MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 56 Docket: Ken-22-420 Argued: June 8, 2023 Decided: August 22, 2023
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
HUMAN RIGHTS DEFENSE CENTER
v.
MAINE COUNTY COMMISSIONERS ASSOCIATION SELF-FUNDED RISK MANAGEMENT POOL
HORTON, J.
[¶1] The Maine County Commissioners Association Self-Funded Risk
Management Pool (Risk Pool) appeals from a judgment of the Superior Court
(Kennebec County, Billings, J.) awarding attorney fees to the Human Rights
Defense Center (HRDC), based on the court’s ruling after an evidentiary hearing
that the Risk Pool had refused in bad faith to comply with HRDC’s request for
records pursuant to the Maine Freedom of Access Act (FOAA), 1 M.R.S.
§§ 400-414 (2023).
[¶2] This case presents the first occasion for us to consider what 2
constitutes “bad faith” for purposes of FOAA’s fee-shifting provision.1 1 M.R.S.
§ 409(4). Because the Risk Pool never denied or explicitly refused to comply
with HRDC’s request, we must consider the circumstances under which a public
entity’s failure to comply with a FOAA request rises to the level of a bad-faith
refusal to comply. See id. Here, the Risk Pool’s failure to produce any of its
records in response to HRDC’s FOAA request, despite HRDC’s repeated efforts
to clarify what should already have been clear, can only be viewed as, in the
court’s words, “deceptive and abusive of the FOAA process.” We agree with the
court that the Risk Pool’s response constituted a bad-faith refusal and we affirm
the judgment.
I. BACKGROUND
A. Factual Background
[¶3] “The following facts are drawn from the court’s findings, which are
supported by the record . . . .” Dubois v. Dep’t of Agric., Conservation and Forestry,
2018 ME 68, ¶ 2, 185 A.3d 743.
[¶4] HRDC is a non-profit organization that collects information from law
enforcement and corrections agencies and other public entities in furtherance
1 Based on the novel-for-us issue presented, we granted a motion by the Maine Association of
Criminal Defense Lawyers, Maine Freedom of Information Coalition, Maine Press Association, New England First Amendment Coalition, and Public Justice, for leave to file a joint amicus brief. Their joint brief supports an affirmance of the judgment. 3
of its mission to advocate for change in the criminal justice system. The Risk
Pool is an unincorporated, public, self-funded pool that provides risk
management services to Maine counties under a contract with the Maine
County Commissioners Association. See 30-A M.R.S. §§ 2251-2256 (2023)
(authorizing public, self-funded pools). Malcolm Ulmer, the Risk Pool’s director
of operations, maintains a claim file on each claim handled by the Risk Pool.
[¶5] At some point before June 18, 2021, HRDC became aware, through
a Portland Press Herald article, of the settlement of a federal lawsuit against
Kennebec County alleging maltreatment of a prisoner at the Kennebec County
Jail. The article indicated that the action was settled by the County’s payment
of $30,000 to the plaintiff. HRDC submitted a FOAA request to Kennebec
County for documents showing payments related to the action and settlement.
The County’s attorney responded by sending HRDC copies of pleadings filed in
the matter and a copy of a settlement agreement. However, the settlement
agreement indicated only that the settlement was in consideration of “One
Dollar and Other Good and Valuable Consideration” and did not mention the
$30,000 payment cited in the article.
[¶6] On June 18, 2021, HRDC submitted via email to the Risk Pool what
it designated as a FOAA request for “any documents showing payments 4
disbursed to Jonathan Afanador and/or attorney John Wall[] by
Kennebec County, Nathan Willhoite, and/or the Maine County Commissioners
Association Self-Funded Risk Management Pool from January 1, 2021 to
present. This includes but is not limited to payment documentation related to
the following case: Afanador v. Kennebec County Case No: 1:20-cv-00235-JDL.”
[¶7] Ulmer, on behalf of the Risk Pool, responded via email the same day,
stating that he understood that the County’s attorney had already provided a
copy of the settlement agreement to HRDC and noting that the settlement
amount was $30,000. HRDC replied promptly to point out that the settlement
agreement did not indicate the dollar amount of the settlement and asked, “[d]o
you have any documentation that shows the $30,000 amount?” The Risk Pool
responded with a message saying only, “See attached,” attaching the Portland
Press Herald article stating that the case settled for $30,000, and not any Risk
Pool document from his claim file. On June 21, 2021, HRDC sent another
follow-up email asking for “a copy of the actual agreement that shows $30,000.”
On the same day, the Risk Pool replied that the release that HRDC received from
the attorney for Kennebec County was the “actual agreement” and that “I have
already advised you that the settlement amount is $30,000.” 5
[¶8] On July 2, 2021, counsel for the American Civil Liberties Union of
Maine (ACLU of Maine) sent a letter via email to the Risk Pool and the attorney
for Kennebec County indicating that the ACLU of Maine was representing HRDC
in connection with its FOAA request and stating that “Kennebec County’s FOAA
response thus far is not in compliance with the FOAA.” The letter pointed out
that the settlement agreement produced by Kennebec County’s attorney did not
contain the dollar amount paid in settlement and that “[n]o documents were
produced that show that $30,000 was paid to Mr. Afanador, nor were any
documents produced showing payment to any attorneys involved in the case.”
The letter pointed out that “documents that are potentially responsive to the
FOAA request include accounting records, a copy of a cover letter that was sent
with payment, emails between individuals in county government and officials
in the sheriff’s office, or memoranda suggesting that officers not engage in
whatever conduct led to the filing of the litigation in the first place.” The letter
concluded by noting that HRDC would treat a failure to provide all responsive
documents as a final denial or refusal pursuant to 1 M.R.S. § 409(1). The Risk
Pool responded by stating that “it is [its] understanding that the signed release
provided to [HRDC] by [Kennebec County] is the only settlement release 6
document.” The Risk Pool’s reply did not indicate whether the Risk Pool
possessed what HRDC had requested—“payment documentation.”
B. Procedural History
[¶9] Pursuant to FOAA’s appeal procedure, HRDC filed a complaint in the
Superior Court on July 27, 2021, against Kennebec County and the Maine
County Commissioners Association. See 1 M.R.S. § 409(1). Kennebec County
responded on September 7, 2021, by asserting that it had provided HRDC with
all responsive documents in its possession. See id. (“The agency or official shall
file a statement of position explaining the basis for denial . . . .”). The Maine
County Commissioners Association filed its statement of position on
September 27, 2021, asserting that HRDC should have named the Risk Pool as
a party instead of the Maine County Commissioners Association. See 1 M.R.S.
§ 409(1). HRDC filed a motion to amend its complaint on October 4, 2021, to
add the Risk Pool as a party. HRDC’s motion explained that it did not initially
name the Risk Pool as a party because it believed that the Risk Pool was part of
the Maine County Commissioners Association. On October 25, 2021, the court
granted HRDC’s motion to amend. The order did not address Kennebec
County’s or the Maine County Commissioners Association’s statements of
positions. On November 15, 2021, the Risk Pool filed an answer and affirmative 7
defenses to HRDC’s amended complaint, asserting that HRDC’s appeal was
untimely, that all responsive documents were produced, and that any
documents withheld are privileged. On January 24, 2022, HRDC moved to
dismiss its appeal as to Kennebec County and the Maine County Commissioners
Association. The court granted the motion on February 1, 2022, leaving the
Risk Pool as the only defendant. See M.R. Civ. P. 41(a)(2).
[¶10] On March 1, 2022, the Risk Pool filed a motion to dismiss pursuant
to M.R. Civ. P. 12(b)(6), asserting that HRDC had failed to meet the FOAA
requirement that an appeal be filed within thirty calendar days of the agency’s
“refusal, denial, or failure” to comply with a FOAA request. 1 M.R.S. § 409(1).
HRDC’s memorandum in response to the Risk Pool’s motion contended that its
joinder of the Risk Pool related back to its timely initial complaint because
HRDC would have named the Risk Pool initially but for a mistake, and the
mistake caused no prejudice because the Risk Pool was aware of the action
from its outset. See M.R. Civ. P. 15(c)(3) (relation back of the joinder of a party).
HRDC included an affidavit of counsel explaining why HRDC had not initially
joined the Risk Pool in its appeal. The court denied the motion to dismiss,
agreeing with HRDC that “there was good reason for [HRDC’s] confusion” about 8
whether the Risk Pool was a distinct legal entity, and ruled that HRDC’s joinder
of the Risk Pool in its amended complaint related back to its initial complaint.
[¶11] The court held a bench trial on September 29, 2022. The court
heard testimony from the executive director of HRDC and Ulmer. During the
trial, the Risk Pool acknowledged that it did in fact have “payment
documentation” (the same term used in HRDC’s FOAA request) for the
settlement and had still not provided it to HRDC. When pressed on why
documents showing the amount of payment had still not been provided, the
Risk Pool claimed that HRDC had not requested them.
[¶12] After the hearing, HRDC and the Risk Pool filed written closing
arguments. By its decision, dated December 1, 2022, the court noted that Ulmer
had testified “that he was in possession of a claim file and financial records that
contained documentation that showed the Risk Pool had paid $30,000 to settle
[the] claim, but did not release those documents because he did not believe that
HRDC had specifically requested them.” The court found that the Risk Pool “is
in possession of responsive documents and wrongfully refused to release them”
and ordered that the Risk Pool disclose all responsive documents “showing that
it paid $30,000 to settle the case.” The court granted HRDC’s request for
attorney fees based on what it found was the Risk Pool’s bad-faith response to 9
HRDC’s request, because “the Risk Pool’s behavior was so deceptive and
abusive of the FOAA process.” See 1 M.R.S. § 409(4). The court found that
[a]t every stage of the FOAA process, the Risk Pool and Mr. Ulmer adopted bizarre interpretations of HRDC’s request to avoid disclosure, despite knowing from the beginning that they were in possession of responsive documents. This type of obfuscation and prevarication undermines the basic purpose of the FOAA, which is to enable the public to be informed about what their government is up to.
[¶13] The Risk Pool filed a motion to alter or amend the final judgment
on December 15, 2022. M.R. Civ. P. 52(b). On February 6, 2023, the court
denied the Risk Pool’s motion for amended findings of fact without comment.
The Risk Pool timely appealed from the final judgment. M.R. App. P. 2B(c)(1);
14 M.R.S. § 1851 (2023).
II. DISCUSSION
[¶14] “[W]e review the trial court’s factual findings for clear error and
its interpretation of FOAA de novo.” Fairfield v. Me. State Police, 2023 ME 12,
¶ 9, 288 A.3d 1220. The Risk Pool raises two arguments on appeal. It contends
that HRDC’s appeal was untimely and that the court erred in awarding attorney
fees to HRDC. 10
A. Timeliness of HRDC’s Appeal
[¶15] Under FOAA “[a]ny person aggrieved by a refusal or denial to inspect
or copy a record or the failure to allow the inspection or copying of a record . . . may
appeal . . . within 30 calendar days of the receipt of the written notice of refusal, denial,
or failure . . . .” 1 M.R.S. § 409(1). The thirty-day period runs from the date on
which the requesting party learns of an agency’s violation of FOAA in the form
of a wrongful refusal, denial, or failure to comply with FOAA. See Palmer v.
Portland Sch. Comm., 652 A.2d 86, 89 (Me. 1995) (“A Freedom of Access claim
must be filed within thirty days of discovering a possible violation.”).
[¶16] The Risk Pool asserts that HRDC’s appeal was untimely for two
alternate reasons. First, the Risk Pool argues that the thirty-day period began
to run on June 21, 2021, because “the undisputed evidence is that [Ulmer] had
responded to the request as much as he was going to by June 21, 2021,” and
HRDC’s filing of its original complaint on July 27, 2021, was therefore untimely.
Second, the Risk Pool argues that even if HRDC’s initial complaint were deemed
timely, it failed to name the Risk Pool as a defendant, and the court erred in
deciding that the addition of the Risk Pool as a defendant in HRDC’s amended
complaint related back to the filing of the initial complaint. See M.R. Civ. P. 15.
We disagree on both points. 11
[¶17] The Risk Pool’s contention that its June 21, 2021, response to
HRDC’s request triggered the appeal period because HRDC should have taken
it as the Risk Pool’s final response is unfounded. HRDC’s initial June 18, 2021,
request was for “any documents showing payments” made to settle the case,
and its clarification sought “documentation that shows the $30,000 amount.”
The Risk Pool’s June 21, 2021, reply did not indicate whether the Risk Pool
possessed such documents. HRDC was fully justified in attempting to ensure,
through its counsel’s July 2, 2021, follow-up letter, that the Risk Pool
understood what HRDC was requesting.
[¶18] Moreover, as a matter of FOAA procedure, when an agency plainly
is not interpreting a request to mean what the requester intends, further efforts
to clarify both the scope of the request and the completeness of the response
are to be encouraged before judicial remedies are invoked. To accept the Risk
Pool’s argument would likely spawn avoidable litigation by causing requesters
to file appeals prematurely when further dialogue might resolve
disagreements. Here, HRDC’s counsel’s July 2 letter pointing out that
“Kennebec County’s FOAA response thus far is not in compliance with the
FOAA” shows that HRDC did not interpret Ulmer’s June 21, 2021, message as a
final response. (Emphasis added.) The Risk Pool’s July 6, 2021, response to 12
that letter stated that there were no other documents responsive to HRDC’s
request. It was that response that triggered the appeal deadline, and HRDC’s
complaint, filed on July 27, 2021, was therefore timely.
[¶19] The Risk Pool’s contention that HRDC’s amended complaint adding
the Risk Pool as a party should not relate back to the initial complaint is equally
unpersuasive. Maine Rule of Civil Procedure 15(a) allows for changes of parties
or the naming of parties. “An amended pleading relates back to the date of the
original pleading where the claim asserted in the amended pleading ‘arose out
of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading.’” Frame v. Millinocket Reg’l Hosp., 2013 ME 104, ¶ 13,
82 A.3d 137 (quoting M.R. Civ. P. 15(c)(2)). The “relation back” provision of
Rule 15(c)(3) further provides:
An amendment of a pleading relates back to the date of the original pleading when . . . (3) the amendment changes the party or the naming of the party against whom a claim is asserted if . . . the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
[¶20] The Risk Pool does not deny that it was aware of the action almost
as soon as it was brought and does not contend that the delay in its joinder
resulted in any prejudice. Instead, the Risk Pool argues that HRDC’s failure to 13
name the Risk Pool was not a mistake and that HRDC unduly delayed moving
to amend its complaint to add the Risk Pool as a defendant. However, the Risk
Pool does not contend that HRDC knew, as of when it filed its initial complaint,
that the Risk Pool was separate from Kennebec County and the Maine County
Commissioners Association, and it does not proffer any reason other than a
mistake for HRDC’s initial failure to include the Risk Pool as a defendant. As to
delay, we have indicated that a party seeking leave to amend must act without
unreasonable delay once the party becomes aware of grounds for a motion to
amend. See John W. Goodwin, Inc. v. Fox, 642 A.2d 1339, 1341 (Me. 1994). Here,
HRDC filed its motion to add the Risk Pool as a defendant a week after the Maine
County Commissioners Association filed its answer identifying the Risk Pool as
a separate entity. The court did not err in concluding that the joinder related
back to HRDC’s timely initial filing.
B. The Award of Attorney Fees Based on a Finding of Bad Faith
[¶21] On appeal, the Risk Pool argues that the court erred in awarding
HRDC attorney fees based on the court’s finding that the Risk Pool acted in bad
faith in responding to HRDC’s FOAA request.2 See 1 M.R.S. § 409(4) (stating that
2 To be awarded attorney fees under FOAA, HRDC must have also been a “substantially prevailing
plaintiff.” 1 M.R.S. § 409(4) (2023). The Risk Pool has not appealed the court’s finding that it violated FOAA or the order requiring the Risk Pool to disclose all the responsive documents in its possession. 14
in an appeal from an agency’s refusal of a records request or failure to allow
inspection or copying of a record, “the court may award reasonable attorney’s
fees and litigation expenses to the substantially prevailing plaintiff . . . if the
court determines that the refusal . . . was committed in bad faith”). We review
de novo the court’s interpretation of the statute, and “we review the court’s
factual findings for clear error.” Blue Sky W., LLC v. Me. Revenue Servs., 2019
ME 137, ¶ 24, 215 A.3d 812. “We review a court’s award of attorney fees for an
abuse of discretion, mindful that the trial court is in the best position to observe
the unique nature and tenor of the litigation as it relates to a request for
attorney fees.” Wilmington Tr., N.A. v. Berry, 2020 ME 95, ¶ 21, 237 A.3d 167
(quotation marks omitted).
[¶22] In interpreting a statute, this Court “look[s] to the plain meaning
of the statute, interpreting its language to avoid absurd, illogical, or inconsistent
results and attempting to give all of its words meaning.” Jackson Lumber &
Millwork Co. v. Rockwell Homes, LLC, 2022 ME 4, ¶ 10, 266 A.3d 288. The plain
meaning of the language may be determined by its dictionary definition. Id.
See Citizens for a Strong N.H., Inc. v. Internal Revenue Serv., No. 14-cv-487-LM, 2016 U.S. Dist. LEXIS 128118, at *8-10, 2016 WL 5108035, at *3 (D.N.H. Sept. 20, 2016). We conclude that HRDC is a substantially prevailing plaintiff, because HRDC demonstrated that the litigation was “necessary and had a causative effect on the disclosure of the requested information.” Maynard v. Cent. Intel. Agency, 986 F.2d 547, 568 (1st Cir. 1993) (quotation marks omitted). Without court intervention, HRDC would not have been able to obtain access to the documents it requested. See id. at 568-69. 15
¶ 13. If a statute is ambiguous, this Court may look to legislative intent and
legislative history. Id. ¶ 10.
[¶23] We have not previously construed the FOAA attorney fee
provision. Our starting point is in the purposes and framework of the statute.
In enacting FOAA, the Legislature mandated that the statute “shall be liberally
construed and applied to promote its underlying purposes.” 1 M.R.S. § 401.
“FOAA’s central purpose [is to ensure] the public’s right to hold the government
accountable.” Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, ¶ 32, 871 A.2d
523. In furtherance of that purpose, FOAA “establishes a general right of the
public to inspect and copy public records.” Doyle v. Town of Falmouth, 2014
ME 151, ¶ 8, 106 A.3d 1145; see 1 M.R.S. § 408-A. When an agency denies or
refuses a request or fails to allow access to a requested record, an aggrieved
party may “appeal” to the Superior Court. 1 M.R.S. § 409(1). Because a FOAA
“appeal” can include the taking of evidence, “although the process is described
statutorily as an appeal, the trial court actually conducts a trial de novo and
does not act in an appellate capacity.” Blue Sky W., LLC, 2019 ME 137, ¶ 24,
215 A.3d 812 (quotation marks omitted). “On such a challenge, the burden of
proof to demonstrate just and proper cause is on the agency that denied
inspection of the records.” Id. “If a court, after a review, with taking of 16
testimony and other evidence as determined necessary, determines such
refusal, denial, or failure was not for just and proper cause, the court shall enter
an order for disclosure.” 1 M.R.S. § 409(1).
[¶24] The Legislature did not include a definition of “bad faith” in the
FOAA statute,3 and we have not been previously called on to define the term for
purposes of FOAA. A legal dictionary defines the term as “[d]ishonesty of belief,
purpose, or motive.” Bad faith, Black’s Law Dictionary (11th ed. 2019). Our
jurisprudence on attorney fee awards provides guidance on what can
constitute bad faith. In general, “attorney fees may not be awarded as a
sanction in the absence of significant bad faith on the part of a litigant or his
agents,” Linscott v. Foy, 1998 ME 206, ¶ 17, 716 A.2d 1017. In Linscott, we
upheld a fee award, noting that a litigant’s “obstinate refusal to comply with a
valid order” of court was “undertaken in bad faith” and was “abusive of the
court and other parties.” Id. ¶ 18. In Cimenian v. Lumb, we upheld a fee award,
3Likewise, the legislation that preceded the statute did not provide any definition for bad faith but noted that the Superior Court had discretion to award attorney fees. J. Standing Comm. on Judiciary, Legis. Doc. 679, 124th Leg., 1st Sess., at 21 (Me. 2009). Although we look to the federal Freedom of Information Act (FOIA) for guidance in interpreting the Maine FOAA, Campbell v. Town of Machias, 661 A.2d 1133, 1136 (Me. 1995), the term “bad faith” does not appear in the federal statute. FOIA permits courts to award attorney fees against the Government if the requesting party “has substantially prevailed.” 5 U.S.C.A. § 552(a)(4)(E)(i) (2023) (Westlaw through Pub. L. No. 118-10) (“The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.”). 17
observing that “bringing an action without ‘even the slightest merit,’ [and]
testifying untruthfully about matters relevant to the issues being litigated is bad
faith.” 2008 ME 107, ¶ 13, 951 A.2d 817; cf. Aubuchon v. Blaisdell, 2023 ME 5,
¶¶ 16-20, 288 A.3d 805 (awarding attorney fees as a sanction for a “frivolous
and contumacious appeal”). These decisions convey that bad faith in litigation
can consist of dishonest conduct, but it can also include intentional acts or
omissions that thwart the legal process and cause harm to other parties to the
action.
[¶25] A similar analysis applies to identifying bad faith in the context of
FOAA. The legislative mandate for the FOAA to be “liberally construed and
applied to promote its underlying purposes,” 1 M.R.S. § 401, applies as
forcefully to responding agencies as it does to courts. An agency’s duty to apply
FOAA in a manner that promotes the Act’s purposes calls for the agency to
respond to a FOAA request with the purpose of facilitating the requester’s
timely access to the requested records unless the agency has a good-faith basis
for withholding or delaying access. An agency’s failure to respond does not in
itself establish bad faith. See Campbell v. Town of Machias, 661 A.2d 1133, 1135
(Me. 1995) (“[T]he failure to respond to a Maine Freedom of Access request
within the time frame set forth in the statute does not constitute a waiver of the 18
right to withhold the documents at issue. Such a failure to respond is deemed
a denial of the request for the documents.”). On the other hand, proof that an
agency has acted in the opposite manner to facilitating access to its public
records—by responding to a request dishonestly, for example, or by
deliberately and affirmatively impeding or thwarting valid requests for
access—may be sufficient to prove bad faith.
[¶26] Here, HRDC’s June 18, 2021, FOAA request was quite specific:
[A]ny documents showing payments disbursed to Jonathan Afanador and/or attorney John Wall[] by Kennebec County, Nathan Willhoite, and/or the Maine County Commissioners Association Self-Funded Risk Management Pool from January 1, 2021 to present. This includes but is not limited to payment documentation related to the following case: Afanador v. Kennebec County Case No: 1:20-cv-00235-JDL.
[¶27] At the hearing, the following exchange occurred between Ulmer on
behalf of the Risk Pool and HRDC’s counsel:
Q : You have a claim file for the Afanador matter? A: That’s correct. Q: And the claim file has material related to the settlement of the Afanador matter? A: Yes. Q: Including the amount that was paid to Mr. Afanador? A: Yes. Q: And you didn’t turn over any of those documents in that claim file, did you? A: Those documents were not requested in the context of this case. 19
[¶28] In a previous series of questions, Ulmer was asked whether the
Risk Pool had ever provided HRDC with copies of cancelled checks, payment
receipts, ledgers, or “any documents showing how much money was paid to
Mr. Afanador,” and he answered each question by saying that such documents
had never been requested. When HRDC asked, “You have documents like that
in your possession, though, don’t you?” Ulmer answered, “I have documents
that would reflect the payment.”
[¶29] The Risk Pool appears to proffer two reasons for failing to provide
the documents in its possession reflecting payment of the settlement, neither
of which withstands even cursory examination. First, the Risk Pool claims that
it thought HRDC wanted a settlement agreement that showed the dollar amount
of the settlement and that it did not produce anything because there is no such
document. HRDC’s FOAA request, however, was not for a settlement
agreement; it sought “any documents showing payments.” When the Risk Pool
initially responded by mentioning the settlement agreement that HRDC had
already obtained, HRDC reiterated its original request by asking, “Do you have
any documentation that shows the $30,000 amount?” The Risk Pool ignored
this reiteration of HRDC’s already clear request and then ignored a subsequent
reiteration in the ACLU of Maine’s July 2, 2021, letter, which asked for 20
documents reflecting the settlement amount, such as “accounting records, a
copy of a cover letter that was sent with payment, emails between individuals
in county government and officials in the sheriff’s office, or memoranda
suggesting that officers not engage in whatever conduct led to the filing of the
litigation in the first place.” Instead of providing the “documents that would
reflect the payment” that Ulmer testified were in his claim file, the Risk Pool’s
July 6, 2021, response to HRDC’s letter mischaracterized HRDC’s FOAA request
as being for a release or agreement: “[I]t is my understanding that the signed
release provided to [HRDC] by [Kennebec County] is the only settlement
release document and I also advised [HRDC] of the settlement amount.”
[¶30] The Risk Pool’s second explanation for producing nothing in
response to HRDC’s request appears to be that HRDC did not request the
payment documents in Ulmer’s claim file in terms specific enough to suit the
Risk Pool. Ulmer testified that his claim file included documents reflecting
payment, yet he testified that cancelled checks, payment receipts, and
“documents showing how much money was paid to Mr. Afanador” were never
requested. HRDC obviously had no way to know whether the settlement
amount was paid by check, wire transfer, credit or debit card, an online
payment platform, or some other method of payment. HRDC’s request for “any 21
documents showing payments disbursed to Jonathan Afanador” and “any
documentation” clearly covered documents in the various categories that the
Risk Pool claims were not requested.
[¶31] Instead of facilitating HRDC’s access to the responsive material in
the Risk Pool’s possession, the Risk Pool did the very opposite, while
pretending to facilitate: it mischaracterized HRDC’s FOAA request as being
different and narrower than it was, ignored HRDC’s efforts to correct the
mischaracterization, and deliberately withheld access to documents in its
possession that clearly were responsive to the request and should have been
disclosed. As we learned at oral argument, although the court ordered the Risk
Pool to provide HRDC with the responsive documents, it still has not done so
because it continues to maintain that they were not requested. We agree with
the court that “the Risk Pool’s behavior was so deceptive and abusive of the
FOAA process” that an award of attorney fees based on bad faith is warranted.
The entry is:
Judgment affirmed. 22
Jeffrey T. Edwards, Esq. (orally), Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Maine County Commissioners Association Self-Funded Risk Management Pool
Carol J. Garvan, Esq. (orally), Zachary L. Heiden, Esq., and Anahita D. Sotoohi, Esq., American Civil Liberties Union of Maine Foundation, Portland; and Loree Stark, Esq., Human Rights Defense Center, Boynton Beach, Florida, for appellee Human Rights Defense Center
Shelby Leighton, Esq., and Jaqueline Aranda Osorno, Esq., Public Justice, Washington, D.C., for amici curiae Maine Association of Criminal Defense Lawyers, Maine Freedom of Information Coalition, Maine Press Association, New England First Amendment Coalition, and Public Justice
Kennebec County Superior Court docket number CV-2021-131 FOR CLERK REFERENCE ONLY