AUGUSTA –– The LePage administration has imposed a ban on state employees’ use of text messages, instant messages or personal email to conduct state business.

The policy change was made to conform state practices with the Maine Freedom of Access Act, which mandates that all communications for public business be retained for state records and open to public inspection, unless designated by law as confidential.

Text messages are subject to the law, but the messages exchanged on certain devices, particularly BlackBerry smartphones, are not stored on state servers, so they are virtually untraceable and inaccessible for public records requests.

The administration’s policy change follows recent revelations that some state employees and high-ranking officials may be skirting the law by using state-issued BlackBerrys to communicate.

The use of texting was revealed on March 14, when a former employee of the Maine Center for Disease Control and Prevention told the Legislature’s Government Oversight Committee that supervisors had told her to use texts because the messages couldn’t be obtained through a public records request.

Sharon Leahy-Lind, a former director of the CDC’s Division of Local Public Health and a plaintiff in a whistleblower lawsuit against three CDC officials, described an atmosphere of secrecy in the agency, including an order to destroy documents related to awards of $4.7 million in public health grants.

It’s unclear whether the texting system is used widely by state officials, but as many as 4,500 state employees have state-issued BlackBerry phones. The Portland Press Herald has made a public records request for the names of the state employees who have state-issued BlackBerrys.

Gov. Paul LePage’s spokeswoman, Adrienne Bennett, said earlier this month that the administration had no policy prohibiting the use of secret messaging systems. But this week, a policy was implemented to prohibit texting and the use of personal email, said Beth Ashcroft, director of the Office of Program Evaluation and Government Accountability, the Legislature’s investigative agency.

The policy document says state employees must use the state’s email system to ensure that the messages are retained in the state’s archives.

Maine law defines a public record as any written, printed or electronic data in the custody of a state agency or public official that is used to conduct public or government business. The law covers text messages.

In New York in 2012, Democratic Gov. Andrew Cuomo and officials in his administration were found to be using the BlackBerry messaging system. According to news reports, the messages were part of a strategy to limit communications that could be requested through New York’s public records law.

In Maine, several heads of agencies and their senior staffers carry BlackBerrys. Under the state’s cellphone contract with U.S. Cellular, obtained by the Portland Press Herald last year through a public records request, BlackBerrys are an option for some state employees.

Leahy-Lind’s comments to the Government Oversight Committee prompted questions by lawmakers, including Sen. Emily Cain, D-Orono, and Sen. Roger Katz, R-Augusta. Both expressed concern that the messages could be used to conduct public business in private, and indicated that the committee could look into the issue further.

Leahy-Lind said her supervisors told her to use the BlackBerry messages because they are not subject to the Freedom of Access Act, but Brenda Kielty, the state’s public access ombudsman, confirmed that text and instant messages used for state business are public by law.

“Any record, regardless of the form in which it is maintained by an agency or official, can be a public record,” Kielty wrote.

Kielty said the BlackBerry messages are problematic because they’re “transient” – not stored on the BlackBerry server. The messages essentially pass through U.S. Cellular.

Steve Mistler can be contacted at 791-6345 or at:

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