Maine lawmakers worry that recordings of public hearings may be used to embarrass them – and are considering ways to stop that from happening.

By Judith Meyer, Guest Contributor

Would it be OK for Maine to copyright all audio recordings of legislative committee hearings solely to restrict the use of embarrassing exchanges?

No. And, yet, the Legislative Council’s State House Facilities Committee is discussing this very thing.

Last month, after members of the Committee voted to maintain audio recordings instead of destroying them, a decision was made to investigate the cost and process of copyrighting these records to limit their use. It would be an unprecedented move for Maine and is being considered for the wrong reason.

Which is? Protecting sitting lawmakers from adversaries who may use their audio quotes to embarrass them in the political arena. It’s not to protect the integrity of the records. It would be done only to spare lawmakers from themselves, from off-the-cuff things they may say in committee that may then be used against them for future —possibly harmful — political purposes. The Facilities Committee discussed the possibility of copyright restrictions for political use while permitting access for educational and research use.

Here’s the problem: Not all political purposes are bad. Would banning political use prevent lawmakers from using recordings to highlight their most compelling arguments? Their most thoughtful suggestions? Their best-articulated positions shared during committee hearings? It would. So, this idea of banning political use may well shield the odd stuff lawmakers say, but it would also bar use of all the good that comes from committee work.

And who decides what is educational or research use? From a media perspective, our political coverage is always intended to educate readers and viewers. So, under this very informal scenario being discussed, the media could argue educational use even when lawmakers behave badly, which means the very thing lawmakers want to protect would not be protected. So why do it? And, is it even possible?

Copyright protection is intended to protect original and creative thought from use by others. And while there is a great amount of original thought and many creative ideas presented during public hearings, not all of it comes from lawmakers. Much of it comes from members of the public who testify and who purposely intend for their testimony to be heard and consumed by the public.

Do people offering testimony really want it to be restricted from wide dissemination?

Very doubtful. And, could government claim to “own” that testimony for purposes of copyright? Absolutely not.

The most important obstacle here, and it’s a glaring one, is the clear collision between copyright and public access. Legislative committees operate in public. The public has access to hearings (which are recorded and which recordings are instantly public records) and all written testimony. That’s the law. To drop a copyright on the audio portion of this material fundamentally changes public access to those records.

The entire purpose of Maine’s Freedom of Access Act is for the public to understand the governmental process. The law doesn’t say only “good” records are public, or that the public may attend meetings only when everyone behaves.

Worse, this radical change in access is being considered outside the legislative process, without public hearing. So, while the Facilities Committee has been good enough to accept comments on this issue, it’s being done as a courtesy, not as a requirement.

If we could, for a moment, put all these issues aside, there’s still the practical irony: copyrighting can be prohibitively expensive, and copyrighting the daily work of multiple committees would be grossly expensive. So, we — the taxpayers — would be asked to foot the bill to restrict our access to public records in order to spare lawmakers from possible embarrassment caused by their own words or actions.

How is that our responsibility? It isn’t.

The Legislative Council’s Facilities Committee last considered this issue on May 23 and asked Executive Director Grant Pennoyer to research copyright cost and process for consideration at its next meeting, which is not yet scheduled. When it is, we must protest this on the basis of purpose, access, and cost. These audio recordings are unquestionably the public’s records, and we have a right to access without restriction.

Judith Meyer is executive editor of the Sun Journal, a vice president of the Maine Freedom of Information Coalition and a member of the Legislature’s Right to Know Advisory Committee.

Opinion: Maine has lost its long time commitment to open government

By Mal Leary, Guest Contributor to LWVME blog

When I was growing up, my dad would take me to the annual town meeting where the long tradition of New England open government was on display. Every expenditure of the town was voted on and the town books, the physical ledgers of expenditures, were on a table for townspeople to examine. And they did.

Everyone who was a resident of the town could comment and ask questions, and sometimes it seemed they all did as the day wore on. They participated. Some ran for office, often reluctantly saying somebody has to do it. Most simply showed up and voted for selectmen and participated in the town meeting.

As towns have grown and government at all levels has gotten more complex, there is less direct democracy and more representative democracy. Town Councils have replaced town meetings in many places, and cities have developed more and more services that require more and more employees and a more complex bureaucracy removed from the voters.

The state legislature used to meet once every two years and special sessions were rare because of the difficulty of getting lawmakers to Augusta. Concerned about the loss of transparency with more and more bureaucracy, lawmakers passed Maine’s first open meetings and public records law in 1959.

It stated all records were public and open for inspection and copying, unless the legislature had passed a specific exemption. Those first exemptions were the obvious ones like ongoing criminal investigations. But they have grown to hundreds of exemptions over the years.

All representative government meetings, from selectmen meetings to state lawmakers committees, were also declared open for any in the public to attend. Some specific exemptions were added such as the ability to consult the town attorney on a legal matter or one concerning personnel. But no action could be taken by any board, commission or legislative committee in a closed session.

In recent years the legacy of open government has been eroded. Sometimes it is difficult, even painful, to discuss issues in public. It’s often easier to discuss something on the phone or by email or text, than in front of the public. Particularly if the issue is controversial.

As Ed Muskie once told me, no one asks you to run for public office. It’s something you decide to do and you should be ready to conduct yourself in public. He was a key supporter and author of some of the provisions in the 1974 federal Freedom of Information Act that updated and expanded the original 1966 law that we celebrate this year, fifty years after it was enacted.

In the last few years, we have seen an erosion of the law in Maine.  Last year, worried they were running out of time to get the state budget passed by the start of the new budget year, legislative leaders met privately to craft a budget that would get the needed votes. It was hard. Very hard, but in the end they reached an agreement and rushed the budget to the floor for a vote.

Only they knew all the details in the hundreds of pages, lawmakers had only hours to study the budget and the public had even less time. They made a travesty of the law and their own rules and the budget was passed, and as a reporter I remember finding out about sections and the impact they would have only weeks after the budget was law.

I had served on the legislature’s Right to Know Advisory Committee since it was created in 2005, and decided to resign in protest of the flagrant disregard of the law. The committee has done a lot of good work reviewing proposed exceptions and stopping some bad laws before they were passed. It also has reviewed existing laws and in many cases recommended improvements that were adopted by the legislature.

Recently it was the Executive branch that flagrantly violated the law. Gov. Paul LePage met with members of a statutorily created commission to study education in Maine.  They met at the Blaine House for the first meeting and members of the public and reporters were turned away at the gate.

The meeting was illegal, but there is no easy enforcement mechanism in Maine law. An individual must go to court and get an injunction to stop a meeting. Yes, we have a Public Access Ombudsman in the Attorney General’s office, but they are not independent and do not have the authority to go to court without the Attorney General’s approval. The ombudsman can issue only advisory opinions.

It is not that way in all states. In Connecticut, since 1975, they have had the Connecticut Freedom of Information Commission that has the authority to investigate and fine agencies and individuals that violate the law and can go to court to seek further action against violators.

Other states are looking at developing a simple process to appeal records or meeting decisions with an administrative process far less expensive than the courts.

Since its creation in 2000, the Maine Freedom of Information Coalition has worked to educate lawmakers, and the public, about open meetings and access to public records. It has had some success, like the requirement all elected officials take an online course about the law. Clearly some either take the course and forget what they learned, or they ignore the law.

We need a stronger law, with penalties for those that willfully violate the law. It will take a lot of work, but advocates for open government need to take up the cause.

 

Mal Leary is Vice President of the Maine Freedom of Information Coalition and is currently serving as President of the National Freedom of Information Coalition. 

Maine’s FOA Law Cloudy on Closed-Door Meetings

By Stephanie Philbrick & Ann Luther

Secrecy in government is something that rubs most Americans the wrong way – even if most of us assume it happens. This sentiment is all the stronger as we remember our July 4th national holiday and celebration of democracy. The Advocacy Committee of the League of Women Voters of Maine (LWVME) attends dozens of legislative committee meetings each session precisely because we want to participate in government and monitor the process of law-making. So, when we saw legislative committees repeatedly going into closed-door sessions during public meetings we were concerned. Maine’s Freedom of Access Act (FOA) defines a public proceeding as, “the transaction of any functions affecting any or all citizens of the State” by the Maine Legislature and its committees and subcommittees…” We question the practice of “corner causes” or closed-door meetings in legislative work sessions because, as Helen Hanlon wrote in her letter to the Kennebec Journal (June 26), “Whether legal or not, the practice is a breach of integrity in our legislative process and undermines transparency in government.”

Closed door discussions are technically allowed by the FOA: “Subject to certain procedural conditions, [committees are allowed] to hold closed “executive sessions” on specified subjects after a public recorded vote of 3/5 of the members present and voting.” While there are undoubtedly times when this practice is appropriate, strictly speaking, this is not the procedure that legislative committees use when calling for a “corner caucus.” No vote is recorded, and the session is not an executive session of the committee as a whole. Rather, the committees divide into two groups along party lines for secret conferences among themselves, and the practice is routine.

What seems to be occurring most often is that, during a public meeting, parties decide to caucus or meet separately to discuss how to proceed. Lisa Pistner, Chief Deputy Attorney General for the State of Maine, recently responded to our questions about closed-door meetings during Legislative Committee meetings: “We have advised that there is no court decision on the subject and that the actual circumstances would be relevant, but that political parties are not governmental entities covered by the Freedom of Access Act.” In 2010 she wrote to Senate Chair Lawrence Bliss on the issue and called party-only caucuses during meetings an issue of “statutory interpretation.” So, it seems that the practice may not break any laws – though this hasn’t been tested in court. Regardless, private meetings were overused this session and certainly go against anyone’s view of government transparency.

The increasing prevalence of closed meetings is bad enough when they form a key off-mic part of the deliberations at public work sessions and when they are immediately followed by committee voting. It is even more troubling when the closed-door meetings generate legislation that is sent directly to the floor without further public comment in committee. This is a double-whammy to the public’s right to know and weigh in on legislation. Yet that also happened this session.

To gain a better understanding of what Maine’s FOA means in this context, we turned to LWVME board member, John Brautigam, for this perspective:

First, the FOA laws are supposed to be “liberally construed and applied to promote their underlying purposes and policies as contained in the declaration of legislative intent.”  1 MRSA 401.  So the law is supposed to be interpreted as strongly as possible to protect the right of the public to access.

On the other hand, the law only applies (in this context) to the legislature, its committees and subcommittees.  1 MRSA 402(2)(A).  This has been interpreted to mean that smaller groups of legislators speaking to each other informally are not covered by the law.  Only the full legislature, the full committee, and full subcommittees are subject to the law.  (Individual legislators are also exempt, although some of them assert that they are covered by the law.)

Some people have argued that when a handful of members of a Standing Committee get together to discuss business of the Committee they should be considered a “subcommittee.”  The legal interpretation that prevails in Augusta, however, is different.  A subset of the Standing Committee is not considered a subcommittee unless it is specifically established by the Committee and charged with doing some specific work.  Otherwise there is no “subcommittee” within the meaning of the FOA requirements.   (The key here is not the name of the group that is meeting, but whether it has been formally established, as opposed to existing on an ad hoc basis.)

One could bring a lawsuit asking a court to rule on whether the closed, small-group gatherings of legislators should be considered “subcommittees” or otherwise should be covered by the FOA law.  It would not be a frivolous case.  But this is so close to the legislature’s own self-governance that where there is uncertainty, most courts would probably defer to the legislature’s interpretation of its own laws.

Legislation to clarify the law would be helpful, and even if not enacted it would send a helpful reminder of the core principles of FOA.

In a long, surreal legislative session that has ended in a circus of vetoes, accusations, and feuds, closed-door meetings might seem like a small issue. However, these issues of ethics and transparency are often overlooked and allowed to slide, and when that happens, we all lose. Our access to government and ability to participate is integral to democracy and all the more important in contentious times. We hope that legislative leadership can be persuaded to interpret our FOA laws so broadly as to end the practice of corner caucuses, but if our current law is inadequate to the task, perhaps that law needs to be refreshed.