A Superior Court judge will soon decide whether the Maine State Police illegally withheld trooper disciplinary information requested by two daily newspapers in 2020.
Justice William Anderson heard arguments in Penobscot County Superior Court Wednesday morning in a case that began about a year ago, when the Bangor Daily News and the Portland Press Herald jointly sued Maine’s largest police force over redactions it made to final records of officer discipline.
The news outlets had separately requested several years worth of those records under Maine’s Freedom of Access Act and used them to collaborate on an investigation into the state police’s lack of transparency around officer misconduct.
Under Maine law, the personnel records of public employees are mostly confidential except for final records of discipline. But state troopers’ records were written in such a vague way that in most cases, it was impossible to understand why the officer was punished, the investigation found. The reporters uncovered some of the misconduct concealed in the records, learning that the agency sometimes handed down lenient sanctions for serious misbehavior.
But some misbehavior has remained secret because of the 85 pages of documents the state police turned over, 14 of them contained redactions — a move the news outlets argued was unlawful.
The lawsuit seeks to uncover that information, as well as resolve confusion over language in the state police’s union contract, which allows the agency to remove misconduct records after certain periods.
On Wednesday, Assistant Attorney General Kelly Morrell argued on behalf of the state that the agency blacked out parts of the discipline records that are confidential under exceptions to the disclosure law. That includes medical conditions, proposed discipline that was not ultimately imposed, or statements a trooper made that fall under so-called Garrity protections, which prevent employers from compelling public employees to incriminate themselves during investigatory interviews.
The medical exception should also be interpreted broadly, she said. The news outlets argued that the state police should only redact specific diagnoses or treatments recommended by a medical professional.
“Just because we’re dealing with state employees doesn’t mean they have no privacy rights under the law,” Morrell said. The state has also sought to keep confidential an index of which exceptions apply to which record, which it submitted to the judge in private last year.
The news outlets, however, argued the state interpreted the confidentiality exceptions too broadly.
“The state police have strong privacy rights and those are protected by the statutes here, which only allow discipline to come out when it’s been imposed,” said Alasdair Phillips-Robins, a third-year student with Yale Law School’s Media Freedom and Information Access Clinic, which is supporting the news outlet’s case.
“It’s not about attacking the integrity of state police. It’s the opposite. It’s about allowing the public to understand how the police operate and how the police police themselves so the public can continue to have confidence.”
As for the provision in the troopers’ union contract that allows the agency to scrub discipline records after set periods, that language is intended to let officers repair their professional reputations, Morrell said.
Releasing copies would “run counter to the spirit and intent of the provision.” She could not give a definitive answer to the judge’s question as to whether those records were always destroyed after being removed, a point that piqued the judge’s interest.
“That’s really the wrong way to look at it,” Phillips-Robins countered. “That would allow an already ambiguous provision in collective bargaining agreement to override what the Legislature has decided should and should not be public.”
The American Civil Liberties Union of Maine also appeared Wednesday to show support for the news outlets. While the public is entitled to discipline records regardless of their import, “it is important to note how strong the public interest is,” said Chief Counsel Zachary Heiden.
Anderson said he expected to have a decision soon.