents and obtained them, we were able to uncover a potential reason why the administration was slow-rolling our request and violating FOAA. The documents showed that, despite receiving reports from the National Weather Service (NWS) detailing the severity of the storms, Mills nonetheless was headed to a fundraiser with Massachusetts Gov. Maura Healey (D) on the eve of the storms.

The governor’s office told the Maine Wire that Mills aborted the trip to the Bay State after Mainers began losing power in record numbers; however, nothing in the heavily redacted records supports that claim.

[RELATED: Janet Mills Won’t Turn Over Public Records Detailing Her Whereabouts Amid Devastating December Storms: UPDATE…]

While defending her proposal, Libby cited other states that require full compliance with requests for public records require compliance within a specific time, such as California. According to Libby, that Democrat-controlled state requires a full response to public records requests within ten days.

Judy Meyers, an editor for the “Maine Trust for Local News” websites and newspapers, testified on behalf of the Maine Press Association regarding the bills.

Meyers claimed that a 30-day requirement for responses would lead government agencies to delay responding to simple requests, waiting until near the deadline to fulfill them.

Rep. Adam Lee (D-Auburn) made a similar suggestion when questioning Libby about her bill.

The bill is certain to help journalists seeking documents that officials would prefer not to release, making the Maine Press Association’s opposition to the bill particularly notable.

Nevertheless, the New England First Amendment Coalition (NEFAC) submitted a written testimony against the bill.

“A month is simply too long and provides an incentive for abuse. As I recently told WGME when asked about this bill, some requests only require minutes or hours and certainly not 30 days. If this legislation passes, the new law will implicitly give permission to every agency to take a month to fulfill a request, no matter how simple it might be,” said NEFAC Executive Director Justin Silverman.

Numerous other groups, including the Maine Sheriff’s Association, the Maine Department of Environmental Protection (DEP), and the Maine School Management Association, also testified against the bill.

The majority of testimonies argued that officials would be unable to meet the deadline for more burdensome requests that take more time to fulfill.

“Thirty days is simply not an achievable time frame for responding to most FOAA requests,” said Kevin Martin, the Policy Director for the DEP.

Other opponents cited the potential cost to government agencies, and thereby taxpayers, of having to employ additional workers specifically dedicated to fulfilling record requests within the new time frame.

The bill does not currently have a fiscal note indicating how much it would cost taxpayers.