An Act To Implement the Recommendations of the Right To Know Advisory Committee Regarding Public Records Exceptions
Maine Legislature, Session 129, LD 2103
Committee: Judiciary
Amends: 1 MRSA §402, 3 MRSA §997, 5 MRSA §4572, 5 MRSA §4573, 5 MRSA §244-E, 7 MRSA §2992-A, 7 MRSA §2998-B

Legislative Document
No. 2103
H.P. 1498
House of Representatives, February 11, 2020
An Act To Implement the Recommendations of the Right To Know 
Advisory Committee Regarding 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:
PART A
Sec. A-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. A-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. A-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 facilitate 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. A-4.  3 MRSA §997, sub-§1, as enacted by PL 2001, c. 702, §2, is 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.
Sec. A-5.  3 MRSA §997, sub-§3, as enacted by PL 2001, c. 702, §2, is amended 
to read:
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. A-6.  3 MRSA §997, sub-§5, as enacted by PL 2001, c. 702, §2, is amended 
to read:
5.  Confidentiality of working papers Disclosure to agency or entity subject to 
program evaluation.  Except as provided in this subsection, working papers are 
confidential pursuant to subsection 3 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 evaluation when 
disclosure will not prejudice the program evaluation.  After release of the final program 
evaluation report, working papers may be released as necessary to the state agency or 
other entity that was subject to the program evaluation under this chapter.
Sec. A-7.  5 MRSA §4572, sub-§2, ¶C, as enacted by PL 1995, c. 393, §13, is 
amended by amending subparagraph (2) to read:
(2)  Information obtained regarding the Any 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
Sec. A-8.  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. A-9.  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 the individual, 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;
PART B
Sec. B-1.  1 MRSA §402, sub-§3, ¶E, as repealed and replaced by PL 1989, c. 
878, Pt. A, §2 and amended by PL 2003, c. 20, Pt. OO, §2 and affected by §4, is further 
amended to read:
E.  Records, working papers, interoffice and intraoffice memoranda used by or 
prepared for faculty and administrative committees of the Maine Maritime Academy, 
the Maine Community College System and the University of Maine System when the 
subject matter is confidential or otherwise protected from disclosure by statute, other 
law, legal precedent or privilege recognized by the courts of this State. The 
provisions of this paragraph do not apply to the boards of trustees and the committees 
and subcommittees of those boards, which are referred to in subsection 2, paragraph 
B;
Sec. B-2.  1 MRSA §402, sub-§3, ¶J, as amended by PL 2001, c. 675, §1, is 
further amended to read:
J.  Working papers, including records, drafts and interoffice and intraoffice 
memoranda, used or maintained by any advisory organization covered by subsection 
2, paragraph F, or any member or staff of that organization during the existence of the 
advisory organization.  Working papers are public records if distributed by a member 
or in a public meeting of the advisory organization;
Sec. B-3.  1 MRSA §402, sub-§3, ¶O, as corrected by RR 2009, c. 1, §1, is 
amended by amending subparagraph (1) to read:
(1)  "Personal contact information" means home personal address, home 
telephone number, home facsimile number, home e-mail address and personal, 
cellular telephone number and personal, pager number and username, password 
and uniform resource locator for a personal social media account as defined in 
Title 26, section 615, subsection 4; and
Sec. B-4.  1 MRSA §402, sub-§3, ¶U, as amended by PL 2017, c. 118, §2, is 
further amended to read:
U.  Records provided by a railroad company describing hazardous materials 
transported by the railroad company in this State, the routes of hazardous materials 
shipments and the frequency of hazardous materials operations on those routes that 
are in the possession of a state or local emergency management entity or law 
enforcement agency, a fire department or other first responder, except that records 
related to a discharge of hazardous materials transported by a railroad company that 
poses a threat to public health, safety and welfare are subject to public disclosure 
after that discharge.  For the purposes of this paragraph, "hazardous material" has the 
same meaning as set forth in 49 Code of Federal Regulations, Section 105.5; and
Sec. B-5.  5 MRSA §244-E, sub-§3, as enacted by PL 2009, c. 567, §1, is 
amended to read:
3.  Coordination with Office of Program Evaluation and Government 
Accountability and Attorney General; disclosure to state agencies.  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 General 
to ensure appropriate agency referral or coordination between agencies to respond 
appropriately to all complaints made under this section.  The State Auditor may disclose 
information that is confidential under this section related to a complaint alleging fraud, 
waste, inefficiency or abuse to a department or agency that is the subject of a complaint 
to ensure that the department or agency can respond appropriately to the complaint. The 
department or agency shall maintain as confidential any information related to a 
complaint furnished by the State Auditor.
Sec. B-6.  7 MRSA §2992-A, sub-§1, ¶C, as amended by PL 2007, c. 597, §9 
and PL 2011, c. 657, Pt. W, §6, is further amended by amending subparagraph (2) to 
read:
(2)  All meetings and records of the board are subject to the provisions of Title 1, 
chapter 13, subchapter 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, Conservation 
and Forestry 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; 
Sec. B-7.  7 MRSA §2998-B, sub-§1, ¶C, as amended by PL 2007, c. 597, §10 
and PL 2011, c. 657, Pt. W, §6, is further amended by amending subparagraph (2) to 
read:
(2)  All meetings and records of the council are subject to the provisions of Title 
1, chapter 13, subchapter 1, except that, by majority vote of those members 
present recorded in a public session, records and meetings of the 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, 
Conservation and Forestry 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; 
Sec. B-8.  Public records exceptions and confidential records; drafting 
templates.  The Office of Policy and Legal Analysis, in consultation with the Office of 
the Revisor of Statutes and the Right To Know Advisory Committee, shall examine 
inconsistencies in statutory language related to the designation as confidential or not 
subject to public disclosure of information and records received or prepared for use in 
connection with the transaction of public or governmental business or containing 
information relating to the transaction of public or governmental business and shall 
recommend standardized language for use in drafting statutes to clearly delineate what 
information is confidential and the circumstances under which that information may 
appropriately be released.  On or before September 1, 2021, the Office of Policy and 
Legal Analysis shall submit a report with its recommendations to the Right To Know 
Advisory Committee.
SUMMARY
This bill implements the recommendations of the Right To Know Advisory 
Committee concerning public records exceptions as included in Appendix C of the 
Fourteenth Annual Report of the Right To Know Advisory Committee.
Part A implements statutory changes initially recommended by the Right To Know 
Advisory Committee in 2019 pursuant to its responsibility to review existing public 
records exceptions and included in L.D. 1511, "An Act To Implement the 
Recommendations of the Right To Know Advisory Committee Concerning Public 
Records Exceptions."
Part A eliminates specific protection under the Freedom of Access Act 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. Part A removes the 
requirement that a municipality adopt such an ordinance in order to protect the 
information concerning minors.
Current law provides a public records exception for records or information describing 
the architecture, design, access authentication, encryption or security of information 
technology infrastructure, systems and software. Part A amends the provision to 
specifically include records or information maintained to ensure government operations 
and technology continuity and to facilitate disaster recovery.
Part A 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.
Part A 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.
Part B implements recommendations identified by the Right To Know Advisory 
Committee in 2019.
Four sections of Part B amend specific exceptions to the definition of public records 
in the Freedom of Access Act.
1.  Part B amends the existing public records exceptions to clarify that records, 
working papers and interoffice and intraoffice memoranda used by or prepared for faculty 
and administrative committees of the Maine Maritime Academy, the Maine Community 
College System and the University of Maine System are confidential when the subject 
matter is confidential or otherwise protected from disclosure by statute, other law, legal 
precedent or privilege recognized by the courts of this State.
2.  Part B amends the public records exceptions to clarify that working papers 
become public records once distributed in a public meeting of an advisory organization 
and not when distributed by an individual member of an advisory organization.
3.  Part B amends the public records exceptions to provide that personal contact 
information concerning public employees protected as confidential includes a person’s 
username, password and uniform resource locator for a personal social media account.
4.  Part B amends the public records exceptions to make records related to a 
discharge of hazardous materials transported by a railroad company that poses a threat to 
public health, safety and welfare subject to public disclosure after that discharge.
Part B amends the public records exceptions under the laws governing the Office of 
the State Auditor to permit the State Auditor to share confidential information related to a 
complaint alleging fraud, waste, inefficiency or abuse with a department or agency that is 
the subject of a complaint to ensure that the department or agency can respond 
appropriately to the complaint. The department or agency is required to maintain the 
confidentiality of any information related to a complaint furnished by the State Auditor.
Part B amends the public records exceptions in the laws governing the Maine Dairy 
Promotion Board and the Maine Dairy and Nutrition Council to remove references to a 
particular segment or segments of the milk industry.
Part B directs the Office of Policy and Legal Analysis, in consultation with the Office 
of the Revisor of Statutes and the Right To Know Advisory Committee, to examine 
inconsistencies in statutory language related to the designation of information and records 
as confidential or not subject to public disclosure and to recommend standardized 
language for use in drafting statutes to clearly delineate what information is confidential 
and the circumstances under which that information may appropriately be released.  The 
Office of Policy and Legal Analysis is required to submit a report with its 
recommendations to the Right To Know Advisory Committee on or before September 1, 
2021.