LePage’s ‘working papers’ exemption approved by legislative committee

AUGUSTA, Maine — The Legislature’s Judiciary Committee approved an amended bill Tuesday that would make the governor’s working papers off limits to the Freedom of Access Act.

The bill, LD 1805, was drafted by the governor’s office in response to a flood of broad FOAA requests last year but also in part to afford the governor the same exemption lawmakers enjoy. Working papers include reports, drafts, internal memoranda and similar material.

All Republicans on the Judiciary Committee voted for the bill and Rep. Charles Priest, D-Brunswick, joined them. The remaining Democrats and independent Sen. Richard Woodbury of Yarmouth voted against it.

It now goes to the House and Senate for votes.

During a public hearing on the bill last month, LePage’s deputy counsel, Michael Cianchette, was the only person to speak in favor of it. He said the proposal is needed to ensure that decisions can be weighed and considered candidly before they are made public. Without that exemption, Cianchette said, the governor and his staff likely would stop creating records for fear that they might be made public. Under the bill, the working papers would not be made public until the governor chose to distribute them or until the adjournment of the legislative session for which the proposed legislation, reports and papers were prepared.

Many criticized the bill for fear that it would allow the governor’s office to operate in secret.

“It’s ironic that the judiciary committee would approve a rollback of Maine’s sunshine laws during Sunshine Week,” said Shenna Bellows, executive director of the American Civil Liberties Union of Maine, referring to an annual celebration of freedom of access laws across the country. “This bill does not fix the fundamental problem of giving the governor too much secrecy.”

The bill was amended in committee to restrict the exemption only to the governor and his staff. Before, the language was vague and could have been interpreted to include cabinet members. It also now includes a sunset provision that would have the exemption expire by August 2013.

“It’s less extreme, but it’s still not good,” Bellows said.

Most who testified last month against the bill were members of the media.

Longtime State House reporter Mal Leary, who reports on a freelance basis for the Bangor Daily News, said the proposed law would put Maine “far outside the norm for access to records of state governors.” Only six other states have this type of exemption.

Already, state law provides certain exemptions and Leary argued that the exemptions should apply to the record itself, not the custodian of that record.

He also shared a quote from a campaign interview he conducted with LePage before the 2010 election.

“If I’m elected governor, we’re going to be so open, even you will be amazed,” the governor said.

Under Maine statute, official records of the Legislature itself are subject to the Freedom of Access Act. However, all legislative papers and reports, working papers, drafts, internal memoranda and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature.

By comparison, records of the executives, such as governor, mayor or commissioner of a department, are subject to the FOAA if the records have been received or prepared for use in connection with the transaction of public or government business or if they contain information relating to the transaction of public or governmental business.

The exemption was first proposed last summer in a letter sent by LePage to members of the right-to-know advisory committee. In it, the governor said he believed that “an open government is an honest government.” However, the governor also said he had concerns about what constitutes government business.

“We have received [FOAA] requests for all grocery receipts from the Blaine House,” he wrote. “The staff of the Blaine House conducts the shopping — it is not something I involve myself in. I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

LePage also said he believes some people have been abusing Maine’s FOAA for political purposes.