An Act Concerning Public Records Exceptions
Sec. 1. 1 MRSA §402, sub-§3, ¶O, as enacted by PL 2005, c. 381, §3, is amended to read:
(1) "Personal contact information" means home address, home telephone number, home facsimile number, home e-mail address and personal cellular telephone number and personal pager number; and
(2) "Public employee" means an employee of a governmental entity, as defined in Title 14, section 8102, subsection 2 1, except that "public employee" does not include elected officials.
Sec. 2. 3 MRSA §997, as amended by PL 2003, c. 673, Pt. GGGG, §9, is further amended to read:
§ 997. Conduct and issuance of program evaluation reports
The director and the office shall adhere to the following provisions relative to conducting and issuing program evaluation reports under this chapter.
All documents, writings, drafts, electronic communications and information transmitted pursuant to this subsection are confidential and may not be released to the public prior to the time the office issues its program evaluation report pursuant to subsection 3 3-A. A person violating the provisions of this subsection regarding confidentiality is guilty of a Class E crime.
This subsection may not be construed to prohibit or prevent public access to the records of a state agency or other entity in the possession of the director that would otherwise be subject to disclosure pursuant to the provisions of Title 1, chapter 13. The director shall refer requests for access to those records directly to the state agency or other entity that is the official custodian of the requested records, which shall respond to the request for public records.
Sec. 3. 4 MRSA §17, sub-§3, as amended by PL 1987, c. 776, §1, is further amended to read:
Sec. 4. 4 MRSA §809, as amended by PL 1977, c. 696, §27, is repealed.
Sec. 5. 5 MRSA §7070, sub-§1, ¶A, as enacted by PL 1989, c. 402, §1, is amended to read:
Sec. 6. 5 MRSA §7070, sub-§2, ¶D-1, as enacted by PL 1997, c. 124, §2, is amended to read:
Sec. 7. 5 MRSA §15321, sub-§3, ¶D, as amended by PL 2005, c. 19, §4, is further amended to read:
(1) A record obtained or developed by a technology center prior to receipt of a written application or proposal in a form acceptable to the technology center for assistance from the technology center. After receipt by the technology center of the application or proposal, a record pertaining to the application or proposal may not be considered confidential unless it is confidential under another provision of this paragraph;
(2) A peer review or analysis or other document related to the evaluation of a grant application or proposal;
(3) A record that the person, including the technology center, to whom the record belongs or pertains has requested be designated confidential and that the technology center has determined contains proprietary information, trade secrets or commercial or financial information, the release of which could be competitively harmful to the submitter of the information, could impair the technology center's ability in the future to obtain similar necessary information solely through the voluntary provision of such information and could affect other technology center interests, such as program effectiveness and compliance. For purposes of this subparagraph, the following terms have the following meanings.
(a) "Commercial or financial information" means information related to businesses, commerce, trade, employment, profits or finances, including personal finances.
(b) "Trade secret" means a secret, commercially valuable plan, formula, process or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. There must be a direct relationship between the trade secret and the productive process;
(4) A financial statement, credit report or tax return of an individual or other record obtained or developed by the technology center, the disclosure of which would constitute an invasion of personal privacy as determined by the technology center;
(5) A record, including a financial statement or tax return obtained or developed by the technology center in connection with a monitoring or servicing activity of the technology center, pertaining to financial assistance provided or to be provided by or with the assistance of the technology center;
(6) A record obtained or developed by the technology center that contains an assessment by a person who is not employed by the technology center of the creditworthiness or financial condition of a person or project;
(7) A financial statement or business and marketing plan in connection with a project receiving or to receive financial or other assistance from the technology center, if the person to whom the statement or plan belongs or pertains has requested that the record be designated confidential; and
(8) Those employee personnel records made confidential pursuant to section 957, subsection 5 and section 17057.
Sec. 8. 7 MRSA §2992-A, sub-§1, ¶C, as corrected by RR 1997, c. 2, §30, is amended to read:
(1) Employees of the board, including employees hired after July 1, 1996, are state employees for the purposes of the state retirement provisions of Title 5, Part 20 and the state employee health insurance program under Title 5, chapter 13, subchapter II 2;
(2) All meetings and records of the board are subject to the provisions of Title 1, chapter 13, subchapter I 1, except that , by majority vote of those members present recorded in a public session, records and meetings of the board may be closed to the public when public disclosure of the subject matter of the records or meetings would adversely affect the competitive position of the milk industry of the State or segments of that industry. The Commissioner of Agriculture, Food and Rural Resources and those members of the Legislature appointed to serve on the joint standing committee of the Legislature having jurisdiction over agricultural, conservation and forestry matters have access to all material designated confidential by the board;
(3) For the purposes of the Maine Tort Claims Act, the board is a governmental entity and its employees are employees as those terms are defined in Title 14, section 8102;
(4) Funds received by the board pursuant to chapter 611 must be allocated to the board by the Legislature in accordance with Title 5, section 1673; and
(5) Except for representation of specific interests required by subsection 2, members of the board are governed by the conflict of interest provisions set forth in Title 5, section 18.
Sec. 9. 7 MRSA §2998-B, sub-§1, ¶C, as corrected by RR 1997, c. 2, §31, is amended to read:
(1) Employees of the council, including employees hired after July 1, 1996, are state employees for the purposes of the state retirement provisions of Title 5, Part 20 and the state employee health insurance program under Title 5, chapter 13, subchapter II 2;
(2) All meetings and records of the council are subject to the provisions of Title 1, chapter 13, subchapter I 1, except that , by majority vote of those members present recorded in a public session, records and meetings of the board council may be closed to the public when public disclosure of the subject matter of the records or meetings would adversely affect the competitive position of the milk industry of the State or segments of that industry. The Commissioner of Agriculture, Food and Rural Resources and those members of the Legislature appointed to serve on the joint standing committee of the Legislature having jurisdiction over agricultural, conservation and forestry matters have access to all material designated confidential by the council;
(3) For the purposes of the Maine Tort Claims Act, the council is a governmental entity and its employees are employees as those terms are defined in Title 14, section 8102;
(4) Funds received by the council pursuant to chapters 603 and 611 must be allocated to the board by the Legislature in accordance with Title 5, section 1673; and
(5) Except for representation of specific interests required by subsection 2, members of the council are governed by the conflict of interest provisions set forth in Title 5, section 18.
Sec. 10. Review and recommendations concerning specific statutory provisions. Pursuant to the Maine Revised Statutes, Title 1, section 432, subsection 1, the Joint Standing Committee on Judiciary shall review the recommendations of the Right To Know Advisory Committee established in Title 1, section 411 concerning the following statutes and by December 1, 2008 shall develop recommendations to continue, modify or repeal each public record exception or to revise language to clarify the existing public record exceptions:
summary
This bill implements the recommendations of the Right To Know Advisory Committee regarding statutory changes to existing public records exceptions.
Under current law, personal contact information concerning public employees is not a public record. This bill clarifies that the exception also applies to personal contact information of voluntary appointees serving in State Government positions without compensation by cross-referencing the definition of "employee" in the Maine Tort Claims Act. The bill also addresses a potential conflict with this exception and the law governing state employee personnel records to clarify that personal contact information of state employees and applicants for state employment is not a public record.
The bill clarifies the law governing the confidentiality of reports, records and working papers of the Office of Program Evaluation and Government Accountability. The bill clarifies that final program evaluation reports are public records and subject to disclosure. With regard to other records and working papers, the bill provides that those working papers and records that support reports or are related to any program evaluation are confidential and may not be disclosed except at the discretion of the Director of the Office of Program Evaluation and Government Accountability in certain circumstances. Prior to the release of a program evaluation report, the bill gives the director discretion to disclose working papers to the agency subject to the evaluation when disclosure will not prejudice the program evaluation and the agency agrees to keep the working papers confidential. After the release of a program evaluation report, the bill gives the director discretion to disclose working papers as necessary and as long as the working papers remain confidential to the state agency subject to the program evaluation or any federal agency providing funding to that agency, to law enforcement agencies for the purposes of criminal investigation, to other state audit agencies and to other auditors reviewing the work of the office.
The bill narrows the current exception providing confidentiality to complaint and investigative files maintained by the State Court Administrator to only those complaints and investigations that are related to court and judicial security.
The bill repeals the exception making confidential any investigations by the Attorney General of the unauthorized practice of law. Title 16, section 614 addresses when investigative records or information held by the Attorney General for any type of investigation may be disclosed to the public. The bill repeals Title 4, section 809, dealing with investigations by the Attorney General, since it is not necessary.
The bill amends the provisions concerning confidential information within state employee personnel records to make the provisions consistent with the Title 1 language designating personal contact information of employees as not public records.
The bill narrows the exception in current law that designates the records and proceedings of technology centers as not public for the purposes of the freedom of access laws. The bill provides that the records and proceedings are public except for certain records designated as confidential, including records that are confidential by other provisions of law, financial statements, credit reports, tax returns and records that contain proprietary information or trade secrets. The approach taken in the bill is modeled on a similar exception in current law for records of the Maine Technology Institute.
The bill requires that the Maine Dairy Promotion Board and the Maine Dairy and Nutrition Council take a publicly recorded vote supported by a majority of the members before closing meetings or records to the public as allowed under current law when public disclosure of the subject matter would adversely affect the competitive position of the milk industry of the State or segments of that industry.
The bill directs the Joint Standing Committee on Judiciary to review the recommendations of the Right To Know Advisory Committee about specific statutory provisions and make recommendations about whether the public record exceptions contained in those provisions should be maintained, modified, repealed or clarified. These provisions were identified in the second annual report of the Right To Know Advisory Committee as raising issues for which more information should be provided by interested parties before final recommendations can be made.