An Act Concerning Public Records Exceptions
Maine Legislature, Session 123, LD 2212
Committee: Judiciary
Amends: 3 MRSA §997, 4 MRSA §809, 5 MRSA §7070, 7 MRSA §2992-A, 7 MRSA §2998-B

Legislative Document 
No. 2212 
H.P. 1579 
House of Representatives, February 13,2008 
An Act Concerning Public Records Exceptions 
Reported by Representative SIMPSON of Auburn for the Joint Standing Committee on 
Judiciary pursuant to the Maine Revised Statutes, Title 1, section 432, subsection 1. 
Reference to the Committee on Judiciary suggested and ordered printed under Joint Rule 
218. 
7Y/~ 
/J7.1Jlac;:fd~{ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 1 MRS A §402, sub-§3, ~O, as enacted by PL 2005, c. 381, §3, is 
amended to read: 
O. 
Personal contact information concerning public employees, except when that 
information is public pursuant to other law. For the purposes of this paragraph: 
(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 
lOin Title 14, section 8102, subsection;! 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 provlSlons relative to 
conducting and issuing program evaluation reports under this chapter. 
1. Review and response. Prior to the presentation of a program evaluation under 
this chapter to the committee by the office, the director of the evaluated state agency or 
other entity must have an opportunity to review a draft of the program evaluation report. 
Within 15 calendar days of receipt of the draft report, the director of the evaluated state 
agency or other entity may provide to the office comments on the draft report. 
If 
provided to the office by the comment deadline, the comments must be included in the 
final report when it is presented to the committee. Failure by the director of an evaluated 
agency or other entity to submit its comments on the draft report by the comment 
deadline may not delay the submission of a report to the committee or its release to the 
public. 
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. 
2. Submission of final report to committee. The director shall issue program 
evaluation reports, favorable or unfavorable, of any state agency or other entity, and these 
reports are public records. The director shall notify the committee when each final 
program evaluation report under this chapter is completed. The report must then be 
placed on the agenda for a future committee meeting. At the meeting where a report 
appears on the agenda for the first time, the director will release that report to the 
committee and to the public simultaneously. The committee, at its discretion, may vote 
to endorse, to endorse in part or to decline to endorse the report submitted by the director. 
If the committee determines it is necessary, the committee may report out to the 
Legislature legislation to implement the findings and recommendations of any program 
evaluation report presented to it by the office. 
3. Confidentiality. The director shall issue program evaluation reports, favorable or 
unfavorable, of any state agency or other entity, and these reports are public records, 
except that, prior to the release of a program evaluation report pursuant to subsection 2 or 
the point at which a program evaluation is no longer being actively pursued, all papers, 
physical and electronic records and correspondence and other supporting materials 
comprising the working papers in the possession of the director or other entity charged 
with the preparation of a program evaluation report are confidential and exempt from 
disclosure pursuatlt to Title 1, chapter 13. All other records or materials in the possession 
of the director or other entity charged ',lAth the preparation of a program evaluation report 
under this chapter that would otherwise be confidential or exempt from disclosure are 
exempt from disclosure pursuant to the provisions of Title 1, chapter 13. Prior to the 
release of a program evaluation report pursuant to subsection 2 or the point at 't't'hich a 
program evaluation is no longer being actively pursued, all papers, physical and 
electronic records and correspondence and other supporting materials comprising the 
","orking papers in the possession of the director or other entity charged '''''ith the 
preparation of a program evaluation report are confidential and may not be released or 
9 
disclosed by the director to the Legislative Councilor an agent or representative of the 
Legislative Council. This subseotion may not be construed to prohibit or prevent public 
access to the records of a state agenoy or other entity in the possession of the director that 
'vvould otherwise be subj ect to disclosure pursuant to the provisions of Title I, chapter 13. 
The director shall refer requests for access to those records directly to the state agency or 
other entity that is the offioial custodian of the requested records, which shall respond to 
the request for public records. 
3-A. Confidentiality of workin2 papers. Except as provided in this subsection, 
working papers that support reports released pursuant to subsection 2, or that are related 
to any program evaluation no longer being actively pursued, are confidential and exempt 
from disclosure pursuant to Title 1, chapter 13. Working papers may not be disclosed to 
any person, including the Legislative Councilor an agent or representative of the 
Legislative Council. For the purposes of this subsection, "working papers" means all 
papers, physical and electronic records and correspondence and other supporting 
materials comprising the working papers in the possession of the director or other entity 
charged with the preparation of a program evaluation report. 
In accordance with 
subsection 4, all records or materials in the possession of the director or other entity 
charged with the preparation of a program evaluation report under this chapter that would 
otherwise be confidential or exempt from disclosure also remain exempt from disclosure 
pursuant to the provisions of Title 1, chapter 13. Prior to the release of the final program 
evaluation report, the director has sole discretion to disclose working papers to the state 
agency or other entity subject to the program evaluation as long as disclosure will not 
prejudice the program evaluation and the working papers remain confidential in the hands 
of the receiving entity. 
After the release of the final program evaluation report, the 
director has sole discretion to release working papers, as long as they remain confidential 
in the hands of the receiving entity, as necessary to: 
A. 
The department, commission or agency that was subject to the audit or 
investigation; 
B. Federal agencies providing grants to the audited entity under paragraph A; 
C. 
Law enforcement agencies for the purpose of criminal law enforcement or 
investigations; 
D. Other auditors in their work reviewing the office; or 
E. Other departments of audit existing within State Government. 
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. 
4. Information available to office. Upon request of the office and consistent with 
the conditions and procedures set forth in this section, state agencies or other entities 
subj ect to program evaluation must provide the office access to information that is 
privileged or confidential as defined by Title 1, chapter 13, which governs public records 
and proceedings. 
A. 
Before beginning a program evaluation under this chapter that may require 
access to records containing confidential or privileged information, the office shall 
furnish a written statement of its detennination that it is necessary for the office to 
access such records and consult with representatives of the state agency or other 
entity to discuss methods of identifying and protecting privileged or confidential 
information in those records. During that consultation, the state agency or other 
entity shall inform the office of all standards and procedures set forth in its policies or 
agreements to protect information considered to be confidential or privileged. The 
office shall limit its access to information that is privileged or confidential by 
appropriate methods, which may include examining records without copying or 
removing them from the source. 
B. 
Documentary or other information obtained by the office during the course of a 
program evaluation under this chapter is privileged or confidential to the same extent 
under law that that information would be privileged or confidential in the possession 
of the state agency or other entity providing the information. 
Any privilege or 
statutory provision, including penalties, concerning the confidentiality or obligation 
not to disclose information in the possession of a state agency or other entity or its 
officers or employees applies equally to the office. 
Privileged or confidential 
information obtained by the office during the course of a program evaluation may be 
disclosed only as provided by law and with the agreement of the state agency or other 
entity subject to the program evaluation that provided the information. 
C. 
If the office accesses information classified as privileged or confidential 
pursuant to state agency or other entity policy or procedures or by agreement, the 
office shall comply with the state agency's or other entity's standards or procedures 
for handling that information. The office may include in its working papers the 
excerpts from infonnation classified as confidential or privileged as may be necessary 
to complete the program evaluation under this chapter, as long as the use does not 
infringe on department policies or procedures applicable to the original provision of 
infonnation. 
S. 
Confidentiality of wOFIHng papeFs. 
Except as provided in this subsection, 
working papers are confidential and may not be disclosed to any person. Prior to the 
release of the final program evaluation report, the director has sole discretion to disclose 
working papers to the state agency or other entity subject to the program e¥aluation when 
disclosure will not prejudice the program evaluation. After release of the final program 
evaluation report, ","orking papers may be released as necessary to the state agency or 
other entity that was subject to the program evaluation under this chapter. 
6. Confidential sources. If data supplied by an individual are needed to initiate, 
continue or complete a program evaluation under this chapter, the director may, by 
written memorandum to the file, provide that the individual's identity will remain 
confidential and exempt from disclosure under Title 1, chapter 13, and this written 
memorandum protects the identity of the person from disclosure under Title 1, chapter 
13, notwithstanding any other provision of law to the contrary. 
7. Disposition of final report. A final copy of a program evaluation report under 
subsection 2, including recommendations and the evaluated state agency's or other 
entity's comments, must be submitted to the commissioner or director of the state agency 
or other entity examined at least one day prior to the report's public release, and must be 
made available to each member of the Legislature no later than one day following the 
report's receipt by the committee. The office may satisfy the requirement to provide each 
Legislator a copy of the report by furnishing the report directly by electronic means or by 
providing notice to each Legislator of the availability of the report on the office's publicly 
accessible site on the Internet. 
Sec. 3. 4 MRS A § 17, sub-§3, as amended by PL 1987, c. 776, § 1, is further 
amended to read: 
3. Investigate complaints. Investigate complaints with respect to the operation of 
the courts and relating to court and judicial security. Notwithstanding any other provision 
of law, sueh complaints and investigative files that relate to court and judicial security are 
confidential. 
Nothing in this section precludes dissemination of such infonnation to 
another criminal justice agency; 
Sec. 4. 4 MRSA §809, as amended by PL 1977, c. 696, §27, is repealed. 
Sec. 5. 
MRSA §7070, sub-§l, ~A, as enacted by PL 1989, c. 402, § 1, IS 
amended to read: 
A. 
Notwithstanding any confidentiality provlSlon other than this subsection, 
applications, resumes and letters and notes of reference, other than those letters and 
notes of reference expressly submitted in confidence, pertaining to the applicant hired 
are public records after the applicant is hired, except that personal contact 
information is not a public record as provided in Title 1, section 402, subsection 3, 
paragraph O. 
Sec. 6. 5 MRSA §7070, sub-§2, ~-1, as enacted by PL 1997, c. 124, §2, is 
amended to read: 
0-1. 
Personal information pertaining to the employee's race, color, religion, sex, 
national origin, ancestry, age, physical disability, mental disability and marital status; 
social security number; home telephone number and home address personal contact 
information as provided in Title 1, section 402, subsection 3, paragraph 0; and 
personal employment choices pertaining to elected payroll deductions, deferred 
compensation, savings plans, pension plans, health insurance and life insurance. 
When there is a work requirement for public access to personal information under 
this paragraph that is not otherwise protected by law, that information may be made 
public. The Director of the Bureau of Human Resources, upon the request of the 
employing agency, shall make the determination that the release of certain personal 
information not otherwise protected by law is allowed; and 
Sec. 7. 5 MRS A §15321, sub-§3, ~D, as amended by PL 2005, c. 19, §4, is 
further amended to read: 
D. 
The records and proceedings of the technology centers are not considered public 
for the purposes of Title 1, chapter 13~ except that the following records are 
designated as confidential for the purposes of Title 1, section 402, subsection 3, 
paragraph A: 
(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-§l, ~C, as corrected by RR 1997, c. 2, §30, is 
amended to read: 
C. 
Notwithstanding paragraphs A and B: 
(l) 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 
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-§l, ~C, as corrected by RR 1997, c. 2, §31, is 
amended to read: 
C. 
Notwithstanding paragraphs A and B: 
(1) Employees of the council, including employees hired after July I, 1996, are 
state employees for the purposes of the state retirement provisions of Title 5, Part 
II 
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 00affi 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 arc 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: 
1. Title 1, section 402, subsection 3, paragraph B; 
2. Title I, section 402, subsection 3, paragraph N; 
3. Title 5, section 1545; 
4. Title 5, section 1976, subsection 2; 
5. Title 5, section 22009, subsection 2; 
6. Title 7, section 607, subsection 5-A, as applied to Title 7, section 607, subsection 
4; 
7. Title 7, section 1052; 
8. Title 7, sections 4204 and 4205; 
9. Title 9-B, section 226; and 
10. Title 9-B, section 252. 
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 maj ority 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.