We’d like to see a little statutory muscle added to Maine’s Public Access Ombudsman to really strengthen the public’s right to access records and attend meetings.
During the Baldacci administration, the Legislature — upon the recommendation of the Right to Know Advisory Committee — created the ombudsman position to review public access complaints and to attempt to mediate disputes regarding Maine’s Freedom of Access Act.
That administration never funded the position, so it existed in name only, which was the same as not existing at all.
Recognizing the public need to settle FOAA disputes, staff at the Office of the Attorney General — most notably Chief Deputy Attorney General Linda Pistner — took on the ombudsman role informally, fitting the work in with other day-to-day duties.
In 2012, Gov. Paul LePage — voicing his support of government transparency — made a point to fund the position and it is now occupied by attorney Brenda Kielty.
Thing is, the ombudsman position does not have any statutory authority to conduct investigations, to perform public access audits, to subpoena records, to order government to turn over records or even to compel anyone to answer questions. So, basically, it’s a position of educator and negotiator without any real power to right wrongs.
When the position was first crafted, the Legislature intentionally took a low-key approach; FOAA advocates — including the Sun Journal — favored the approach that education and negotiation work. The belief was that, in resolving disputes between the public and public officials, common sense would rule the day and people would willingly comply with Maine’s public access law once they were made aware of its requirements.
That was then.
This, as they say, is now.
There has been, over the past decade, a groundswell of increased public interest in access to governmental records and meetings. As a result, there have been a greater number of conflicts and there is now a greater need for the ombudsman to have the legal authority to investigate disputes and issue binding orders.
For instance, in April of last year the Sun Journal filed a complaint with the ombudsman and asked for an investigation of allegations that public documents had been destroyed at the Maine Center for Disease Control and Prevention.
The ombudsman reviewed thousands of emails, but without any authority to demand records or force CDC employees to talk with her, the review was inconclusive.
It took an act of lawmakers to request an investigation by the Office of Program Evaluation and Governmental Accountability (OPEGA) to resolve the matter.
In December, OPEGA released its findings that upper-level managers at the Maine Center for Disease Control and Prevention ordered the destruction of public documents and then created documents in response to a FOAA request from the Sun Journal.
Our allegation of FOAA violations was substantiated by the OPEGA report because that office has the strength of investigatory authority.
The Government Oversight Committee met last Friday to review the OPEGA report, and is scheduled to meet again next Friday — Jan. 24 — to continue that discussion.
As part of that work, we have asked committee members to consider elevating the ombudsman’s authority. That request has since been echoed by the Maine Freedom of Information Coalition, the Maine Press Association, the Association of Maine Broadcasters and ACLU of Maine. We expect other FOAA advocates to join in.
But, while our request was certainly prompted by the deplorable actions at CDC — which a DHHS official has publicly acknowledged should never have happened — the need for the ombudsman to have enhanced legal authority is far greater than that.
Last month in New Gloucester, citizens were energized after selectmen made staffing changes behind closed doors (which FOAA does not permit) and fought for weeks to convince the board to undo its actions and set things right. Their strength in number was compelling, but we wonder what would have happened if only one person spoke up. Would selectmen have been so willing to listen?
What about residents who have been denied access to budget documents, or public officials’ email communications, or accident reports, or have been told their school superintendent’s contract is confidential?
These things happen in towns across Maine and, short of filing a civil lawsuit, the public really has no recourse in forcing the release of public records or keeping meetings open if government officials stand in the way. Sometimes, government obstructs access on purpose and sometimes it’s because officials don’t understand their obligations under the law.
Whatever the cause, the public suffers and trust in government erodes.
Most residents seeking public access cannot afford to hire an attorney and pursue a lawsuit, so they often reach out to Maine’s press and to the Maine FOI Coalition for help. Others decide to file lawsuits pro se, but are largely unsuccessful even if they have a righteous claim because it’s tough for private citizens to dance with litigators trained in court procedures.
So, that leaves the ombudsman. But without the authority to compel people to talk to her so she can figure out whether an executive session was just or not, or the authority to order the release of documents required under the law, the position is toothless.
If the public — and that means you — values true government accountability, our ombudsman needs the power to get that job done.
That power doesn’t exist now. If you think it should, we ask you to join us in our request to strengthen that office. Press lawmakers to grant the ombudsman the statutory muscle to fight for our collective right to know.
The opinions expressed in this column reflect the views of the ownership and the editorial board.
To support increasing the statutory authority of the Public Access Ombudsman, we ask you to contact:
Government Oversight Committee
82 State House Station
Augusta, ME 04333-0082
For help resolving FOAA conflicts, contact:
Public Access Ombudsman Brenda Kielty
Office of the Attorney General
6 State House Station
Augusta, Maine 04333