AUGUSTA — Lawmakers are treading carefully as they consider a request to grant investigative and enforcement powers to the state official who mediates disputes over access to government records and meetings.
The push to enhance the statutory power of Maine’s public access ombudsman follows two recent high-profile cases in which officials in the LePage administration delayed the release of documents requested through the Freedom of Access Act.
In one case, a nonpartisan review showed that officials in the Maine Center for Disease Control and Prevention ordered staff members to destroy documents after they were requested by a newspaper.
In the other, the administration delayed, for nearly a month, the release of the first portion of a $925,000 study of the state’s welfare system despite multiple requests by the Portland Press Herald and other media outlets, and a directive by Attorney General Janet Mills.
The two cases have prompted the Maine Freedom of Information Coalition and the Sun Journal in Lewiston, which originally requested the CDC documents, to seek additional investigative and enforcement power for Brenda Kielty, the public access ombudsman.
Lawmakers on the Government Oversight Committee, the panel that’s probing the CDC controversy, are hesitant to push for such a change in this session.
Sens. Emily Cain, D-Orono, and Roger Katz, R-Augusta, their party’s respective leaders on the committee, said the Legislature should move carefully before granting such power to the ombudsman.
“We shouldn’t overreach here based on these two cases,” and the Legislature’s Right to Know Advisory Committee should review the proposals, Katz said.
Cain said the cases that prompted the proposal are politically charged, and that most public records requests are handled reasonably and responsibly. “We don’t want to over-legislate to deal with two bad cases,” she said.
The Maine Freedom of Information Coalition, the state’s leading public-access advocacy organization, disagreed. In testimony provided recently to the Government Oversight Committee, Suzanne Goucher, president of the coalition, wrote that the CDC case is a “tremendous blow to the public trust.” She noted that the documents that officials ordered the staff to destroy were used to justify more than $4 million in public health grants.
Goucher said the public records ombudsman should have the authority to conduct hearings, issue binding written decisions and compel government agencies to release public documents.
Judy Meyer, a managing editor at the Sun Journal and the vice president of the Freedom of Information Coalition, provided to the Government Oversight Committee the details of the newspaper’s year-long effort to obtain records from the CDC.
According to Meyer, the CDC delayed turning over documents, tried to charge exorbitant fees to produce them, and ultimately failed to provide all of the requested records after supervisors ordered them destroyed. Last year, the newspaper sought a resolution with the ombudsman, a position created in 2007 but not filled until Gov. Paul LePage and the previous Legislature approved funding for it in 2012.
According to Meyer, Kielty told editors at the newspaper that she could only review the Sun Journal’s complaint, not investigate it.
“(Kielty) was equally clear that she did not interview anyone at CDC because she does not have the statutory authority to compel someone to talk to her nor does her office have authority to subpoena records,” Meyer said during the Government Oversight Committee’s hearing on Jan. 10.
Maine is one of 19 states that have designated officials to resolve public access disputes, according to the Reporters Committee for Freedom of the Press. Most of those officials lack enforcement and investigative power, which public-access advocates say leaves two choices for those whose requests are denied: take expensive legal action or give up.
Kielty, who is paid $88,000 a year in salary and benefits, has limited statutory authority. She’s compelled to answer questions about Maine’s access laws, resolve complaints and give advisory opinions if they’re requested. She also must make annual recommendations to improve the Freedom of Access Act to the Legislature.
Last year, the Portland Press Herald reviewed the ombudsman position after its first six months of operation. The response from people who consulted with Kielty was mixed. Some found her valuable in resolving disputes or educating them about the law, but others were disappointed that she didn’t do more.
The Maine Freedom of Information Coalition says Kielty is limited by current statutory power. The recent public-access disputes have sharpened such criticism.
LePage vowed to have the most transparent administration in state history when he ran for governor in 2010. And after taking office, he signed a law to close a loophole that allowed lawmakers and state officials to profit from state-paid contracts. He also initiated Open Checkbook, a website that allows the public to track government spending.
But when Attorney General Mills demanded that the governor comply with multiple record requests associated with the public welfare study, he reportedly responded, “Tell (Mills) to sue me.”
Cain, the Democratic lead of the Government Oversight Committee, has previously proposed legislation to strengthen the public access law. She said she is open to exploring additional statutory powers for the ombudsman but it is too early to say if such authority should be granted.
Katz and Cain said their committee will consult with the Right to Know Advisory Committee before recommending further action. The advisory committee reviews Maine’s open records law each year and makes recommendations to the Legislature’s Judiciary Committee.
Steve Mistler can be contacted at 791-6345 or at: