Amicus Briefs, Letters and Statements

At the heart of this case is a question of utmost interest to the public: how much money did Kennebec County and its insurer, the Maine County Commissioners Association Risk Management Pool (the “Risk Pool”) pay a Black man who alleged he had been beaten and pepper sprayed by a white guard at the Kennebec County jail? The answer should have been reasonably easy to find out— it is undisputed that information relating to settlement agreements between individuals and public entities is subject to disclosure under the Maine Freedom of Access Act (FOAA). But instead, what began as a straightforward FOAA request resulted in over a year-and-a-half of time- and resource-consuming advocacy that ultimately revealed an overarching scheme of secrecy that unlawfully shields settlement amounts from the public. . . . By intentionally omitting settlement sums from documents stating the terms of the settlement and by evading FOAA requests for that information, the Risk Pool has engaged in a bad faith attempt to withhold public records. Given this bad faith, requiring the Risk Pool to pay reasonable attorney’s fees to HRDC is necessary to deter the Risk Pool and other similar public entities from violating the FOAA, and to compensate HRDC for the time it spent litigating this appeal.

A police officer who is disciplined should not have any greater privilege of confidentiality than a school teacher, a county administrator, or any other public employee. . . . Through this bill, the Legislature requires much needed public access to the disciplinary records of all public employees. It prevents those records from being destroyed or deemed confidential based on collective bargaining agreements. The bill also requires agencies to provide enough written detail in disciplinary records for the public to understand the underlying behavior and ensures that all disciplinary records are retained for a reasonable period of time to be determined by the State Archivist, not individual agencies that might otherwise favor secrecy.

Both the Supreme Court and this Court have repeatedly made clear that “state action to punish the publication of truthful information seldom can satisfy constitutional standards. [T]he press,” including citizen journalists, “must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” When information involves a matter of public concern, the First Amendment protects publishers from both prior restraint and subsequent punishment, absent a demonstrated need to vindicate a state interest of the “highest order.”

We hope our comments here inform and underscore the need for additional revisions addressing access for non-litigants. Changes to the current court rules should make clear that any hearing that would otherwise be in-person and open to the public shall also be accessible to all members of the public remotely. There should be no difference between the access courts provide the public in-person and what they provide online.

As members of the news media and of organizations that defend the First Amendment and newsgathering rights of the press, amici have a strong interest in ensuring that the public’s presumptive right to inspect judicial records under the First Amendment is not infringed and that unconstitutional, speaker-based restrictions on the exercise of First Amendment rights are not imposed.