An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Public Records Exceptions
Maine Legislature, Session 129, LD 1511
Committee: Judiciary
Amends: 1 MRSA §402, 3 MRSA §997, 5 MRSA §4572, 5 MRSA §4573

Legislative Document
No. 1511
H.P. 1103
House of Representatives, April 4, 2019
An Act To Implement the Recommendations of the Right To Know 
Advisory Committee Concerning Public Records Exceptions
Reported by Representative BAILEY of Saco 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.
ROBERT B. HUNT
Clerk
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  1 MRSA §402, sub-§3, ¶C-1, as enacted by PL 2011, c. 264, §1, is 
amended to read:
C-1.  Information contained in a communication between a constituent and an elected 
official if the information:
(1)  Is of a personal nature, consisting of:
(a)  An individual's medical information of any kind, including information 
pertaining to diagnosis or treatment of mental or emotional disorders;
(b)  Credit or financial information;
(c)  Information pertaining to the personal history, general character or 
conduct of the constituent or any member of the constituent's immediate 
family; or
(d)  Complaints, charges of misconduct, replies to complaints or charges of 
misconduct or memoranda or other materials pertaining to disciplinary 
action; or
(e)  An individual's social security number; or
(2)  Would be confidential if it were in the possession of another public agency or 
official;
Sec. 2.  1 MRSA §402, sub-§3, ¶K, as amended by PL 2003, c. 392, §1, is further 
amended to read:
K.  Personally identifying information concerning minors that is obtained or 
maintained by a municipality in providing recreational or nonmandatory educational 
programs or services, if the municipality has enacted an ordinance that specifies the 
circumstances in which the information will be withheld from disclosure.  This 
paragraph does not apply to records governed by Title 20-A, section 6001 and does 
not supersede Title 20-A, section 6001-A;
Sec. 3.  1 MRSA §402, sub-§3, ¶M, as amended by PL 2011, c. 662, §2, is 
further amended to read:
M.  Records or information describing the architecture, design, access authentication, 
encryption or security of information technology infrastructure, systems and 
software, including records or information maintained to ensure government 
operations and technology continuity and to enable disaster recovery.  Records or 
information covered by this paragraph may be disclosed to the Legislature or, in the 
case of a political or administrative subdivision, to municipal officials or board 
members under conditions that protect the information from further disclosure;
Sec. 4.  3 MRSA §997, sub-§§1 and 3, as enacted by PL 2001, c. 702, §2, are 
amended to read:
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.  A 
person violating the provisions of this subsection regarding confidentiality is guilty of a 
Class E crime.
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 Working papers in the possession of the director or other entity 
charged with the preparation of a program evaluation report an entity with which the 
director has contracted for the conduct of program evaluations pursuant to section 995, 
subsection 2 are confidential and exempt from disclosure pursuant to Title 1, chapter 13, 
including disclosure to the Legislative Council or an agent or representative of the 
Legislative Council.  All other records or materials in the possession of the director or 
other entity charged with the preparation of a program evaluation report under this 
chapter an entity with which the director has contracted for the conduct of program 
evaluations pursuant to section 995, subsection 2 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 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 may not be 
released or disclosed by the director to the Legislative Council or an agent or 
representative of the Legislative Council.  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.
Sec. 5.  5 MRSA §4572, sub-§2, ¶C, as enacted by PL 1995, c. 393, §13, is 
amended to read:
C.  A covered entity may require a medical examination after an offer of employment 
has been made to a job applicant and prior to the commencement of the employment 
duties of the applicant and may condition an offer of employment on the results of the 
examination, if:
(1)  All entering employees are subjected to the same examination regardless of 
disability;
(2)  Information obtained regarding the medical condition or and disability 
information and history of the applicant is collected and maintained on separate 
forms and in separate medical files and is treated as a confidential medical 
record, except that:
(a)  Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the employee and necessary 
accommodations;
(b)  First aid and safety personnel may be informed, when appropriate, if the 
disability might require emergency treatment; and
(c)  Government officials investigating compliance with this Act are provided 
relevant information on request; and
(3)  The results of the examination are used only in accordance with this Act.
Sec. 6.  5 MRSA §4572, sub-§2, ¶E, as enacted by PL 1995, c. 393, §13, is 
amended to read:
E.  A covered entity may conduct voluntary medical examinations, including 
voluntary medical histories and disability information and history, that are part of an 
employee health or wellness program available to employees at that work site.  A 
covered entity may make inquiries into the ability of an employee to perform job-
related functions.  Information obtained under this paragraph regarding the medical 
condition or and disability information and history of an employee is subject to the 
requirements of paragraph C, subparagraphs (2) and (3).
Sec. 7.  5 MRSA §4573, sub-§2, as amended by PL 1995, c. 393, §16, is further 
amended to read:
2.  Records.  After employment or admission to membership, to make a record of 
such features of an individual as are needed in good faith for the purpose of identifying 
them, provided the record is intended and used in good faith solely for identification, and 
not for the purpose of discrimination in violation of this Act.  Records of features 
regarding physical or mental disability that are collected must be collected and 
maintained on separate forms and in separate files and be treated as confidential records;
SUMMARY
This bill implements statutory changes recommended by the Right To Know 
Advisory Committee pursuant to its responsibility to review existing public records 
exceptions.
The bill eliminates specific protection for social security numbers in the context of 
constituent communications because social security numbers are designated as not public 
records for all contexts.
Current law provides that personally identifying information concerning minors that 
is obtained or maintained by a municipality in providing recreational or nonmandatory 
educational programs or services is not a public record as long as the municipality has 
adopted an ordinance that protects the information from disclosure.  The bill repeals the 
requirement that a municipality adopt such an ordinance in order to protect the 
information about minors. 
Current law provides a public record exception for records or information describing 
the architecture, design, access authentication, encryption or security of information 
technology infrastructure, systems and software.  The bill amends the provision to 
specifically include records or information maintained to ensure government operations 
and technology continuity and to enable disaster recovery.
The bill amends the statutes governing the confidentiality of the working papers of 
the Office of Program Evaluation and Government Accountability to clarify that the 
working papers, whether in the possession of the office or an entity with which the office 
director has contracted, remain confidential even after the report is released to the public.  
It removes duplicative language that is already captured in the definition of "working 
papers."
The bill amends the Maine Human Rights Act to update and clarify the language 
describing medical history and information about disabilities, as well as to update a 
reference to employee health and wellness programs.