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It should come as little surprise that we agree with Berney Kubetz. He is, after all, the Bangor Daily News’ lawyer. But he is absolutely right when highlighting the importance of a recent court ruling in the paper’s favor, and in support of the principles that underpin the Maine Freedom of Access Act (FOAA).
“That law was created to enable the public to access and monitor the actions of our government officials. The decision is particularly important at a time when police decision-making has been called into question in Maine and throughout the United States,” Kubetz said.
Together with the Portland Press Herald, the BDN jointly sued the Maine State Police arguing that final officer disciplinary records are public under the FOAA. The papers had separately requested five years of disciplinary records in order to investigate transparency (or lack thereof) surrounding officer misconduct. Of the 85 pages of documents eventually received, 14 had redactions.
The BDN and Press Herald argued that these redactions were unlawful. And Penobscot County Superior Court Justice William Anderson agreed in many cases, finding in a May 26 ruling that some of the redacted information must be disclosed and that the state must conduct another search for records because its initial search was “inadequate.” The judge allowed a handful of the redactions to stand on the grounds of protecting medical information and information related to another employee’s work plan or performance.
“The decision underscores the need for Maine law enforcement agencies to open their records to public scrutiny, including especially the records of police officers who have been disciplined but allowed to continue in their jobs or who are relieved of their duties and simultaneously paid severance packages funded by taxpayer dollars,” Kubetz continued.
The decision, and the process required to reach it, also continues to underscore the need to strengthen Maine’s freedom of access law. We won, but it took two years from the initial request, some funding from the Pulitzer Center and pro bono work from students at the Media Freedom and Information Access Clinic at Yale Law School. That is time and resources that many media organizations aren’t able to dedicate. Even a victory such as this shows the limits of Maine’s FOAA, and the need to bolster it to ensure Maine people have timely and actual access to public information.
“Whether we grant the state’s public records ombudsman powers to enforce the law or provide statutory incentives such as mandatory attorney fees for prevailing plaintiffs, we need better tools to protect the public’s right to know” Justin Silverman, the executive director of the New England First Amendment Coalition, wrote in a BDN column earlier this year.
That is just as true after this ruling as it was months ago. Because, unfortunately as we’ve seen in this case and other instances, officials and institutions often lean on the litany of exceptions that can limit the FOAA’s reach. Rather than erring on the side of disclosure and transparency, we’ve observed an inclination to stretch these exceptions and withhold information.
For example, though it ultimately didn’t work for the state police here, they tried to argue that settlement agreements between unions and the state police “should only be treated as a final written decision in cases where there is no other documentation of final disciplinary action,” as summarized in the judge’s ruling. Under Maine’s FOAA, certain personnel records like complaints and accusations of misconduct are confidential but final written decisions about disciplinary action are not.
Anderson ruled that settlement agreements in this case did amount to “final written decisions” and are therefore no longer confidential.
“To hold otherwise in this case would allow the State Police to easily circumvent the public records disclosure laws and effectively shield disciplinary documents from public inspection,” Anderson said in his ruling.
Thankfully, the judge sided with the newspapers on this question. And more importantly, he sided with the principle of disclosure and the public’s right to know. But without stronger FOAA protections, we expect people in power to continue to stretch the limits of its many exceptions.