An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Public Records Exceptions
Maine Legislature, Session 124, LD 1792
Committee: Judiciary
Amends: 5 MRSA §244-E, 10 MRSA §945-J, 10 MRSA §975-A, 10 MRSA §975, 10 MRSA §9202, 12 MRSA §549-B, 12 MRSA §550-B, 12 MRSA §6455, 20-A MRSA §11481, 20-A MRSA §13004

SECOND REGULARSESSION-2010 
Legislative Document 
No. 1792 
H.P.1280 
House of RepresentatIves, February :23,20.10 
An Act To Implement the Recommendations of the Right To Know 
Advisory Committee Concerning Public Records Exceptions 
Reported by Representative PRIEST of Brunswick for the Joint Standing Committee on 
judiciary pursuant to the Maine Revised Statutes, Title 1, section 411, subsection 6, paragraph G. 
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218. 
Prilllt!d Lln n:cydcd PJPt:1' 
7Y/~ 
frI· 71!d£~{ 
MILLICENT M. MacFARLAND 
Clerk 
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Be it enacted by the People of the State of Maine as follows: ' 
Sec. 1. 5 MRSA §244-E is enacted to read: 
§244-E. Referral service; confidentiality; public records 
1. Identity confidential. The identity of a person making a complaint alleging 
" fraud, waste, inefficiency or abl.lse through a hotliite or other referral service established 
by the Strite Auditor for the cOnfidential reportingoffliud, waste, inefficiency and abuse' 
in State Government is confidential and may not be disclosed, unless the person making 
the complaint agrees in writing to the disclosure bfthatperson's name, 
2. 
Contents of complaint confidential. 'A, complaint alleging fraud, waste, 
inefficiency or abuse made through a hotline or other referral service established by the, 
State Auditor for the confidential reporting of fraud, waste, inefficiency and abuse in 
State Government and any resulting investigation is' confidential and may not be 
disclosed except as provided in subsections 3 and 4. 
3. 
Coordination with Office of Program Evaluation and Government', 
Accountability and Attorney General. The State Auditor may disclose information that 
is confidential under this section to the Director-of the Office of Program Evaluation and 
Government Accountability and the Attorney Gerieral to ensure approp'riate agency 
referral or coordination between agencies to respond'appropriatelY to all complaints made' 
under this section. 
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4. Reports., For each complaint under this section, the State Auditor shall submit a 
written report to the Governor and publish the report on the auditor's publicly accessible 
website. The report must include a detailed description of the nature of the complaint, the 
office, bureau or division within the department or any agency that is the subject of the 
complaint, the determination of potential' cost savings, 'if any, any recommended action 
and a statement indicating the degree to which the complaint has been substantiated. The 
report must be submitted no later than 120 days after the State Auditor receives the 
complaint. In addition, the State Auditor shaH publish a semiannual report to the· 
Governor and Legislature of the complaints received by the hotline or other referral 
service, which may be electronically published. The report must include the following 
information: 
A. The total number oflcomplaints received; 
B. 
The number of'referrals of fraud or other criminal conduct to the Attorney 
General; 
C. The number of referrals of agency performance issues to the Office of Program 
Evaluation and Government Accountability; and 
D. 
The number of investigations by the State Auditor by current status whether 
opened, pending, completed or closed. 
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Sec. 2. 10 MRS A §945-J, first~, as enacted by PL 1995, c, 648, §5, is amended 
to read: 
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The following records and proceedings of the center are confidential and are not open 
te public inspection for the purposes of Title 1, chapter 13, except as otherwise provided 
in this section. 
Sec. 3. 10 MRSA §945-J, sub-§l, as enacted by PL 1995, c. 648, §5, is amended 
to read,: 
1. 
Proprietary information; otller information. 
Information provided to or 
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developed by the center and included in a business or marketing plan is confidential so 
long as public unless the person to whom the information belongs or pertains requests 
that it be designated as confidential and if, when made available, the the center has 
determined it contains proprietary information v/ould allo'll a person to obtain a business 
or competitive advantage over another person or would result in significant detriment to 
the person to whom the information belongs and when the information is not otheRNise 
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available in the public domain. 
For the purposes' of this subsection, "proprietary 
information" means information that is a trade secret 01' production, commercial or 
financial information the disclosure of which would impair the competitive position of 
the center or the person submitting the information and would make available information 
not otherwise publicly available. 
Sec. 4. 10 MRSA §975-A, as amended by ,PL 2003, c. 537, § 17 and affected by 
§53, is repealed. 
Sec. 5. 10 MRSA §975--B is enacted to read: 
§97S-B. Freedom of access; confidentiality of records 
The records of the authority are subject to the freedom of access laws, Title I, chapter 
13, except as specifically provided in this section. 
'. 1. Confidential records. The following records are designated as confidential: 
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' A. A record obtained or developed by the authority that: 
(I) A person,' including the authority, to whom the record belongs or peliairis has 
requested be designated confidential; and 
(2) The authority has determined contains information fnat gives the owner or a 
user an opportunity to obtain business 6r competitive advantage over another 
person who does not have access to the information, except through the record, or 
access to which by others would result in a business or competitive disadvantage, 
loss of business or other significant detriinent to any person to whom the record 
belongs or pertains; and 
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B. A financial statement or tax return. 
The authority shall provide to a legislative committee, on written request signed by the 
chairs of that committee, any information or record, including information designated 
confidential under this subsection, specified in the written request The information or 
i'ecord maY- be used only for the lawful, purposes of the committee and in any action 
arising out of any investigation .conducted by the committee and may not be released for 
any other purpose. 
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2. Exceptions. Notwithstanding subsection 1, the following are public records and 
are not confidential: 
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A. Any otherwise confidential information the confidentiality of which the authority 
determines to have been satisfactorily and effectively waived; 
B. 
Any otherwise confidential information that has· already lawfully been made 
. available to the public; and 
C. Impersonal, statistical or general information. 
3. . Disclosure prohibited; further exceptions. 
A personrilay not knowingly 
divulge or disclose records designated confidential by this section, except that the 
authority, in its discretion and in conformity with legislative freedom of access criteria in 
Title 1, chapter 13, subchapter I-A, may make or authorize any disclosure of inf01:mation 
.. of the following types or under the following circumstances: 
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A. 
If necessary in connection with processing any. application for, obtaining or 
maintaining financial assistance for any person; 
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B. Information requested by a financing i"nstitution or credit reporting service; 
C. Information necessary to comply with any federal or state law or rule or with any 
agreement pertaining to financial assistance; 
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D. If necessary to ensure collection of any obligation in which· the authority has or 
may have an interest; . 
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E. In any litigation or proceeding in which the authority has appeared, introduction 
for the record of any information obtained from records designated confidential by 
this section; and 
F. Pursuant to a subpoena, request for production of documents, warrant or other 
order by competent authority, as long as the. order appears to have first been served 
on the perso·n to whom the confidential information sought pertains or belongs and as 
long as the order appears on its face or otherwise to have been issued or made upon 
lawful authority. 
Sec. 6: 
MRSA §9202, slIIb-§l-B, as enacted by PL 2003,. c .. 506,.§7, IS 
amended to read: 
1-B. Records disclosw:e: and. confidentiidity; .. Records. of the' c0llP,0Iiati:~m,. as; Ii' 
subsidiary of the· authority,. a[e~ subject to the disclosure and: confidentiality provisions, 
govern ing the records of the: auiliority under section: 9fI.!f;-A 9175-ffi' .. 
Sec. 7. 12 MRSA §S49~B, slllb-§5, ~, as enacted! by. PL 1985,. c .. 20!1!, §2', is 
amended to read: 
D. An affidavit of investigatory and expl0rat0ry work sftal:I' must be filed: eaeh year, 
with the director of the survey on June 30th. At the· time ofming that affidavit, the 
claimant shall demonstrate to the director that investigatory work has been performed 
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:Con that claim at a rate of at least $5 per acre during the year ending June 30th. For 
claims recorded after, April 1 st and before June 30th, the first affidavit of 
investigatory and exploratory work sfl.a.U rriust be filed on the 2nd June 30th 
following. All work done sflaU must be described in the affidavit and sflaU include 
work wJ:H.efl that tends to rt:;veal such characteristics of the material sought as length, 
width, depth, thickness, tonnage and mineral or metal content, or, with respect to 
nonmetallic minerals, other physical characteristics of the deposit relating directly to 
the commercial exploitation of the deposit and such other information relating to the 
exploration work as the director of the survey may require. This informatiofl may be 
shared 'fvith other governmental agencies, but shall not constitute records available 
for public inspection 'or disclosure pursuant to Title' 1, section 408, during the period 
'Of time ih vihich the claim is in effect. During the period Of time in which the claim 
is in effect, this information is confidentiEtl and may not be disclosed, except that the 
information may be shared with other governmental agencies. 
Sec. 8. 
MRSA §549-B, sub-§13, as enacted by PL 1985, c. 201,§2, IS 
amended to read: 
13. Annual reports. Any person with a mining lease engaged in mine development 
or mining, under this subchapter shall, in the month of June following the year the 
operation was carried on, pay all applicable fees, rentals and royalties and file an annual 
report with the director of the survey and director of the agency having jurisdiction over 
the state-owned land setting fOlih: 
A. 
The location of the operation; 
B. 
The quality and grade of mineral products or ores produced; 
C. 
The amount of royalty wJ:H.efl that has accrued on material extractea; 
D. 
The number of persons ordinarily employed at operation below ground and 
. above ground; and 
E. 
Any other information, i'elating to the mining lease, mine development or 
mining, the director of the bureau and the director of the agency having' jurisdiction 
over the state-owned lands may require by regulation. 
This information ~a)' be shared ',vith othergovei'nmenf is confidential and may, not be 
disclosed, except that the infor'mation may' be shared with other governmental agencies; 
but shall not constitute records available for public inspection or disclosllre pursuant to' 
Title I. section 408. 
Sec. 9. 12 MRSA §550-B, sub-§6, as amended by PL 1999, c. 556, 9 17, IS 
fllliher amended to read: 
6. Information use. Information collected by the Bureau of Geology and Natural 
Areas, Maine Geological Survey under this chapter section is exempt from subject to 
Title 1, chapter 13, subchapter + I, unless the'well drilling company to whom the 
information belongs or peliains requests that it be designated as confidential and the 
bllreau has determined it contains proprietary information., For the purposes of this 
subsection, "proprietary information" means information that is a trade secret or 
production, commercial or financial information the disclosure of which would impair the 
Pag\.! 4 - 124LR2598(OI)-1 
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competitive position of the person subniirtiilg the information ana would make available 
information not otherwise publicly available. The Bureau of Geology and Natural Areas, 
Maine Geological Survey shall make information collected under this chapter available to 
any federal, 'state or mun iCipal entity or authorized agent of such entity. 
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Sec. 10. 12 MRSA §6455, sub-§1-A, ~C, as enacted by PL 1993, c. 545, §I, is 
amended to read: 
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C. Notwithstanding any provisions of paragraphs A andB: 
(I) All meetings and records of the council are subject to, the provisions of Title 
I, chapter 13, subchapter 11, except that,by majority vote of the members, the 
council may designate market studies or promotional plans developed or funded 
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by the council as confidential as provided in subsection I-B. The commissioner 
and' those members of the Legislature appointed to serve on the joint standing 
committee of the Legislature having jurisdiction over marine resource matters 
have access to all material designated confidential by the council; 
(2) Except as required by subsection 2, members of the council are governed by 
the coriflict of interest provisions set fOlth in Title 5, section 18; and 
(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. . 
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Sec. 11. 12 MRSA §6455, sub-§1-B is enacted to read: 
I-B. 
Market· studies and promotional plans; proprietary information. 
Information provided to or developed by the council and included in a promotional plan 
or market· study is public unless the council determines that· it contains proprietary 
information. 
For the purposes of this subsection, "proprietary information" means 
information that isa trade secret or production, commerCial or financial information the 
disclosure of which would impair the competitive position of the council or the person 
submitting the information and would make available information not otherwise publicly 
avai I!i.ble. 
Sec. 12. 12MRSA §8869, sub-§13, as amended by PL 2007, c. 271, §5, is 
further amended to read: 
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13. Confidential information. Information provided to the bureau voluntarily or to 
fulfill reporting requirements for the purposes of establishing and monitoring outcome-
based forest policy experimental areas, as created pursuant to section 8003, subsection 3, 
paragraph Q, is designated as confidential for the purposes of Title 1, section 402, 
subsection 3, paragraph A if the bureau has determined that failure to designate the 
information as confidential would provide competitors an opportunity to obtain business 
or competitive advantage over the person to ... t'hom the information belongs .or pertains or 
would result in loss or other significant detriment to that person public unless the person 
to whom the information belongs or pertains requests that it be designated as confidential 
and the bureau has determined it contains proprietary information. For the purposes of 
this subsection, "proprietary information" means information that is a trade secret or 
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production. commercial or financial information the disclosure of which would impair the 
competitive position of the person submitting the information and would make available 
information not otherwise publicly available. The bureau, working with the landowner 
and the panel of technical experts appointed under subsection 3-A, may publish reports as 
long as those rep0l1s do not reveal confidential infol1nation. This subsection is repealed 
July 1,2012. 
Sec. 13. 20-A MRSA §11481, as enacted by PL 1997, c. 732, §4, is amended to 
read: 
§11481. Release of information 
Notwithstanding~ny other provision of law, including, without limitation, Title 1, 
chapter 13,' subchapter I and Title 10, section 975 A 1, the authority may provide 
information regarding individual participation accounts. as required by federal law and 
laws of the state of residence of any participant or beneficiary. 
Sec. 14. 20-A MRSA §13004, sub-§2-A, ~ 
is enacted to read: 
D. Notwithstanding paragraph A, the following information concerning final written' 
decisions relating to disciplinary action taken by the commissioner against a person 
holding certification is a public record: 
(1) The name of the person; 
(2) 
The type of action taken, consisting of denial, revocation, suspension, 
surrender or reinstatement; 
(3) The grounds for the action taken; 
(4) The relevant 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. 
Sec. 15. Requests for bulk data. The Right To Know Advisory Committee shall 
review and make recommendations concerning the .issues involved with requests for 
public records in bulk, including: 
1. Public access to databases; 
2. Protection of personal information that is .not designated as confidential but is 
contained in databases that include public records; 
3. Reasonable costs for copies when public records are requested in bulk; 
4. Whether access or costs should be based on the intended or subsequent use of the 
information requested in bulk; 
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5. The acceptable formats for responses to requests, including electronic and paper; 
6; The appropriate role fodnforME in responding to requests for public records In 
bulk; and 
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7. Any other issues the advispry committee considers appropriate. 
The advisory committee shall include its recommendations in the 2011 annual report 
required under the Maine Revised Statutes, Title 1, section 411, subsection 10. 
SU~ARY 
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This bill enacts provisions providing confidentiality concerning complaints made to 
the State Auditor's hotline or referral service as enacted by Public Law 2005, chapter 682, 
and. repealed by its own terms on July 1, 2009. This bill allows the person making a 
complaint through a hotline or other referral service to allow that person's name to be 
disclosed if the person agrees in writing. It imposes a requirement that the State Auditor 
publicly report the identification of cost savings as a result of the investigation. The 
report must include recommendations for any action· necessary to achieve the cost 
savings. 
This bill also requires the State Auditor to submit a written repmi to the 
Governor and publish on the auditor's publicly accessible website all. other complaints 
within 120 days of the receipt of the complaint, indicating the nature of the complaint, the 
agency that is the subject of the complaiht and the degree to which thecorrlplaint was 
substantiated. This bill also requires the State Auditor, the Attorney General and the· 
Director of the Office of Program Evaluation and G~vernment Accountability to jointly 
establish criteria for the referral to the appropriate agency of complaints received by that 
hotline or other referral service maintained by the State Auditm; and for coordination of 
response. The State Auditor is required to report the critei"iato the joint standing 
committee of the Legislature having jurisdiction over state and local government matters 
no later than 30 days following development of the criteria or at the next convenient 
meeting of the ccmmittee. 
This bill contains the recommendations concerning public records exceptions of the 
Right To Know Advisory Committee as described in its fourth annual report. This bill 
. includes the recornmended amendments to existing, public records exceptions to provide 
as much consistency as possible across the statutes. 
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This bill amends the laws conceming the Maine International Trade Center to treat all 
proceedings and records as open to the public, ·with exceptions for proprietary 
information. 
This bill amends the laws concerning the Finance Authority of Maine with regard to 
records. 
This bill uses the template .recommended by the Right To Know Advisory 
Committee to provide that proprietary information provided by an applicant is 
c.onfidential, as is an applicant's financial statement and tax return. 
Exceptions to 
confidentiality include information for which confidentiality has been satisfactorily and 
effectively waived, information that has already been made available to the public and 
impersonal, statistical and general information. This bill also provides exceptions to the 
nondisclosure of the confidential information. 
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This bill amends the laws governing mineral exploration claims· on state lands to 
make the language consistent with other confidentiality language. 
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This bill amends the laws governing well drilling information to provide that the 
information required to be reported to the Department of Conservation, Bureau of 
Geology and Natural Areas, Maine Geological Survey is public unless the well drilling 
company reporting the information· requests that the information be designated 
confidential and the bureau determines that it is proprietary information. 
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This bill amends the laws governing the Lobster Promotion Council to establish that 
information provided to or developed by the council and included in a promotional plan 
or market study is public unless the council determines that it contains proprietary 
information. 
This bill amends the laws governing confidentiality of information related to 
experimental forestry practice areas to provide that the information is public unless the 
person to whom the information belongs or pertains requests that it be designated as 
confidential and the Department of Conservation, Bureau of Forestry determines that it is 
proprietary information. 
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This bill amends the laws governing the confidentiality of information about the 
Commissioner of Education's disciplinary actions with regard to educational personnel. 
. This bill makes public certain information concerning final written decisions relating to 
disciplinary action taken by the commissioner against persons holding certifications. 
This bill directs the Right To Know Advisory Committee to review and make 
recommendations concerning issues involved with requests for public records in bulk. 
The recommendations must be included in the advisory committee's annual report to be 
submitted by January 15,2011.