Fear drives lack of public access in Maine

By Judy Meyer

Maine is moving in the wrong direction when it comes to public access.

Blame technology.

The very computer systems and databases created to improve the flow of information and ease public access are now being held up, by lawmakers, as troublesome portals to be sealed shut in the interest of personal privacy. That easy access to public records is something to fear.

While fear is a good motivator to move people to action, it’s a poor foundation for drafting good public policy. But fear works, and lawmakers increasingly seem more moved by emotion than by information, more convinced by anecdotes than by facts.

Two years ago in Maine, the electronically stored email addresses of hunting and fishing licenses were moved under a shield unless a license holder “opted in” to a public database. This, after Kittery Trading Post sought access to the database for marketing purposes. Sportsmen didn’t appreciate the national sporting goods company’s access to their email, even though that’s a standard marketing technique long used by private companies, political parties and nonprofit organizations (even before email when we were actually putting stamps on letters).

Last year, the State Police-maintained database of accident reports was made confidential based on an impassioned argument that the database was a potential treasure trove for identity thieves, even though not a single case of identity theft was ever tied to access to that information. In truth, the weekly request by a local attorney for access to this database so he could search for potential clients — a request State Police found intrusive but could not deny under Maine’s Freedom of Access Act — was what got the confidentiality justification rolling and, ultimately, passed.

And, this year, there is a bill — LD 104 — before the Legislature to shield all email addresses obtained by any branch of government for “the sole purpose of disseminating noninteractive communications to individuals,” like newsletters to parents of public schoolchildren and meeting notices to those who sign up for municipal alerts.

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The bill is a direct response to the actions of a Falmouth man who, last year, submitted a request to the town for access to all email addresses contained in its “municipal bulletin” database. The man, Michael Doyle, got the list because FOAA does not shield addresses — street or email — for transitory correspondence in Maine. He then used one of those emails to hack the town’s website and send his own messages to townspeople to counter what he believed to be government propaganda. That situation was treated as an outrageous overreach of a citizen’s access to municipal information.

The “problem” of Mr. Doyle was brought to the attention of the Maine Municipal Association which, in turn, brought the issue to Maine’s Right to Know Advisory Committee, a committee that has advised the Legislature on FOAA since 2004 and which has oversight authority to recommend legislation.

That committee has requested a study of whether public access to email is a true problem in need of government intervention, or whether it’s an isolated nuisance in a single community.

No matter what that study may conclude, the specter of identity theft and the public’s shared fatigue of annoying emails are growing sentiments that are increasingly tough to separate from the need to maintain public access for our own and collective good.

Our fundamental right to public access to meetings of legislative bodies and associated depositories of public records, as decisively outlined in the Declaration of Independence, is being slowly seized by an oversized fear of computer technology’s reach.

As one lawmaker in Maine said last week, this is not 1981 any more.

The comment was made regarding the ease with which the public can now access electronic records, during an emotionally-charged work session of the state’s Judiciary Committee on a proposal — LD 345 — to end public access to concealed carry permits, access that has been available since 1981 when Maine’s concealed carry law was passed.

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At that time, the original proposal to require concealed carry permits shielded the personal information contained in applications, including psych evaluations and criminal background checks, along with the personal identifying information printed on permits: name, street address, physical description and dates of issuance and expiration. But, in a purposeful move then supported by the Sportman’s Alliance of Maine, the Maine Police Chiefs Association and the National Rifle Association, the Legislature pulled the permit and its personal identifying information out for public view to ensure the public could see for itself who is permitted to conceal carry.

Now, the NRA, the Maine Chiefs and the Sportsman’s Alliance say permits to conceal carry must be shielded from FOAA to protect private citizens.

The Maine Freedom of Information Coalition, a public access advocacy group, holds that public access to concealed carry permit holders offers a check to ensure that various officials award permits appropriately. There is no central authority for permit applicants to be screened, and applications are approved by dozens of entities, from State Police on down to three-man boards of selectmen in many rural towns. The consistency by which the permits are granted is not tracked in any official way, and maintaining public access to who grants which permits to whom guarantees some accountability of the governmental process.

There’s a more compelling public interest, though.

A couple of years ago, a Downeast Energy employee was shot to death while making a delivery. In what it sees as a legitimate move to protect its employees, last year the fuel company submitted a FOAA request for access to concealed carry permits so employees might know whether a homeowner may be armed.

There’s certainly no guarantee that an employee might not encounter an armed homeowner who doesn’t hold a permit to conceal, since Maine has one of the highest rates of gun ownership in the country but does not require guns to be registered, but Downeast takes this step to access what information it can to safeguard its employees.

However, lawmakers seem unable to hear this justifiable use of FOAA to over the din of privacy and gun rights advocates drowning any argument in support of public safety and government accountability.

Granting a concealed carry permit is a government-regulated activity, including a government-initiated application and review process, and government mandated enforcement of permittees. In Maine, state government regulates these permits just as it does permits for a host of activities that a private individual might conduct, including collecting suckers (a bait fish), owning wildlife and leading a church group camping trip. And, in many cases, the personal identifying information that appears on other permits is far more detailed that the information contained on a concealed carry permit, but no one is arguing to shield other permits. Only concealed carry permits.

In fact, the very groups that supported the public access to permits in 1981 are now vocally opposing continuing that access to “protect” permittees from would-be burglars. The justification to do so is being made because of “proof” that burglars track the addresses of concealed carry permit holders.

The evidence, supporters say, is tied to the Journal News’ decision last December to publish online interactive maps of concealed carry permit holders in two Upstate New York counties.

The problem with that “evidence” is that no burglar was caught red-handed with a copy of the Journal News map in his pocket, as dozens of Internet sites report. In fact, no burglar has been caught at all.

In the case of the White Plains burglary, police investigated an early theory that the burglary was connected to the map, but that theory never panned out.

In the case of the New City burglary, police said from the start they believed the crime was random and not connected to the map.

What has exacerbated the anti-access sentiment in Maine is that, after the Journal News’ map became a rally-cry by gun rights groups across the country to shield permits, the Bangor Daily News filed multiple FOAA requests for access to permits before a shield could be enacted. The newspaper made it clear in writing in its FOAA request that it did not intend to publish a “list” of these permits, but would use the information only for background on future reporting projects.

But, a police chief in Piscataquis County used Facebook to tell his supporters the Bangor Daily News had a different purpose, and the editors were not to be believed. And, so, they were not. Two days after the FOAA requests were delivered, the BDN withdrew its requests after members of its staff were physically threatened.

(It’s worth noting that in Bowerbank, Maine, the town next to where this police chief works, a local ordinance requires all homeowners to own guns and nobody fusses about the public knowing so.)

We, as a nation, love the notion of public access on an intellectual level. We believe in the need for government accountability and the greater good of our right to know how government conducts our business.

But, the heat of privacy interests fanned by the fear of intrusive technology appears to be moving us away from transparency. And quickly.

Is fear of technology going to accomplish what King George failed to inflict on us?

Government secrecy?

Judith Meyer is a law-abiding gun owner. She is also a managing editor of the Sun Journal in Lewiston, Maine, a member of the legislative Right to Know Advisory Committee, and a vice president of the Maine Freedom of Information Coalition.