DEP found in violation of state law AG: Documents withheld in Androscoggin cleanup

An investigation by Maine Attorney General Steven Rowe’s office has found that Department of Environmental Protection staffers violated the state’s public records law by not making available documents from private meetings with paper company officials.

In response, Gov. John Baldacci announced Friday that workers will receive additional training in Maine’s Freedom of Access Act.

The attorney general’s investigation focused on closed-door meetings that officials with the DEP held last summer with executives of the Rumford Paper Co. The two sides were attempting to broker additional agreements on cleanup plans for the Androscoggin River.

Several environmental and open-government groups questioned the legality of the private meetings as well as the fact that the DEP allowed Rumford to keep all drafts and notes from the meetings, thereby preventing public scrutiny.

Under increasing pressure from the groups, the DEP eventually voided the agreement with Rumford and a similar, less-controversial agreement with International Paper Co. But criticism of the DEP’s dealings with the paper industry only intensified after allegations that the agency’s head, Dawn Gallagher, had tried to make a deal on Androscoggin legislation with a state legislator who works for IP.

Commissioner Gallagher resigned last week amid the swirling controversies.

On Friday, Rowe’s office said the private meetings did not violate any laws. Instead, Rowe faulted the DEP workers for agreeing to Rumford’s request that the agency allow the company to keep all copies of the working papers to shield them from public view.

Rumford subsequently provided copies of most documents to the Attorney General’s Office, although the company acknowledged destroying some papers.

Rowe’s office, which launched its own investigation into the negotiations last month, concluded that the staffers did not need to be punished because their actions resulted from a misunderstanding of the FOAA, not willful deceit. Rowe, however, recommended that the state improve FOAA training for employees.

The attorney general’s report said the FOAA clearly states that the public has the right to know about the activities of state agencies, including “having the ability to inspect documents that constitute public records, such as drafts of a binding agreement between an agency and a private, regulated entity.”

“By not keeping those documents, DEP staff attempted to avoid the creation of a public record that would be open to public inspection,” the report states.

“However, they did not manage to avoid creating a public record; instead, they failed to retain documents that had already become public records and thereby precluded the opportunity for public inspection of those records. That action, in our view, was in violation of the FOAA.”

One half-hour after Rowe released the report, Baldacci issued a statement that he is calling for additional training for state employees on the public records laws. The Democratic governor called the DEP situation “unfortunate” and said the state would do “everything possible to make sure that we’re completely transparent and there is access to every document that needs to be furnished.”

Baldacci spokeswoman Crystal Canney said state attorneys and members of the governor’s Cabinet have received FOAA training in the past. But Canney acknowledged that most lower-level state employees likely would have received training only if they sought it.

New training could begin within a month, she said.

“There will be different levels of training for people; it’s going forward and will be going forward very soon,” Canney said.

A representative of the Maine Freedom of Information Coalition, which was one of the group’s pressuring the DEP to open up the negotiating process with the paper companies, said she was pleased that Rowe and Baldacci both called for additional training. Now it is up to Baldacci’s administration to follow through on the pledge.

Judy Meyer, vice president of the group and managing editor of the Lewiston Sun-Journal newspaper, said she often hears complaints from citizens who were wrongly denied access to records by public employees who do not understand the law.

She said the problem is most severe inside the state bureaucracy.

“What we really need is training in the rank and file” of state offices, Meyer said.