Because they thought it was OK to work with a paper company in secret to develop new water quality standards, some staff members at the Department of Environmental Protection will soon undergo training in adhering to the state’s public records law. Their session can be short and simple. Documents created by, reviewed by or commented upon by DEP employees are, with rare exceptions, public documents. The fact that private companies don’t want them to be public is irrelevant.
Last spring, DEP employees began working with two paper companies
to draw up voluntary agreements to improve the water quality in the Androscoggin River in the next decade. When environmental groups learned that the process was being done in private, they sought copies of drafts of the agreements through the FOA law. They also complained to the Office of the Attorney General, which then launched an investigation. The commissioner of the DEP, Dawn Gallagher, resigned last month amid the furor.
The agreement with one company, International Paper Co., was drafted by the DEP, slightly modified by IP
and reviewed and agreed to by DEP staff. Drafts of the agreement were retained and produced in response to the FOA requests.
The other company, Rumford Paper, suggested from the start that it would draft an agreement and keep all notes and documents throughout the process. This odd arrangement should have set off alarms with the longtime state employees who were working on the agreement. Instead, DEP personnel agreed to this arrangement because the agreement was voluntary and they were busy with other things. In doing so, they violated the Freedom of Access Act, the AG’s office concluded last week. The office did not, however, consider the violation willful, so no DEP officials will be fined.
In one convoluted sentence, the AG’s office tries to explain why. “By returning the documents to Rumford officials at the conclusion of their meetings, the DEP staff intentionally placed the documents beyond public view; but because they did not appreciate that what they were handling was already a public record, it does not appear that they intentionally violated the FOAA.” It is hard to understand how intentionally placing documents beyond public view is not willful.
With regard to these specific agreements, the point is somewhat moot since the DEP has voided both agreements and vowed to start the process over with much more public scrutiny.
More important, Attorney General Steven Rowe recommended, and Gov. John Baldacci called for, further training of state employees, not just those at the DEP, about the Freedom of Access Act. The message from trainer should be straightforward: You are doing the public’s work so your work should be public.