AUGUSTA — It’s not unusual for state employees in Maine to carry two mobile phones with them these days.

The governor’s press secretary and communications director do it, so does the legislative liaison for the state’s Department of Health and Human Services, as does the DHHS commissioner.

Often one of the phones is state-issued and paid for by taxpayers.

But some public workers and elected officials are using the devices to skirt the state’s open records law, according to a federal whistle-blower who said she was instructed in the method of secret messaging by a top-ranking boss in state government.

During sworn testimony Friday before the Legislature’s Government Oversight Committee, Sharon Leahy-Lind, a former employee of the Maine Center for Disease Control, said she was instructed by superiors to use text messages because the messages were hidden under the state’s Freedom of Access Act.

However, Leahy-Lind’s former supervisors denied her testimony, also under oath, on Friday.

Meanwhile, the state’s open-records ombudsman confirmed that while the messages between state workers on state-issued phones should be public under state law, they are not retained by the state but the cellphone company, which may actually put the messages beyond the reach of an open-records request.

“If a text message is received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business and is not deemed confidential or excepted from the FOAA, it is a public record,” Brenda Kielty, the state’s public access ombudsman wrote in an email to the Sun Journal on Friday. 

State law requires disclosure of public records, including communications written and electronic between state workers and others considered public officials but to be requested, the state has to maintain possession of the records.

Viewing any text messages would likely require a federal subpoena as required by the Stored Communications Act. But the act only authorizes the release of  text message transcripts for the purpose of law enforcement and requires consent.

In a recent case involving U.S. Cellular, Maine Supreme Judicial Court Justice Donald Alexander wrote the federal act “included no exception for authorizing text message content disclosure based on a civil discovery subpoena.”

Alexander criticized the phone company for handing over the text messages to an attorney in a recent divorce case citing the federal law that says the content of text messages cannot be released, except for law enforcement purposes, without the consent of the sender or recipient. To obtain the content of text messages, law enforcement must, in most cases, get a search warrant and present it to the cellphone service provider.

“The Stored Communications Act includes no exception authorizing text message content disclosure based on a civil discovery subpoena,” but does not allow subscribers whose content is disclosed to do much more than change providers, Alexander wrote.

Unlike state email accounts, which are maintained by the Office of Information Technology on servers owned by the state, text messages sent on a state-issued Blackberry or other mobile device are retained by the phone contractor — U.S. Cellular in Maine.

According to John Martins, a spokesman for the DHHS, some employees are issued cellphones to conduct state business.

Martins said he could not immediately produce a list of DHHS employees within the department who were issued mobile phones with texting capabilities. He also said he was unsure whether employees at the CDC were issued text-capable phones or not.

He said the texting feature is an additional cost and would have to be added to the state’s contract for each phone.

“It has been my experience that people use their Blackberry and other devices for email communications and phone conversations,” Martins wrote in an email message. “If a cellphone (such as a Blackberry) is used for email messages, those messages are stored within the State’s Exchange system, like any other email generated by an employee.”

According to the state’s policy, cellphones are only issued to employees who need them for one of three reasons: their job requires field work where land-line phones are inaccessible or inefficient, they are required to be on-call; or they travel frequently and need to be accessible.

Adrienne Bennett, press secretary for LePage, and LePage’s communications director, Peter Steele, said they use text messaging on occasion only and usually for routine matters.

Bennett said she texts reporters on occasion, when she can’t reach them by other means and Steele said he occasionally communicates with other state employees.

For instance, he alerted a state trooper assigned to the governor’s security detail Monday by text when he knew the governor was en route to an event the trooper was providing security for.

Steele also indicated he uses his state-issued Blackberry to send emails, like the message he sent to the Sun Journal to answer the questions around text messaging Monday.

“I almost never text with it,” Steele wrote.

Bennett said she and Steele were also exploring the issue with regard to the governor’s office communications policy.

“Technology changes rapidly and we as an administration are committed to abiding by the law with regard to FOAA,” Bennett wrote in an email message. “Sometimes, the technology moves faster than we can implement the policy, however. Nonetheless, we are discussing ways to address this matter and are confident the majority of state employees are using state issued devices appropriately and accordingly.”

It remained unclear Monday how many state employees had text-enabled devices and to what extent they were being used for government business. A request to the state for details on which state employees had text-enabled phones was still being considered Monday, officials said.

Lawmakers on the Government Oversight Committee said Monday that while the testimony they heard on how text messaging was being used to avoid FOAA at the CDC was conflicting they are concerned the potential exists to avert public access laws with state-issued mobile devices.

“The idea that we may allow a shadow communications system to exist in state government is deeply troubling,” state Sen. Emily Cain, D-Orono, the Senate chairwoman of the GOC, said.

She said the FOAA law has been amended in the past to reflect emerging communications technologies. Such was the case when email became a dominant method of business communication in the late 1990s.

“This is probably the next frontier of transparency in state government,” Cain said. “Because text messaging can make life a little easier, a little quicker, it can be an easy and straightforward way of communicating but if that’s done at the expense of public access or it’s being used intentionally to avert the public’s eye, then we have another real problem on our hands.”

Cain’s Republican counterpart on the committee, Sen. Roger Katz, R-Augusta, said that the nature of texting technology may make retention of text messages for public disclosure difficult. But Katz also agreed that if texting was being used to subvert the state’s open records law, he’d be troubled by the notion.

“At least one witness was suggesting a concerted effort not to leave a paper trail of how decisions were being made and that’s problematic,” Katz said.

Katz also noted there are a variety of ways to subvert leaving a paper trail, including making a phone call or speaking to somebody in a private in-person meeting.

“Whether there is a potential fix to this, I don’t know, ” Katz said.

Cain did say Monday she believed the issue of using text messages to conduct state business would become a topic for the Government Oversight Committee in the weeks ahead.

The committee meets March 28.

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