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The Public's Right to Know is Secondary to Protecting Trade Secrets in Maine

In my last two posts I told of a new and unprecedented difficulty I was encountering in  mixing a functioning ceramic casting slip. I traced the cause to the Boothbay water supply and was able to mix a functioning casting slip by using water from a different source. An article published by NASA, The Role of Water in Slipcasting identifies a cause of the problem I was experiencing as "non-deflocculating" additions or contaminates in the water supply. Another word for deflocculant is electrolyte Electrolytes are present in the human bodyaffecting human health and well being. I do not have the expertise to speak on that subject but I can speak about the limitations placed on the ability to know what may be affecting our environment as related to the public-private transportation project underway in close proximity to our summer and winter water supplies. Current law favors private trade secrets over the public's right to know about environmental impact. 

As reported previously in this blog, the distribution of DOT funds is set up on a first 
come-first serve basis favoring communities which have private investors with deep pockets. The guideline is dated 2014, which means it was likely enacted in 2013.

In May of 2013, Senator Rebecca Millett sponsored An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Public Access to Records Relating to Public-private Partnerships. The bill was co-sponsored by: Senator Langley, and Representative Daughtry, Boothbay Representative Bruce MacDonald, Representative Malaby, Representative Nelson, Representative Parry, Representative Pouliot, and Representative Sirocki
SUMMARY
This bill implements the majority recommendation of the Right To Know Advisory Committee.
Current law requires that the Department of Transportation submit to the Legislature a bill that authorizes the agreement that implements a public-private partnership for the development of a transportation facility. This bill requires the department to publish public notice on the department's publicly accessible website or in newspapers when it has determined that a public-private proposal and agreement meets the standards of the Maine Revised Statutes, Title 23, chapter 410, subchapter 5 and to wait at least 30 days after the public notice has been published to submit the bill.
The proposed 2013 Act  addressed a conflict of interest between the communities right to know and freedom of access to information concerning toxic and hazardous substances vs the protection of trade secrets. It was voted "ought not to pass" by the Maine Legislature citing that it would compromise the ability to attract large corporations to the state. The act which sought to protect the public's right to know was voted down, keeping the confidentiality provisions favoring protecting trade secrets in place pursuant to §4251. Public-private partnerships; transportation projects
10-A. Confidential information

There was testimony from the ACLU and The Right To Know Committee. The report by David Hastings makes note that "The confidentiality provisions of the Act are broad and ambiguous about the public's right to access information collected by the Department but trade secrets are completely protected". My research on economic development statutes written since the Longley Doctrine was implemented in 1976, supports that it is no accident when there is either ambiguity or specificity used in legislative code, implicating a systematic intentional device.

Maine ACLU

Right to Know Committee/7th Annual Right To Know Report


Ironically the Hastings testimony also reports that "Members (of the Sub-Committee)
also recognized, that while some information about large projects should be available to the public, supporting free enterprise means allowing development of plans without revealing trade secrets and other information to competitors
" Nothing is more antithetical to a free enterprise system than a centrally owned and managed economy by public-private relationships! If the reason given for prioritizing trade secrets over the public's right to know about health related concerns were used everywhere throughout a free enterprise system, the USA would soon be as polluted as China. On that note, during the same legislative season, a JOINT RESOLUTION AFFIRMING THE FRIENDSHIP BETWEEN THE STATE OF MAINE AND THE REPUBLIC OF CHINA was passed declaring both Maine and the People's Republic of China share a most important relationship supported by our common values of freedom, democracy, rule of law and commitment to a free market economy; and……. China is on board with “climate change”. If free enterprise means public-private partnerships and prioritizing trade secrets over the public's right to know if public-private projects are using hazardous materials, it is inconsistent with concerns about climate change. 

In 1985, as the Maine Legislature was codifying the priority of private business trade secrets over the public's right to know if hazardous materials are used in public-private projects, it continued to proclaim that it served the public interest in protection against and disclosure about the use of hazardous materials. The popular adage is that "you can't have it both ways" - but when you are the body that writes the laws, apparently, you can- at least in rhetoric ! Boldly the contradiction is written into the same part of a same title in different subsections:


Part 3: PUBLIC HEALTH HEADING: PL 1989, C. 487, §11 (RPR)
Chapter 271: HEALTH PROGRAMS
Subchapter 1: ENVIRONMENTAL HEALTH PROGRAMS

§1691. Findings and declaration of purpose

The Legislature determines that it is in the public interest for the State to examine its emergency response mechanisms and procedures for accidents involving hazardous materials, to establish a comprehensive program for the disclosure of information about hazardous substances in the community and to provide a procedure whereby residents of this State may gain access to this information.[1985, c. 494, §2 (NEW).] (emphasis mine)

22 §1696-F. Provision of information; trade secrets
Title 22: HEALTH AND WELFARE
Subtitle 2: HEALTH
Part 3: PUBLIC HEALTH HEADING: PL 1989, C. 487, §11 (RPR)
Chapter 271: HEALTH PROGRAMS
§1696-F. Provision of information; trade secrets (repealed & replaced with special law for public-private transportation projects)

A person may withhold the identity of a specific toxic or hazardous substance, if the substance is a trade secret. For purposes of this section, "trade secret" means any confidential formula, pattern, process, device, information or compilation of information, including chemical name, that is used in any employer's business that gives the employer an opportunity to obtain any advantage over competitors who do not know or use it. All other information, including routes of exposure, effects of exposure, type and degree of hazard and emergency treatment and response procedures, must be provided if requested by the Director of the Bureau of Health and is considered a public record. [1999, c. 57, Pt. B, §4 (AMD).] (emphasis mine)
SECTION HISTORY
1985, c. 494, §2 (NEW). 1999, c. 57, §B4 (AMD).


 Title 22: HEALTH AND WELFARE was created by the Maine Legislature in 1981 for the purpose of protecting the public's health and environment, but like the Pine Tree Zone tax exemptions, originally created for low income high unemployment areas, its purpose was eroded and undermined in a mere four years.


Subtitle 2: HEALTH
Part 3: PUBLIC HEALTH HEADING: PL 1989, C. 487, §11 (RPR)
Chapter 271: HEALTH PROGRAMS
Subchapter 1: ENVIRONMENTAL HEALTH PROGRAMS 

§1691. Findings and declaration of purpose

The Legislature finds that adequate measures must be taken to ensure that any threats to the health of the people of the State posed by natural phenomena or the introduction of potentially toxic substances into the environment are identified, appropriately considered and responded to by those responsible for protecting the public's health and environment. [1981, c. 508, §1 (NEW).]
The purpose of this chapter is to create an Environmental Health Program within the Department of Health and Human Services, Bureau of Health, which would provide the department with the capability it requires to discharge its responsibilities satisfactorily, and to advise other departments and boards charged with similar or related responsibilities regarding the potential health implications of their actions. [1981, c. 508, §1 (NEW); 2003, c. 689, Pt. B, §6 (REV).]
SECTION HISTORY
1981, c. 508, §1 (NEW). 2003, c. 689, §B6 (REV).

 An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Public Access to Records Relating to Public-private Partnerships was voted Ought Not to Pass Pursuant To Joint Rule 310, May 23, 2013, leaving the 1985 status on confidentiality in place:
Current Status of Section on Confidentiality:

§4251. Public-private partnerships; transportation projects

10-A. Confidential information.   Information submitted to the department relating to a public-private partnership proposal under this subchapter is confidential and not a public record under Title 1, chapter 13, subchapter 1 if the private entity submitting the information designates the information as being only for the confidential use of the department and if:
A. The information is a trade secret as defined in Title 10, section 1542, subsection 4; or [2013, c. 208, §3 (NEW).]
B. Disclosure of the information would result in a business or competitive disadvantage, loss of business, invasion of privacy or other significant detriment to the private entity to whom the record belongs or pertains. [2013, c. 208, §3 (NEW).]
If legal action is filed to gain access to the information designated as confidential under this subsection, the private entity must defend its designation and the department shall release the information in accordance with the order of the reviewing court. Failure to defend the designation under this subsection constitutes a waiver of confidentiality by the private entity and the department shall release the information.
[ 2013, c. 208, §3 (NEW) .]
Why is the Maine Legislature writing a special set of laws for public-private relationships? The Maine Constitution says that all corporations however formed are subject to general laws.

I am in a constant battle these days to keep the Maine Constitution online as a separate stand alone document as it has been for years, I have momentary success, only, soon to be converted back to presenting the Maine Constitution as if it were a subsidiary of the Maine Legislature, which is just one of the three branches of government governed by the Constitution. Today is no exception. The first link that comes up on a google search for the Maine Constitution leads to a list of laws enacted by the Legislature.

In third position is a PDF file for the stand alone Maine Constitution but that file does not have the menu at the side where one can easily search the sections. The last time I went through this battle with the Maine Law Library, the old page for the stand alone Constitution was restored but with a menu for the Maine Legislature inserted into it. Now the link to the Maine Constitution has no menu at all and it no longer has the traditional buff colored  background, signifying its historical standing, but is on a plain white background.

The second link on the Google list leads to a document with a parchment background. At the top of the list is the Maine Constitution, followed by four links to the all-powerful Maine Legislature. Click on the link to the Maine Constitution and after going through another doorway to the Legislature one finds the Maine Constitution with a green background to match the new color for the statutes, which were formerly blue. Blue merged with parchment color becomes green.The Constitution's color is on equal standing with that of the statutes. There is a menu for the sections on the side but they are listed as Articles identified with Roman numerals, only, not by their names, making it harder to locate the section one is seeking.

I feel like I am dealing with an infantile brat at the Maine Law Library. If the Legislature wants to include a link to the Maine Constitution that is great, but that does not justify removing access to the stand alone Maine Constitution with menu links to the Articles identified by name. The Maine Constitution represents the Rule of Law authorized by the  consent by the governed. The Constitution governs the Legislature not the other way around. Longley's Doctrine" Centrally managing the economy is an essential government function which must be done by public private relationships" was decided by legislative deeming. The consent of the governed was never asked. Longley's Doctrine is grounded in a different political ideology than that of the principals on which United States and Maine Constitution are founded.

From my files: Article IV Part Third Sections 13 & 14 as they once appeared on line:

Article IV.

Part Third.

Legislative Power

Section 13.  Special legislation.  The Legislature shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation.

Section 14.  Corporations, formed under general lawsCorporations shall be formed under general laws, and shall not be created by special Acts of the Legislature, except for municipal purposes, and in cases where the objects of the corporation cannot otherwise be attained; and, however formed, they shall forever be subject to the general laws of the State.


According to the above, the Maine Legislature should be writing general laws, only, which apply to all corporations generally, not creating special acts to govern corporations making special deals with the government- otherwise known as a hegemony.

Around or about the same time that the Maine Legislature voted to protect trade secrets in public-private transportation projects over the public's right to know, the rules for the distribution of public transportation funds, were set up as a payola system in which communities must purchase access to public transportation funds via private developers. Statutory law specifically states that there must be a minimum fifty-fifty match to access publicly financed capital. If a community does not have a private developer with deep pockets- it must go to the back of the line-or get the matching fund from property taxes but communities like Boothbay with private developers can deliver two thirds of the cost to buy the public capital funds before other Maine municipalities, If there is anything left over after the hegemony buys its share of public funds, then the needs of communities lacking wealthy private developers, will receive consideration before distributing another round of public funding to the hegemony!

When a community votes to make public funds available to a public-private transportation project, the fact that public private transportation projects are protected from the public's right to know about hazardous materials by Maine law, is usually excluded from talking points in the Maine media.

AN ASIDE OBSERVATION I use my blog as a reference when I want to find a link to something I previously wrote about. When I went back to the post titled  Unspoken Transformations in State & Local Government to access MaineDOT’s Business Partnership Initiative, the link did not work. I then took this screen shot of the html code for the link:
"xn--mainedots%20business%20partnership%20initiative-z703a" is a strange looking address. It cannot be accounted for as a typo for "http://www.maine.gov/mdot/planning/docs/BPIMunicipalGuide2016.pdf. It is not even an html page or pdf doc. Where did this address come from?

When I insert an internet link I copy and paste it from the address bar and afterwards check to see that it works. I am not usually paying a great deal of attention to what the address is, until it is not working, which has happened numerously with other links posted on this blog. In the past I have found numbers inserted into a formerly working link, which when removed, restore functionality but the link shown above does not conform to standards with which I am familiar.

The original link I posted worked when tested. The link has been altered by an unknown method by an unknown agent. There is no way this could be a typo error on my part and it would be to no point for me to invent it out of thin air. I am now correcting the links in Unspoken Transformations in State & Local Government to point to http://www.maine.gov/mdot/planning/docs/BPIMunicipalGuide2016.pdf. If anything changes, I will update this observation if any further changes occur.

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