NEFAC, Maine Advocates Argue for ‘Bad Faith’ Standard to Be Applied in Public Records Case

CONTACT Justin Silverman | 774.244.2365 |


The New England First Amendment Coalition recently argued for a clear “bad faith” standard to be used by Maine courts when deciding public record cases.

Courts in the state have not yet articulated what is required for a finding of “bad faith,” often a prerequisite for attorneys fees to be provided to public record requestors under the Maine Freedom of Access Act.

NEFAC and several other open government advocates submitted an amicus brief — drafted by Public Justice — to the Maine Supreme Judicial Court on April 10.

The case is Human Rights Def. Ctr. v. Me. Cnty. Comm’rs Ass’n Self-Funded Risk Mgmt. Pool and involves what amici consider a clear example of “bad faith” that could be instructive in future cases.

NEFAC and fellow amici explained in the brief that:

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.

“The Court must ensure that the Risk Pool’s bad faith behavior does not continue,” amici wrote, “and it should do so by enforcing the consequences permitted by the statute: an award of reasonable attorney’s fees.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. The coalition regularly drafts and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know. All coalition briefs, letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Leadership Circle donors include the Rhode Island Foundation, Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Boston University, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett for the First Amendment Museum, Linda Pizzuti Henry, the Champa Charitable Foundation Fund, Connecticut Public and GBH-Boston.