Snow covers the park in front of the State House in Augusta on Wednesday Dec. 29, 2021. Credit: Troy R. Bennett / BDN

Members of Maine’s public records advisory committee expressed support for closing a loophole that currently allows police unions to negotiate shorter timelines for destroying their officers’ discipline records on Thursday. The exemption has enabled police to purge public documentation of misconduct far sooner than the law usually allows.

Public agencies, including law enforcement, are required to preserve final records of discipline for 60 years, according to the Maine State Archives, which sets the retention schedules for public records. Those records are public in an effort to create transparency around an officer’s past misdeeds.

But an exemption to the archivist’s schedule allows collective bargaining agreements to negotiate shorter timetables. As a result, departments across the state have reached agreements with their officers to expunge misconduct records much sooner.  

Members of a subcommittee of the Right to Know Advisory Committee, which makes recommendations to policymakers on issues related to Maine’s Freedom of Access Act, found the loophole worrisome during a Thursday discussion. Their recommendation that the law should change marked the beginning of an effort to address weak spots in rules that require officials to disclose documented instances of misconduct, as chronicled in recent reporting by the Bangor Daily News.

“We need to look at the policy and purpose of the Freedom of Access Act, which clearly lays out that records are public, and the government is transparent. Yet we are saying that’s true up until parties in a contract negotiation agree to something else,” said Rep. Thom Harnett, D-Gardiner, who chairs the committee. “I don’t understand what the policy purpose would be to allow the will and action of the Legislature to be trumped in a contract negotiation.”

The committee took up the issue following the Bangor Daily News’ reporting and a complaint from Saco-based lawyer Marcus Wraight.

Wraight, who specializes in indigent criminal defense, told the committee Thursday that he is especially worried about how the destruction of discipline could undermine a defendant’s constitutional right to a fair trial.

When prosecutors charge a person with a crime, they have a constitutional obligation to turn over any information that could cast doubt on the credibility of police who might serve as a witness in court, referred to as Giglio material.

In the three years since he’s been practicing in Maine, Wraight has only received Giglio material once, he said. Suspecting prosecutors were failing in their disclosure obligations, he proactively filed dozens of requests with police departments seeking 10 years worth of officer discipline records. But many said they didn’t have any to provide.

“Obviously, the why is multifaceted, as many of them are small departments. But it raises the potential that destruction is happening elsewhere, while the obligation to disclose impeachment material remains,” Wraight said. “It becomes an empty promise when the obligation is in place but there are no records to disclose.”

Wraight was also a party of interest in a recent lawsuit against the city of South Portland in which a former officer sued to prevent officials from releasing her records to Wraight and a fellow officer who asked for copies. She and her union unsuccessfully argued that language in the collective bargaining agreement requiring written reprimands to be removed from an officer’s file after a year meant the city had to destroy them entirely.

Meanwhile, a judge found this summer that the Maine State Police unlawfully withheld discipline records from the BDN and Portland Press Herald due to a similar provision in their contract, highlighting how agencies can interpret language in their union agreements differently when it comes to removing discipline. State police leaders later said they didn’t realize the removed records were still subject to the Maine Freedom of Access Act.

The subcommittee unanimously voted Thursday to recommend changes to the law that would prohibit unions from negotiating destruction timetables of under 20 years. If the full committee adopts the recommendation, it will be forwarded to the Maine Legislature’s Joint Standing Committee on Judiciary, which could propose legislation.

Correction: A previous version of this story misstated the number of times Marcus Wraight has received Giglio material. He has received it once.

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Callie Ferguson

Callie Ferguson is an investigative reporter for the Bangor Daily News. She writes about criminal justice, police and housing.