An Act To lmplement the Recommendations of the Right ToKnow Advisory Committee
Maine Legislature, Session 124, LD 1199
Amends: 1 MRSA §403, 1 MRSA §407, 1 MRSA §408, 1 MRSA §409, 12 MRSA §6072, 12 MRSA §6072-A, 12 MRSA §6077, 12 MRSA §6078-A

MAINE STATE LEGISLATURE 
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'124th.MAINELEGISLATURE 
Legislative Document 
No. 1199 
H.P.823 
House of Representatives, March 25,2009 
An Act To lmplement the Recommendations of the Right ToKnow 
Advisory Committee 
Reported by Representative PRIEST of Brimswick for the Joint Standing Committee oil 
Judiciary pursuant to the Maine Revised Statutes, Title 1, section 411, subsection 6, paragraph 
G. 
Reference to the Conunittee on Judiciary suggested and ordered printed under IointRule 
218. 
Printed on rl!~ydci.J P;PI!I" 
'77/~ 1/1, 7J?ac~{ 
MILLICENT M. MacFARLAND 
Clerk 
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Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 1 MRSA §403~ as repealed an<;l replaced by PL 1975,c. 758, is amended to 
read: 
. §403. Meetings to be open to public 
Except as otherwise provided by statute or by section 405, all public proceedings 
sltafl. must be open td:~lihe public, any personsltafl. must be permitted to attend any public 
proceeding and any public record or minutes of such proceedings that ffiare required by 
law 5flal+ must be made promptly and sfl.a.I.!. must be open to public inspection. 
Sec. 2. 1 MRS A §405, as amended by PL 2003, c. 709, § 1, is further amended to 
read: 
§405. Executive sessions 
Those bodies or agencies falling within this subchapter may hold executive .sessions 
subject to the following conditions. 
. 
1. Not to defeat purposes of subchapter. These sessions shall An executive session 
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may not be used to defeat the purposes of this subchapter as stated in section 401. 
2. 
Final approval of certain items prohibited. No ordinances, orders, rules, 
resolutions, regulations, contracts, appointments An ordinance, order, rule, resolution, 
regulation: contract, appointment or other official actions shall action may not be finally 
approved at an executive sessions session .. 
3. Procedure for calling of executive session. Executive sessions An executive 
session may be called only by a public, recorded vote of 3/5 ofthe·members,.present and 
voting, of such bodies or agencies. 
4. Motion contents. A motion to go into executive session must indicate the precise 
nature of the business of the executive session and include a citation of one or more 
sources of statutory or other authority that permits an executive session for that business. 
Failure to state. all authorities justifying the executive session does not constitute a 
violation .of this subchapter if one or more of the authorities are accurately cited in the 
motion. An inaccurate citation of authority for an executive session does not violate this 
subchapter if valid authority that permits the executive session exists and the failure to 
cite the valid authority was inadvertent. 
5. Matters not contained in motion prohibited. Me Matters other matters than 
those identified in the motion to go into executive session may not be considered in that 
particular executive session. 
6. Permitted deliberation. Deliberations on only the following matters may be 
conducted to- during an executive sessions on the following matters and no others session: 
A. 
. Discussion or· consideration of the employment, appointment, assignment, 
duties, promotion, demotion, compensation, evaluation, disciplining, resignation or 
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dismissal of an individual or group of public officials, appointees or employees of the 
body or agency or the investigation or hearing of charges or complaints against a 
per,son or persons subject to the following conditions: 
(I). An executive session may be held only if public discussion could be 
reasonably expected to cause damage to the individual's reputation or the 
individual'sright to privacy would be violated; 
(2) Any person' charged or investigated sHalt must be permitted to be present at 
an executive session if fie that person so desires; 
(3) 
Any person charged or investigated may request in writing that the 
investigation or hearing of charges or complaints against J:Hm. that person be 
conductcd in open session. A request, if made to the agency, must be honored; 
and 
(4) 
Any person bringing charges, complaints or allegations of misconduct 
against the individual tInder discussion sHalt must be permitted to be present. 
This paragraph does not apply to .discussion of a budget or budget proposal; 
B. 
Discussion or consideration by a school board of suspension or expulsion of a 
public school student or a student at a private school, the cost of whose education is 
paid from public funds, provided that as long as: 
(I) The student and legal counsel and, if the stlident be ~ a minor, the student's 
parents or legal guardians shall be are permitted to be jJresent at an executive 
session if the student, parents or guardians so desire7~ 
C. 
Discussion or consideration of the condition, acquisition or the use of real or 
pers.onal prope\1y permanently attached to real property or interests therein or 
disposition of publicly held property or economic development only if premature 
disclosures Of the information would prejudice the competitive or bargaining position 
of the body or agency; 
D. 
Discussion of labor contracts and proposals and meetings between a public 
agency and its negotiators. I The parties must be named before the body or agency 
may go into executive session. Negotiations between the representatives of a public 
employer and public employees may be open to the public if both parties agree to 
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conduct negotiations in open sessions; 
E. 
Consultations between a body or ag~ncy and its attorney concerning the legal 
rights and duties of the body or agency, pending or contemplated litigation, 
settlement offers and matters where the duties of the public body's or agency's 
counsel to hls the attorney's client pursuant to the code of professional responsibility 
. clearly conflict with this subchapter or where premature general public knowledge 
would clearly place the State, municipality or other public agency or person at a 
su bstanti~1 d isadvantage7~ 
F. 
Discussions of information contained iri records made, maintained or received by 
a body or agency when access by the 'general public to those records is prohibited by 
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statute; 
4. 
G. 
Discussion or approval.of the content of examiilations adm inistered by a body' or 
agency for licensing, permitting or employment purposes; consultation between a 
body or agency and any entity that provides examination services to that body or 
agency regarding the content of an examination; and review of examinations with the 
person examined; and 
H. 
Consultations between municipal officers and a code enforcement officer 
repre~enting the municipality pursuant. to Title 30-A, section 4452, subsection 1, 
paragraph C in the prosecution of an enforcement matter pending iii District Court 
when the consultation relates to that pending enforcemerit matter. 
Sec. 3. 1 MRSA §407, sub-§2, as enacted by PL 1975, c. 758, is amended to 
read: 
2. Dismissal or refusal to renew contract. Every agency shall make a written 
record of every decision involving the dismissal or the refusal to renew the contract 'of 
any public official, employee or appointee. The agency shall, except in case of 
probationary.emp10yees, set fOl1h in the record the reason or reasons for its decision and 
make findings of fact, in writing, 'sufficient to appraise apprise the individual concerned' 
and any interested member of the public of the basis· for the decision. A written record or 
a copy thereof sftal-l must be kept by the agency and made available to any interested 
membel; of the public who may wish to review it. 
. Sec. 4. 
MRSA §408, sub-§6, ~, as enacted by PL .2003, c.709, §2; is 
amended to read: 
B. 
Release of the public record reqllested is in the public i~terest because -it doing 
so is likely to contribute significantly to public understanding of the operations or 
activities of government and is not primarily in the commercial interest of the 
requester. 
Sec. 5. 1 MRSA §409, sub-§l, as amended by PL 1987, c. 477, §5, is further. 
amended to read: 
1. Records. If any body or agency or official, who has custody or control of any 
. public record, shall refuse refuses permission to sa inspect or copy or abstract a public 
record; this denial sftal-l must be made by the body or agency or official in writing, stating 
the reason for the denial, within 5 working days of the request for inspection by any 
person. Any person aggrieved by denial may appeal therefrom, within 5 working days of 
the receipt of the written notice of denial, to any Superior Court within the State. If a 
court, after a trial de novo, determines such denial was not for just and proper cause, it 
shall enter an order for disclosure. Appeals shall be are privileged in respect to their 
assignment for trial over all other actions except writs of habeas corpus and actions 
brought by the State against individuals. 
Sec. 6. 1 MRSA §409, sub-§3, as enacted by PL 1975, c. 758, is amended to 
read: 
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3. Proceedings not exclusive. The proceedings authorized by this section sftal-l are 
not be exclusive of any other civil remedy provided by law. 
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Sec. 7. 12 MRSA §6072, sub-§10, ~, as repealed and replaced by PL 2003, c. 
. 24 7,§6, is amended to read: 
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D. 
The lessee shall annually submit to the depaliment a seeding and harvesting 
repOli for the past year anda seeding and harvesting plan for the coming year.· Upon 
written request, the depaliment shall provide a copy of the repOli to the municipality 
or municipalities in which or adjacent to which the lease is located. The seeding and 
harvesti~g reports submitted by a lessee under this paragraph are considered 
confidential business record proprietaIY information for the plirposes of section 6077~ 
subsection 4. 
Sec. 8. 12 MRSA §6072-A, sub-§17-A, 'ifB, as enacted byPL 2003, c. 247, §13, 
is amended to read: 
B. 
The lessee shall mark the leased area in a manner prescribed by the 
commissioner; ilIffi 
Sec. 9. 12 MRSA §6072-A, sub-§17-A, 'TIC, as enacted by PL 2003, c. 247, § 13, 
is amended to read: 
C. 
The lessee shall annually submit to the commissioner a repOli for the past year 
on results. of the scientific research or commercial research and development 
undertaken at the lease site and a plan for the coming year. Results of commercial 
research and development submitted to the commissioner are confidential records for 
the purposes of Title 1, section 402, subsection 3, paragraph A. 
Upon '""ritten 
request, the commissioner shall provide a copy of the public records in the report to 
the municipality or municipalities in which 01' adjacent to,.vhich the lease is located.~ 
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Sec. 10. 12MRSA §6072-A, sub-§17-A, ~ 
is enacted to read: 
D. 
The lessee shall annually submit to the department a seeding and harvesting 
report for the past year and a seeding and harvesdng plan for the coming year. Upon 
written request, the commissioner shall provide a copy of the report to the 
municipality or municipalities in which or adjacent to'which the lease is located. The 
seeding and harvesting reports submitted by a lessee under this paragraph are 
considered proprietary information for the purposes of section 6077, subsection 4. 
Sec. 11. 12 MRSA §6077, su b-§4, ~A, as amended by PL 2003, c. 247, § 1 7, is 
further amended to read: 
A. 
Information submitted to the department under this section may be designated 
by the submittor as proprietary information and being orily for the confidential use of 
the department, its agents aild employees, other agencies of State Government, as 
authorized by the Governor, employees of the United States Environmental 
Protection Agency, the United States Army Corps of Engineers, the United States 
Fish and Wildlife Service, the National Marine Fisheries Services, the United States 
Department of Agriculture, the Attorney General and employees of the municipality 
in which· the aquaculture facility is located. 
The designation must be clearly 
indicated on each page or other portion of information. The commissioner shall 
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esta~lish procedures to ensure that information so designated is segregated from 
public records of the department. The department's public records must include the 
indication. that information so designated has been submitted to the department, 
giving the name of the submittor and the general nature of the information. Upon a 
request for information, the scope of which includes information so designated, the 
commissioner shall notify the submittor. Within 15 days after receipt of the notice, 
. the submittor shall demonstrate to the satisfaction of the department that the 
designated 'information should not be disclosed because the information is a trade 
secret or. production, commercial' or financial information, the disclosure of '.vhich 
\vould impair the competitive position of the submittor and would make available 
information not otherwise publicly available. Unless such a demonstration is made, 
the information must be disclosed and becomes a public record. The department may 
grant or deny disclosure for the whole or any part of the designated information 
requested and within 15 days shall give written notice of the decision to the submittor 
and the person requesting the designated information. A person aggrieved by a 
decisfon of the department may appeal to the Superior Court. Information that has 
been designated by the submittor as proprietary information may not be disclosed in a 
manner or form that permits identification of any person or vessel, except' when 
required by court order or when specifically permitted under this section. 
All 
information provided by the department to the municipality under this paragraph is 
confidential and not a public record under Title 1, chapter 13. If a request for the 
information is submitted t9 the municipality, the municipality shall submit that 
request to the commissioner to be prqcessedby the department as provided in this 
paragraph. 
Sec. 12. 12 MRSA §6077, sub-§4, ~, as enacted by PL 1991, c'. 381, §6, is 
. amended to read: 
E. .It is unlaw~1 to disclose designated information to any person not authorized by 
this section. 
(1) Any pers'on who solicits, accepts or agrees to accept, or who promises', offers 
or gives any pecuniary benefit in return for the disclosure of designated 
information is guilty of a Class 0 crime. 
(2) A person who knowingly discloses designated information, knowing that the 
disclosure is not authorized, commits a civil violation for which a penalty of not 
more than $5,000 may be assessed. 
(3) . In any action under th is paragraph, the cou,rt' shall first declare that the' 
information is a trade secret or production, commercial or financial proprietary 
. information, the disclosure of which would impair the, competitive position of the. 
submittor and would make available information. not otherwise publicly 
available. 
Sec. 13. 12 MRSA §6077, sub-§4, ~ 
is enacted to read: 
F. For the purposes of this subsection, "proprietary information" means information 
that is a trade secret or production, commercial or financial information, the 
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disclosure of which would impair the competitive posItIOn of the submittor and 
would make available information not otherwise publicly available. 
Sec. 14. 12 MRSA §6078-A, sub-§I, as enacted by PL 2003, c. 247, § 19, IS 
amended to read: 
1. Fund established. The Aquaculture Monitoring, Research and Development 
Fund, referred to in this section as "the fund," is established. All income received by the 
commissioner under this section must be deposited with the Treasurer of State, tracked 
according to its source and credited to the fund. Any balance remaining in the fund at the 
end of a fiscal year does not lapse but must be carried forward to the riext fiscal year. 
Any interest earned on assets of the fund is credited to the fund. All records related to 
harvests submitted by. aquaculture lease holders are considered confidential business 
reeaffi proprietary information for the purposes of section 6077, su bsection 4. 
Sec. 15. 20;..A MRSA §13004, sub-§2-A, as amended by PL 2007, c. 666, § I, is 
-repealed and the following enacted in its place: 
2-A.· Complaints, replies, investigations, decisions; national clearinghouse. This 
subsection governs the confidentiality of re.cords concerning complaints,· charges, 
accusations, replies, investigations and cel1ification decisions. 
A. Complaints, charges or accusations made and· investigated pursuant to section 
13020, replies to those complaints, charges or accusations and any other information 
or materials that may result in an action to deny, revoke or suspend certification are 
confidential. 
B. Any charges or information filed by the cominissioner with the District Court in 
support of a petition to revoke or suspend cel1ification and any decision of the court 
are public records. 
C. 
The following informatiori concerning final written decisions relating to 
disciplinary action taken by the commissioner against persons holding certifications 
are public records: 
(1) Name of the person; 
- (2) 
The type of action taken, consisting of denial, revocation, suspension, 
surrender or reinstatement; 
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(3) The grounds for the action taken; 
(4) The re levant dates of the action; 
(5) The type of certification and endorsements held, including relevant dates; 
(6) The schools where the person was or is employed; and 
(7) The dates of employment. 
D. The depal1ment shall report all denials, revocations, suspensions, surrenders arid 
reinstatements of certification that are not under appeal or still subject to appeal, and 
the grounds for the action taken, to a national association of state directors of teacher 
education and certification within 30 -days of the action. In reports to the national 
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association of state directors of teacher education and celiification,the department 
may not disclose any information designated in paragraph A as confidential. 
SUMMARY, 
This bill implements the recommendations of the Right To Know Advisory 
Committee. 
This bill makes technical changes to the Maine Revised Statutes, Title 1, chapter 13;' 
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The bill also makes changes to several exceptions related to records maintained by 
the Department of Marine Resources to add a definition of "proprietary information" and 
use statutory language consistent with Title 12, section 6173-A. This bilI r~quires an 
aquaculture lessee to submit an annual seeding and harvesting report. The entire repmi is 
considered proprietary information and not public, but the Department of Marine 
Resources shall provide a copy of the report upon request to the municipalities in which 
or adjacent to which the lease is located. 
The bill also provides that, confidential 
aquaculture monitoring program information may not be disclosed in a manner or form 
that permits identification of any person or: vessel, except as required by' court order or 
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when otherwise specifically permitted. 
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This bilI also chtrifies confidentiality with regard to educational personnel 
credentialing records concerning actions taken by the Commissioner of Education. This 
bill clarifies that complaints, charges or accusations made and investigated pursuant to 
Title 20-A, section 13020, repli'es to those complaints, charges or accusations and any 
other information Or rTi'aterials that may result in an action to deny, revoke or suspend 
certification are confidential, but that the action taken by the commissioner, whether it is 
denial, revocation, suspension, surrender or reinstatement, is public. The grounds for the 
action are also public. In addition, specific information about the person is public once 
the action is taken: the name of the person; the relevant dates of the action; the type of 
certification and endorsements held, including relevant dates; the schools where the 
person was or is employed; and the dates of employment. In addition, this bill clarifies 
that the Department of Education shall report information about disciplinary action to a 
national association of state directors of teacher education and certification, including the 
grounds for th'e action. The department may not repmi to the national association of state 
directors of teacher education and certification information that is designated confidential 
by Title 20-A, section 13004. 
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