Capitol Notebook: Fighting for the public’s right to know

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John Francis Smith made the news in 1988 when he was arrested and jailed because he refused to stop tape recording a meeting of the Lyman town selectmen.

 According to his 1999 obituary, Smith was “a deeply principled and patriotic man” who had stormed Omaha Beach at Normandy, among other World War II battles, and just wanted to see that things were done “right and honest. “

 The explicit provision in Maine’s landmark Right to Know law that allows for the tape recording of meetings didn’t stop the selectmen and police from removing him from the meeting. The charge against him of interfering with a public proceeding was later dropped, and Smith later won a $15,000 settlement after suing for false arrest. He used that money to start a scholarship fund for students who could write the best essay on First Amendment rights.

 The notorious case from 28 years ago is an extreme example of the tension between access to government, and the instinct of government to keep its business private and to be free from the annoying intrusion of the public.

 The most recent example concerns the refusal of the Maine Warden Service to provide information requested by The Maine Sunday Telegram under the state’s Freedom of Information Act. A Telegram article in May by Colin Woodard highlighted the controversial behaviors of an undercover warden investigator during a lengthy investigation of poaching in the town of Allagash. The article described him poaching and drinking excessively with his targets, and inducing them to commit crimes.

 The article revealed that Warden Service officials had failed to disclose basic information that should be public. Despite repeated requests in Woodard’s six-month investigation, the Warden Service refused to provide requested email correspondence, and basic information such as the Warden Service’s policy for undercover operations were heavily redacted. (Those policies had been released fully in 2004.)

 After a sham hearing earlier this month when a Warden Service official and Inland Fisheries and Wildlife Commissioner Chandler Woodcock defended the agency’s undercover practices, House Speaker Mark Eves requested that the state Right to Know Advisory Committee consider the issue. Eves wrote that the allegations raised by the Press Herald “have implications for the effectiveness and strength of Maine’s Freedom of Access laws.”

 Created in 2006, the Committee is charged with overseeing the landmark Right to Know law and reviewing possible changes to it. It is scheduled to meet this Wednesday, but the chairman, Sen. David Burns, refuses to put the matter on the agenda, although he may still be asked to. Other members of the Advisory Committee, including the co-chairwoman, Rep. Kimberly Monaghan, would like to see it on the agenda.

 The right to know law was enacted in 1959, in an effort that was spearheaded by University of Maine journalism professor Brooks Hamilton.

 Its purpose is to ensure the public’s business remains public, that there is no secret government, secret records, or a secret police state, and that the public has access to its government, with only certain exceptions that are defined in the statute. But what is secret and what is not is a moving target, and government officials often seek to grow the shroud of secrecy. When law enforcement agencies, highly armed and with the power to arrest, keep secrets from the public, it is a special cause for worry. The history of the law is littered with exemptions that have been added by legislators. And the law itself does not include strong penalties for failure to comply.

 This spring, Gov. Paul LePage refused to allow reporters and even some legislators into a meeting of a commission the Legislature created to review education policy.

 Maine’s right to know law provides the expectation that the public’s business will be done in public. But the law will continue to succeed only because an assertive press, and stalwart and courageous members of the public like John Smith, make sure that it is followed.

Portland resident Marian McCue is the former editor and publisher of The Forecaster.