Doyle v. Town of Scarborough

• Court: Superior Court of Maine
• Decided: July 15, 2016
• Docket: CUMcv-14-149
• Status: Unpublished

Opinion

Cun · ' . ~4 I c O ·Orcr,'c;nc-s F MA.tN~ STATE OF MAINE s, Cterf.r• CIVIL ACTION CUMBERLAND, ss. JUL 1 s Offiee DOCKET NO: CV-14-149 _/ 5 20!6 MICHAEL DOYLE R£c£1v£0 v. ORDER AFTER IN CAMERA REVIEW

TOWN OF SCARBOROUGH

Plaintiff Michael Doyle submitted a FOIA request for all emails between Robert

Moulton and three women, Lori Bedor, Cathy Chandler and Linda Fowler. The Town

produced some documents and did not provide other documents on the grounds that these

email communications fell within an exception to the definition of public records as set

forth in 1 M.R.S. §402. At the court' s request, the Town produced the disputed

documents for in camera review and set forth the basis for protection of each set of

documents. The court has completed her FOIA review.

The Freedom of Access Act (FOAA), 1 M.R.S. §400, requires that public actions

and records be made available to the public. 1 M.R.S. §401. "Public records" is defined

in 1 M.R.S. §402(3). The FOAA is to be liberally construed. Dow v. Caribou Chamber

ofCommerce and Indus., 2005 ME 113, ~9, 884 A. 2d 667. The burden of proof falls on

the agency to establish 'Just and proper cause" for the denial of a Freedom of Access Act

request. See 1 M.R.S §409(1)(2015)(stating that, on appeal to the Superior Court, the

court must enter an order for disclosure if it determines "denial was not for just and

proper cause").

Section 402(3) defines "public records" to include:

[A Jny written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisions, ... and has been received or prepared for use in connection with the transaction ofpublic or governmental business or contains information relating to the transaction ofpublic or governmental business, except: A. Records that have been designated confidential by statute; B. Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding; N. Social security numbers; [and] 0. Personal contact information concerning public employees, except when that information is public pursuant to other law.

1 M.R.S.A. §402(3)(Emphasis supplied).

The Town argues that most of the documents that are marked for in camera

review are not pubic records under 1 M.R.S §402(3), §402(3)(B), 402(3)(N) & (0), 30-A

M.R.S. §2702(1)(B)(l) and (4), and 30-A M.R.S. §2702(l)(A) .

The court hereby finds that the Town established just and proper cause for the

denial of a FOIA request and orders that the following documents are protected from the

FOIA request as follows:

1. Documents marked in camera pages 1-280, 293-304, 306-389, 392-620,

623-819, 821-858, 861-866, 869-873, 875-877, 882-883, 886, 889-896,902-906,908­

920, 931-964, 969-970, 974-977, 980-986, 989, 1005-1049, 1052-1112, 1125-1169,

1172-1185 and 1188-1193 . Pursuant to 1 M.R.S. §402(3), the court concludes the

foregoing documents are not public records because they were not received or prepared

for use in connection with transaction of public or governmental business and do not

contain information relating to the transaction of public or governmental business.

2. Documents marked in camera pages 283, 284-285, 305, 965-968, 898­

901, 907, 921-923, 926-927. Pursuant to 1 M.R.S. §402(3)(B), the court finds that the

foregoing documents are not public records because they are protected from public disclosure because they would not be subject to discovery in a civil proceeding because

they are irrelevant to the information sought by plaintiff and would reveal confidential

information and in some cases highly personal information regarding a non-party.

3. Documents marked in camera pages 390-391, 621-622, 867-868, 874,

897, 1170-1171. Pursuant to 30-A M.R.S. §2702(1)(B)(1)(4), the court finds that these

documents are protected from public disclosure because they involve information

pertaining to an identifiable employee and contain medical information regarding that

employee, or contain information pertaining to the personal history, or general character

or conduct of members of an employee's immediate family.

4. Documents marked in camera 878, 887-888, and 929-930. Pursuant to

30-A M.R.S. §2702(1)(A), the court finds that these records are protected from public

disclosure because they concern information prepared by the municipality or use in the

evaluation of applicants for the positions as municipal employees.

5. Documents marked in camera 286-288, 289-240, 291-292, and 928.

Pursuant to 1 M.R.S. §402(3)(N) & (0), the court finds that these documents are

protected from public disclosure because they reveal personal contact information

concerning public employees or employee social security numbers.

The Town does not assert protection with respect to the following documents;

therefore, the court hereby ORDERS the Town produce to plaintiff documents marked in

camera 281-282, 820, 971-972, 978-979, 988, 990-1003, 1050-1051, 1123-1124, and

1186-1187.

Date: July 15, 2016 )'CAWheeler, ARJ ' Maine Superior Court STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS CIVIL ACTION Docket No. CV-14-149

MICHAEL DOYLE,

Plaintiff

v. DECISION ON FOAA APPEAL

TOWN OF SCARBOROUGH,

Defendant.

This matter came before the court for hearing on December 1, 2015 on

Michael Doyle's (hereinafter "Doyle") Freedom of Access Act Appeal 1 (hereinafter "FOAA appeal") pursuant to 1 M.S.R. § 409. Doyle appeared prose.

Mark Franco, Esquire, represented the Town of Scarborough. Two of the matters

that were before the court and left unresolved are addressed in this decision.

First, the court will consider Doyle's FOAA appeal, asking the court to compel

the Town to disclose certain emails. Second, the court will consider Cross

Motions for Sanctions.

A. FOAA APPEAL

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed his Freedom of Access Act appeal pursuant to 1 M.R.S. § 409

on March 31, 2014. Initially he challenged the fee the Town sought for its

production of FOAA materials. On March 4, 2014, Doyle sought in his FOAA

request in this case to inspect emails between Scarborough Police Chief Robert

1 Doyle filed at least two motions to recuse the undersigned judge. That request was denied for reasons state on the record prior to the hearing on December 1, 2015.

1 Moulton and Lori Bedor, Moulton and Cathy Chandler and Moulton and Linda

Fowler. See page 4 of Def's Ex. 5. That request was sent to the Town Clerk who

sought clarification of the scope of his request to which Doyle responded, "to the

beginning of time." The Town Clerk sent on March 19, 2014 a bill to Doyle with

an estimate of 93 billable hours and seeking for advance payment in the amount

of $3,260, based on an estimate provided by the Director of IT for the retrieval

and copying of the documents. See Def' s Ex. 2. This is the estimate that Doyle

challenged in his FOAA appeal. He asked the court to reduce the estimate and

order the production of the requested documents. In subsequent

correspondence, the request was narrowed and the costs associated with the time

period from 2012 forward were reduced to $570.

The Town's initial estimate included the retrieval of archived emails, as

compared to live emails that are currently in the email box and easily retrievable.

Retrieval of archival emails would require time, money, additional hardware and

software and consequently quite costly. See Def's Ex. 1. There is no hardware to

pull emails prior to 2007. The Town could purchase hardware to pull emails

from 2007-2010. Emails since 2012 exist in a live environment and are readily

available. After the request was narrowed, the Director of IT pulled the live

emails. She pulled each email with the names Moulton, Chandler, Fowler and

Bedor. She then printed only those emails between Moulton and these three

individuals. This task took her a week of her time. Only emails between

Moulton and Chandler existed. There were no emails between Moulton and

Fowler or between Moulton and Bedor. The Town sent a $570 invoice to Doyle

to copy 1,137 pages of emails that the Town was able to recover. See Def's Ex. 4.

Doyle has not yet paid anything to the Town for the copying of the

2 recovered emails. Nevertheless, the Town permitted Doyle access to the 1,137

pages of emails about a week ago. Doyle spent six and one half hours inspecting

the produced emails and did not request that any of these emails be copied.

At the hearing, Doyle learned that the Town Manager and the Town's

attorney in this case reviewed the emails before Doyle's inspection and excluded

more than 100 and less than 1,000 emails based on FOAA exclusions. The Town

offered no evidence regarding the excluded emails except to state that the emails

were excluded under statutory exclusions. The Town did not identify on which

exclusions it was relying. Consequently, Doyle asked that the court order the

Town to produce the withheld documents to the court for its in camera review of

the excluded emails. Thus the first issue in this case is whether the Town has

met its burden to demonstrate the basis for the denial of those emails that the

Town contends come within any of the statutory exceptions.

Although Doyle's appeal began as a claim that the cost of disclosure was

tantamount to a denial, he now also claims first that he suspects that there are

other emails that the Town has not made available to him and second that there

are emails that the Town has not disclosed and that the Town claims are

excluded under statutory exceptions.

The claim of incomplete disclosure is partially meritorious because the 1 Town did not issue a written denial to Doyle s request and Doyle only learned at

the hearing that the Town had screened out those emails that the Town Manager

and Town's attorney believed were excepted under FOAA. Because a denial

under section 409(1) can occur through silence or failure to act, Doyle has

established that a denial by omission has occurred with respect to the withheld

emails.

3 His claim that the Town's disclosure is incomplete because he believes

there are other emails based upon information from undisclosed individuals has

no merit. In the absence of any probative evidence of the existence of these

emails, Doyle has not persuaded the court that a denial pursuant to section 409 of

the FOAA has occurred with regard to these unknown emails.

DISCUSSION

The purpose of the FOAA is to open public proceedings and require

public actions and records are available to the public. Town of Burlington v. Hosp.

Admin. Dist. No. 1, 2001 ME 59, <[13, 769 A. 2d 857. The FOAA "must be liberally

construed and applied to promote its underlying purposes and policies

contained in the declaration of legislative intent." Med. Mut. Ins. Co. v. Bureau of

Ins., 2005 ME 12, <[ 5, 866 A. 2d 117 (quoting 1 M.R.S. § 401 (1989)). In contrast,

exceptions to FOAA are strictly construed. Springfield Terminal Ry. Co. v. Dep't of

Transp., 2000 ME 126, <[ 8, 754 A. 2d 353. "The party seeking the denial of a request to inspect and copy a record pursuant to section 408(1) has the burden to

demonstrate the basis for the denial. Med. Mut. Ins. Co. v. Bureau ofIns., 2005 ME

12, <[ 6, 866 A. 2d 117. The court must determine whether the refusal, denial or

failure was not for just and proper cause. 1 M.R.S. § 409(1).

A public record can include an email. An agency or official must provide

access to electronically stored public records, including e-mails, as a printed

document. Any record, regardless of the form in which it is maintained by an

agency or official, can be a public record. As with any record, if the e-mail is "in

the possession or custody of an agency or public official of this State or any of its

political subdivisions ... and has been received or prepared for use in connection

with the transaction of public or governmental business or contains information

4 relating to the transaction of public or governmental business" and is not deemed

confidential or excepted from the FOAA, it constitutes a "public record". 1 M.R.S.

§ 402(3).

The FOAA specifies a number of exceptions. 1 M.R.S. § 402(3A)-(3T). If

not excluded, the FOAA provides that a person has the right to inspect and copy

public records. 1 M.R.S. § 408-A. In Maine, there are over 300 statutory

exceptions to the Freedom of Access Act's definition of a public record. Many of

these exceptions specifically designate a certain type of record, or a class of

information within a record, as confidential or otherwise not subject to the

Freedom of Access laws. Without any guidance from the Town as to what

exceptions it is invoking, the court cannot determine whether the Town met its

burden of establishing just and proper cause for the denial of a FOAA request

with respect to the withheld emails. See Anastos v. Town of Brunswick, 2011 ME 41,

When an agency denies access to a public record, it must provide the

reason for its denial in writing within 5 working days of the receipt of the request

for inspection or copying. 1 M.R.S. § 408-A(4). The Town never stated it was

denying access to certain records until at the hearing. A denial under section

409(1) can occur through silence or failure to act. The court finds that the Town's

omission is tantamount to a denial. Therefore, the Town bears the burden of

demonstrating the basis for its denial. See Anastos v. Town of Brunswick, 2011 ME

41,

that the Town provide within 21 days of the date of this order all documents that

the Town claims are protected from disclosure as well as a statement of which

exception protects each email to the court for an in camera review. The court

5 recognizes that Doyle has taken up an extraordinary amount of the Town's time

with his frequent FOAA requests. Between March 2, 2014 and November 2014,

Doyle has sent 53 separate FOAA requests, some of which contained more than

one request. See Def' s Ex. 5. However, Doyle's conduct does not excuse the

Town with its obligation to comply with FOAA.

With respect to the $570 in fees charged by the Town to Doyle, the court

finds that it would be reasonable for the Town to charge the cost to pull the

emails and to convert them to a usable format. The $570 cost is based on copying

1,317 pages, which is significantly less than the cost of conversion or compilation.

In this case, that cost would be the equivalent of one week of the Town Oerk's

salary, which is $1,000 per week net. Although the Town ultimately permitted

inspection without requiring Doyle to pay anything, the Town could charge fees

in accordance with 1 M.R.S. § 408-A(S). The FOAA permits an agency to charge a

reasonable fee to cover the cost of copying documents. 1 M.R.S. § 408-A(S)(A).

FOAA also permits the recovery of the actual cost of searching for, retrieving and

compiling the requested documents in accordance with subsection 408-A(S)(B).

Further, the cost of converting a public record into a form susceptible of visual

comprehension or into a usable format may be charged. 1 M.R.S. § 408-A(C). The

agency may not charge for inspection unless the public record cannot be

inspected without being compiled or converted. 1 M.R.S. § 408-A(D ). Because

Doyle refused to pay the cost of compiling or converting the emails, even after

the cost was drastically and reasonably reduced to $570, the court refuses to find

that the Town did not respond to his FOAA request with respect to those emails

that were disclosed.

6 B. CROSS MOTIONS FOR SANCTIONS

The parties have filed motions for sanctions against each other. The

motions do not relate to the FOAA claim but the acts giving rise to the request

occurred within the FOAA action.

Doyle claims that Attorney Franco, the Town's attorney in this matter,

threatened him when Franco stated in a conference following a show cause

hearing, "If you stay away from Southern Maine you won't have to deal with me

any more." Doyle taped and saved this portion of the recording he made of the

conversation but he did not save the entire conversation. He contends he has the

entire conversation but that he has lost the cell phone on which that conversation

was recorded. Defendant contends that without the entire conversation to put

this statement in context, Doyle's motion should be denied. Doyle contends that

counsel lied in his affidavit when he stated his memory of that conversation. The

court will not find that counsel lied when counsel was not afforded a copy of the

tape recording or any portion of that recording that Doyle made. Counsel recalls

that he had a friendly conversation with Doyle during which they covered a

wide range of topics and that he joked that his understanding was that he was

telling Doyle that if he stopped filing lawsuits against municipalities, they would

not have to hire counsel and plaintiff would not have to deal with counsel

anymore. Regardless of what was said, Doyle's motion for contempt is denied for

the following reasons.

Doyle styles his motion as a Rule 66{d){3){c) motion. However, he does

not cite any order that is violated. He does not cite any evidence of contempt.

The court rejects Doyle's analogies set forth in his motion. The court also rejects

his attempt to include other law firms, towns and the Maine Municipal

7 Association in this action for purposes of sanctions.2 Finally the court rejects

Doyle's claim that the statement made arises to the level of criminal threatening,

17-A M.R. § 209, or terrorizing, 17-A M.R.S. § 210. 3 The attorney's statement

does not expressly or implicitly convey a threat to engage in violent conduct or

to cause physical harm.

Defendant filed an opposition and its own motion for sanctions.

Defendant seeks the cost of defending against Doyle's motion on the grounds it

violates M.R.Civ.P. ll(a) and was filed to intimidate and harass counsel and to

quell municipalities from exercising their rights to demand payment prior to

responding to FOAA requests and to retain counsel to assist in the response to

the requests when challenged. In short, Defendant asserts that Doyle's motion

was not instituted in good faith and constitutes harassment and abuse of process.

The court concludes that Doyle's motion is frivolous, completely without

merit and a complete waste of judicial resources. 4 Although he appears pro se,

the Law Court has made clear that pro se litigants are held to the same standard

as lawyers. Plaintiff's motion for sanctions is summarily dismissed and the court

orders Doyle to pay Attorney Franco $292.50 (the attorney fees incurred

2 Doyle requests that the court assess these entities significant penalties and enter an order that these entities be barred from defending any other FOAA case brought by plaintiff and from representing any plaintiff or defendant in any case in which Michael Doyle is a

f~;le made this same allegation to the Board of Overseers of the Bar, which was promptly denied. Doyle filed at the hearing yesterday a similar motion, captioned a motion for the court to rescinding previous unfounded accusation against plaintiff. This motion refers to findings the court made in its Show Cause Order, dated February 27, 2015, including findings that Doyle's financial affidavit was false and his testimony suspect. The court has read the transcript from that hearing which fully supports these findings. That motion is summarily dismissed.

8 defending against Doyle's motion) as a sanction for filing his frivolous motions.

The entry is:

The Town is ORDERED to submit under seal the emails that it contends are protected by statutory exceptions for an in camera review by the court and set forth the statutory basis for each exclusion. The documents produced by the Town shall be impounded until further order of the court.

Plaintiff's motion for sanctions is DISMISSED.

Defendant's motion for sanctions is GRANTED and plaintiff shall pay within 21 days $292.50 to Marco Franco, Esquire.

Dated: December 4, 2015 /J:iiA.Wheele¥~ "' Justice, Superior Court

STATE OF MAINE Cumberland, ss, Clerk's Office DEC 04 2015 RECEIVED