AUGUSTA — With Paul LePage no longer in office, the public may finally learn how much the former governor spent at President Trump’s Washington, D.C., hotel during his travels to the capital, despite what experts say are serious shortcomings in Maine’s public records law.

Throughout its final 22 months in office, the governor’s office failed to comply with a public records request from the Portland Press Herald for receipts and other documentation connected with LePage’s taxpayer-funded stay at the Trump International Hotel. LePage’s use of the hotel has been repeatedly cited by a federal judge in connection with a lawsuit alleging Trump is violating the emoluments clause of the U.S. Constitution, which forbids a president from profiting from foreign, federal or state governments. Last month, the attorneys general of Maryland and the District of Columbia announced that they would be subpoenaing LePage in connection with the lawsuit.

This fall and winter LePage’s spokeswoman, Julie Rabinowitz, repeatedly refused to say why LePage had failed to turn over the records more than 600 days after they were requested, when the Department of Public Safety had provided corresponding receipts for his security details in just 10 days.

“Under the (Freedom of Access) Act, neither departments or the Office of the Governor is required to comply with the FOAA (request) in lieu of their regular workload, so some requests, particularly those that involve significant redaction or review, will take longer,” she said via email in late October.

In the final days of the administration, Rabinowitz said the governor’s office would fulfill all outstanding FOAA requests before leaving office on Jan. 2, a promise that was not kept.

With the change in administrations, the information will likely be released soon, as the new Democratic administration of Gov. Janet Mills now has responsibility for fulfilling the requests and has little incentive to delay release of her predecessor’s travel expense information.

A spokesman for Mills said the governor would promptly address any outstanding public records requests.

“The Freedom of Access Act exists because the public has a right to know about the work undertaken by its government,” spokesman Scott Ogden said via email. “It is our understanding that the LePage Administration has left a number of these requests unfulfilled, and it is the intention of our Administration to work to locate, inventory, and honor them in as timely a manner as possible.”

The state government point person tasked with resolving public records disputes, public records ombudsman Brenda Kielty of the Maine Attorney General’s Office, did not respond to multiple requests for comment over several weeks.

The Trump International receipts are not the only unmet request.

In October, the Press Herald asked the Department of Health and Human Services to comment on why eight of its longstanding public records requests – each between 4 and 15 months old – had not been fulfilled. In an email response two days later, DHHS general counsel Kevin Wells provided the requested documents for two of the cases and said “sometimes our responses are delayed because of our obligation to perform the regular activities of the Department.”

The other six open requests remain unfulfilled.

Also in October, the governor’s office fulfilled an 8-month-old request for LePage’s records connected with chairmanship of a pro-offshore drilling coalition of governors after a reporter asked for an on-record explanation for the delay. The released records showed the coalition was staffed by an oil and gas lobbying firm.

Judith Meyer, executive editor of Lewiston’s Sun Journal newspaper, who sits on the 16-member Right to Know Advisory Committee, a group created by the Legislature to make recommendations about Freedom of Access Act – or FOAA – issues, says getting public records requests fulfilled in a timely fashion is even more difficult for ordinary citizens.

“As frustrated as we can be about public access, the press gets a better response because we know how the law works and we are persistent in pursuing the records when we come up against conflicts,” Meyer says. “For the public there’s not only a great frustration, but a kind of hopelessness. Somebody will get a denial and then are like, ‘What can I do?’ ”

LAW LACKS TEETH

One problem is that Maine’s FOAA lacks any meaningful enforcement provisions. The law calls for a $500 fine to be imposed on a government agency whose employee willfully violate its provisions, but only if a state prosecutor gets a court to impose it. Another law imposes a $50 fine for intentionally altering or destroying state documents, but the provision is not believed to have ever been employed.

“Right now the FOAA is a toothless thing that doesn’t impose any significant penalties,” says media law attorney Sigmund Schutz, who sits on the board of the New England First Amendment Coalition and represents the Portland Press Herald/Maine Sunday Telegram in public records issues. “It was designed for a more innocent time perhaps when you had state agencies responding to and prioritizing public records requests.”

University of Arizona journalism professor David Cuillier, a national expert on public records law, agrees that enforcement provisions are critical. He says his research found the most effective provisions are to make the government agency liable for a plaintiff’s legal fees if they win a public records suit, a feature Maine’s law lacks. “This makes agencies work a little harder at following the law,” he says.

“You can have the best law in the world, but if there are no penalties, then a lot of people won’t follow it,” Cuillier says.

David Heidrich, spokesman for LePage’s Department of Administrative and Financial Services – which includes the state’s information technology office – told the Press Herald that all the emails and digital documents of LePage administration officials who left state service years ago remain on the servers of the agencies where each official worked.

Schutz said it would be unlawful for anyone to delete records requested by journalists or other members of the public under FOAA . “Where there is a pending public records request, it would be a violation of the law to destroy records responsive to that request,” he said.

Before leaving office, LePage spokeswoman Rabinowitz said the governor’s office has been fully complying with both public record and document retention laws, and has been in the process of transferring appropriate records to the Maine State Archives. “The Governor is an avid reader of history, and he wants to ensure the archival records are complete so that future historians will be able to accurately write about this Administration and its achievements,” she said via email.

 


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