By Jack Beaudoin
In Maine, the Legislature’s Judiciary Committee reviews any proposed exemption to the state’s Freedom of Access Act. You’d like to think that after 459 exemptions in the law’s 40-year history, the committee would – at the very least – have the process down cold.
Sadly, you’d be wrong. Our reporter, Dave Sherwood, details the ugly history of An Act Regarding the Confidentiality of Railroad Carrier Cargo in his story, “Legislature Sidestepped Records Law to End Public Access to Oil Train Data,” published earlier this month by the Maine Center for Public Interest Reporting.
Sherwood started reporting on crude oil shipments back in 2013 after a runaway train accident in Lac-Mégantic, Quebec, killed 47 people in a town not far from the Maine border. It was an important story here because Maine, given its proximity to the Irving Oil refinery in New Brunswick, was a major oil exporter.
Almost immediately, activists started requesting information about hazardous materials moving on Maine rails. And just as quickly, railway companies and their lobbyists sought to make that information secret, at both the state and federal level.
The commercial interests won. In October 2015, the Department of Environmental Protection stopped providing summary details of shipments of crude oil and other hazardous materials when an 80-word bill became law despite the veto of Gov. Paul LePage.
Sherwood decided to interview the bill’s sponsor, former state Rep. Mike Shaw, about the process. He discovered that Shaw was unaware of existing federal policies that required railroads to make information about hazardous materials available to state officials – which essentially undermined the raison d’etre of his bill.
“I thought if this legislator, the bill’s sponsor, knew so little about the national debate, who knows what else might be behind the law,” Sherwood told me.
Maine’s open records law lists a series of minimum requirements that any exemption must demonstrate before it can become law. Sherwood discovered that Shaw’s bill not only failed to meet many of those conditions, but that the Judiciary Committee didn’t even follow the formal review process laid out by law.
Among the other problems Sherwood brought to light:
- Maine law says that private business interests must “substantially outweigh” the public’s right to know before an exemption can be granted, but the review committee only heard from industry lobbyists and railroad companies – no environmental, safety or First Amendment experts testified.
- Shaw’s testimony suggested that the railroads would only share information about hazardous materials if it were kept secret from the public. But the committee was apparently unaware of federal rules that already required railroads to report this information to the state.
- Proponents of the bill argued that hazardous materials shipped by rail needed to be kept secret because disclosure would (a) compromise public safety, (b) reveal trade secrets and (c) improperly release commercially sensitive information. In fact, federal regulators – including the Department of Homeland Security – found that public disclosure was not a threat to public safety. And the federal government had also found that providing summary data about hazardous materials was not commercially sensitive and did not put railroads at a competitive disadvantage.
- Shaw, a conductor with Amtrak, introduced the bill at the suggestion of a freight railroad employee. Although Shaw had no conflict of interest under state law, the Judiciary chairman acknowledged that he was uncomfortable with Shaw’s relationship to the industry.
There was at least one state official who thought the exemption was a bad idea: Gov. LePage. He noted in his written veto message that he was uncomfortable denying the public details about hazardous materials traveling through their communities. But that veto was, like a hundred or so other vetoes, overturned last spring during an acrimonious fight between the legislative and executive branches.
Sherwood has filed requests with the Department of Environmental Protection — under Maine’s Freedom of Access Act — to get some or all of the information about crude shipments on a monthly basis. But given the wording of the law that shields this information, we’re not optimistic that he’ll be successful using the process.
Perhaps the good news is that as Sherwood reported the story, both Shaw and the Judiciary Committee chairman acknowledged the law needed to be fixed. But Shaw, as mentioned earlier, is no longer in the Legislature, which is now in its “short” second session. So any legislative fix is likely to have to wait until after the 2016 elections.
And in the mean time, elected officials will continue to keep secret rail cargo information that citizens in other states can freely access.
Jack is publisher and senior editor at the Maine Center for Public Interest Reporting.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.