Police Misconduct Records in Maine
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(Last updated Nov. 21, 2022)
Maine’s Freedom of Access Act governs the disclosure of public records, such as police reports and personnel documents. (1) FOAA intends to provide transparency and guarantees that those who do the “people’s business” — public employees — work openly and that work is subject to public inspection. (2) In that spirit, all exemptions to disclosure under FOAA should be narrowly construed in a way that promotes rather than restricts public access. (3)
Still, certain exemptions to FOAA are routinely used to maintain secrecy, particularly § 402(3)(a) which states that “records that have been designated confidential by statute” are not deemed public records within the meaning of FOAA. (4) Put more simply: if another law allows a record to be kept secret, that law trumps any obligation for disclosure under FOAA.
Law enforcement agencies in Maine often use this exemption to justify withholding misconduct records. Their safe harbor comes in the form of a separate law which pertains to the confidentiality of personnel records. Specifically, 30-A M.R.S. § 503(B)(5) stipulates that complaints of misconduct and investigatory records contained in personnel files can in certain circumstances be exempt from disclosure. (5) Personnel records regarding misconduct are open if disciplinary action is taken and the final written decision is public. (6) But, as is often the case, misconduct records can be kept secret if the investigation did not result in discipline or the charges against the officers were not sustained. (7)
Even with disciplinary action, however, obtaining misconduct records can be a challenge. State police, in particular, are reluctant to comply with the law. Despite FOAA requiring disclosure of records once final disciplinary action is taken, state police officials are in some cases improperly redacting those records to hide the circumstances of the misconduct.
In a complaint filed in 2021 in Cumberland County Superior Court, media organizations argued that certain redactions made by state police between 2015 and 2019 violated FOAA because they were either unnecessary or left the misconduct report so vague that the reason for the discipline couldn’t be ascertained. (8) The lawsuit was joined with another filed in Penobscot Superior Court the following year. (9)
On May 26, 2022, the Penobscot Superior Court ordered the State of Maine to remove most of the redactions from the documents, except for redactions containing medical information. (10) Additionally, the court ordered the state to perform an additional search for missing documents which were referenced in union settlement disputes, but not provided to the newsroom plaintiffs. (11) The court also held in these cases that complaints and mere allegations can be kept secret under FOAA, but details of the actions leading to discipline are not deemed confidential. (12)
A large part of the legal dispute was over the interpretation of 5 M.R.S. §7070(2)(E), a law that can be used to withhold many personnel records. (13) The state argued that §7070(2)(E) allowed it to redact additional information contained in arbitration agreements that was not included in the final written decisions of disciplinary action. (14) Nevertheless, the court held that information in arbitration agreements that is directly related to the misconduct ultimately disciplined may not be redacted by the state. (15) In fact, the court held that settlement agreements themselves constitute final written decisions. (16)
Despite the transparency challenges posed by § 503 and §7070, state law does require the release of misconduct records when there is a completed investigation into deadly or physical force by police officers, regardless of whether disciplinary action was taken. (17) The caveat, however, is that if charges are brought against the officer, the record can remain confidential until the end of that officer’s criminal case. (18)
The unfortunate result of these statutory carveouts and law enforcement’s proclivity to withhold public records is that many aspects of police misconduct often remain secret. This is a major problem not just for journalists but for all citizens.
(1) See Me. Stat. Title 1 § 401 (LexisNexis 2021).
(3) See, e.g., Citizens Commc’ns Co. v. Att’y Gen., 2007 Me. 114 (2007)
(4) See Me. Stat. Title 1 § 402 (LexisNexis 2021).
(5) See Me. Stat. Title 30-A, § 503 (LexisNexis 2021).
(7) Kallie Cox and William Freivogel, Analysis of Police Misconduct Record Laws in All 50 States, ASSOCIATED PRESS (May 12, 2021).
(8) Matt Byrne, Press Herald Sues Maine State Police Over Concealed Discipline Records, PORTLAND PRESS HERALD (Feb. 23, 2021).
(9) Bangor Publishing Company v. State of Maine, No. CV-2021-00042 (Me. Super. Ct., Pen. Cnty. May 26, 2022).
(13) Id.; While the dispute in this case centered on 5 M.R.S. § 7070(2)(E), it should be noted that there are several separate statutes on personnel records for state employees. Title 30-A § 2702 addresses records for municipal employees; Title 30-A § 503 for county employees; and Title 20-A § 6101 for school employees.
(16) Id. See also Guy Gannett Pub. Co. v. Univ. of Maine, 555 A.2d 470 (1989) (establishing that settlement agreements between public bodies and employees are generally public).
(17) See Me. Stat. Title 30-A, § 503 (LexisNexis 2021).