Reporters around the state should mark two dates on their calendars. One is July 18, the day the state’s journalist-shield law takes effect, protecting journalists’ confidential sources and information from governmental intrusion. The other is April 24, the day the Maine Supreme Court told government officials in Maine that they can be protected from public scrutiny, even if they mislay or misuse millions of taxpayer dollars.
The journalist-shield law passed the Legislature unanimously and was signed into law by Governor John Baldacci right as the legislative session drew to a close in April. Proposed by Portland Democratic Representative Jon Hinck, it protects journalists from being forced by courts to disclose the identity of confidential sources or the information they reveal, on the principle that such protection will help preserve the free flow of information to the public. (Disclosure: In my role as president of the Maine Pro Chapter of the Society of Professional Journalists, I testified in favor of the bill and in favor of several suggested amendments, some of which survived the legislative process.)
The shield law does lay a groundwork where none previously existed in Maine, but it still doesn’t address the kind of problem that arose late last year when a Maine judge ordered 15 media organizations to open their notebooks to lawyers for a company that was afraid it might be sued in connection with a 2006 fire in Biddeford. (See “Legislature Moves to Protect Maine Journalists,” by Jeff Inglis, October 19, 2007.) Journalists typically object to having their work used for purposes other than to inform the public — such as to benefit a private party in a lawsuit.
But because the information given to reporters at the fire was not confidential, it would not be protected under the shield law, though “that seemed like a very reasonable thing to have included ... and I was sorry to have it dropped,” says Hinck.
The bill also fails to include a legal definition of the term “journalist.” While that does allow anyone — full-time reporter, Web publisher, blogger, pamphleteer — to make the case that they are one, Hinck worries that it might take several cases in which people are denied shield-law protection before state courts clarify who qualifies and who does not.
On the other hand, you’re screwed
State government agencies picked up a shield of their own recently when the Maine Supreme Court ruled on April 24 that giving the public access to information discussed in a Portland School Committee executive session would be “absurd” — even though what was discussed was the degree to which the superintendent and other employees were responsible for a $2.5-million budget deficit.
The school officials argued that the school staffers’ roles in the egregious shortfall was a “personnel matter.” The Portland Press Herald argued that knowing how $2.5 million in taxpayer money went missing is a matter of great public interest.
And while the school ultimately ended up releasing most of the information the Press Herald had requested, the Supreme Court’s ruling provided all government agencies cover for hiding budget-management problems behind closed doors, if they just call those problems “personnel matters” — as opposed to “who lost the taxpayers’ money matters.”
Preti Flaherty attorney Sigmund Schutz, who argued the case for the Press Herald, says the court has placed the public’s right to know about how taxpayer dollars are managed below public employees' interest in keeping job-performance shortcomings secret from the people they serve.
“The court has put great emphasis on the need for secrecy in governmental affairs,” Schutz says, marveling at the ruling that the newspaper’s argument might “lead to the absurd result that there could never be a discussion in executive session about personnel whose responsibilities are fiscal or monetary.”
But as Schutz notes: “It’s never absurd to find in favor of the public’s right to know.”