News Center Maine v. Hamilton

• Court: Superior Court of Maine
• Decided: May 3, 2018
• Docket: KENcv-17-39
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NOs. CV-17-39 and CV-17-40 Consolidated NEWS CENTER Maine, a Maine ) Corporation with a place of business ) in Portland, County of Cumberland, ) State of Maine, ) ) Plaintiff ) ) DECISION AND ORDER v. ) ) RICKER HAMILTON, in his capacity ) as the Commissioner of the Maine ) State Department of Health and Human ) Services, with an office in Augusta, ) County of Kennebec, State of Maine, ) ) Defendant. )

BACKGROUND

Marissa Kennedy Case

On March 6, 2018, Plaintiff, NEWS CENTER Maine, submitted a request

under the Maine Freedom of Access Act ("the FOAA"), 1 M.R.S. §§ 401 et seq., to

Defendant, Commissioner of the Maine Department of Health and Human Services

("the Commissioner"). Plaintiff requested records related to Marissa Kennedy (age

10), who passed away on February 25, 2018, seeking (1) any case files at the

Department of Health and Human Services ("the Department") including the names

Marissa Kennedy, Sharon Carrillo, or Julio Carrillo and (2) any correspondence The Department responded later the same day, denying the request because

the requested records are confidential and disclosure of them at that time could

jeopardize criminal proceedings, citing 22 M.R.S. §§ 4008 and 4008-A.

Petitioner appealed this decision to the Court on March 19, 2018.

Shawna Gatto is the fiancee of Stephen Hood, the grandfather of Kendall

Chick. At the time of her death, Kendall Chick was living with Mr. Hood and Ms.

Gatto. Criminal proceedings are currently pending against Shawna Gatto in the

Lincoln County Unified Criminal Docket at Docket Number LINCD-CR-2017-887.

Consolidated Cases

By agreement of the parties, the Court ordered these two cases consolidated

pursuant to M.R. Civ. P. 42(a). The Department drafted two press releases

containing information regarding its involvement with Marissa Kennedy and

Kendall Chick ("the draft press releases"). The Office of the Attorney General has

advised the Department that it is concerned that public disclosure of information

through the draft press releases could jeopardize the three pending criminal

investigations and proceedings. Acting upon that advice, the Commissioner decided

not to issue the draft press releases.

As set forth in Plaintiff's Second Amended Complaint, the allegations are as

follows: Count I is a FOAA appeal for records requested regarding Marissa

Kennedy; Count II is a FOAA appeal for records requested regarding Kendall Chick;

3 Count III requests the Court to order disclosure under 22 M.R.S. § 4008-A(l-A);

and Count IV is an appeal pursuant to M.R. Civ. P. SOC of the Commissioner's

decision not to disclose the information in the draft press releases.

DISCUSSION

Counts I & II: Disclosure ofRecords Under 22 M.R.S. § 4008

The court will uphold a refusal or denial to inspect or copy a record under the

FOAA if the refusal or denial was for just and proper cause. 1 M.R.S. § 409(1). A

determination of whether disclosure of documents under FOAA is required turns on

the nature of the documents in question. Blethen Me. Newspapers, Inc. v. State, 2005

ME 56, 871 A.2d 523, ff 13, 28 (citing federal Freedom of Information Act

principles and stating that FOIA informs analysis of Maine's FOAA). Therefore,

the purpose for which records are sought under the FOAA is irrelevant. Id.

Under the FOAA, the general public has a right to copy and inspect any public

record. 1 M.R.S. § 408-A. A "public record" is defined to specifically exclude

records that have been designated confidential by statute. 1 M.R.S. § 402(3)(A).

Title 22 M.R.S. § 4008(1) provides:

All department records that contain personally identifying information and are created or obtained in connection with the department's child protective activities and activities related to a child while in the care or custody of the department, and all information contained within these records, are confidential and subject to release only under the conditions of subsections 2 and 3.

4 Subsection 2 allows for perrmss1ve disclosure of information to specifically

designated agencies and persons. 22 M.R.S. § 4008(2)(A)-(M). Subsection 3

provides for mandatory disclosure of information to specifically identified agencies

and persons. 22 M.R.S. § 4008(3)(A)-(M). Plaintiff clearly does not fall into any

of those categories and does not argue as such. Unauthorized disclosure is a Class

E crime. 22 M.R.S. § 4008(4). There is no exception or provision in Title 22

allowing for the redaction of records deemed confidential.

After an in camera review of the two sets of requested records, the Court finds

that all the requested documents both contain personally identifying information and

were created or obtained in connection with the Department's child protective

activities. For this reason, the requested records are confidential and cannot be

obtained through the FOAA. The Court finds that the denial of the records by the

Department was for just and proper cause and, therefore, judgment on Counts I & p

will be entered for the Commissioner.

. Count III: Disclosure of Information Under 22 M.R .S. § 4008-A{l -A)

For the purpose of complying with federal law in order to receive federal

funding, the Maine Legislature enacted 22 M.R.S. § 4008-l(l-A) 1 which states:

' The Child Abuse Prevention and Treatment Act (CAPfA) is a federal law providing grants to states to improve their child protective services systems in various areas. 42 U.S.C. § 5106a(a). One such area is that the state must have in effect "provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality." 42 U.S.C. § 5106a(b)(2)(B)(x). The legislative history shows that 22

5 The commissioner [of the Department] shall make public disclosure of the findings or information pursuant to this section in situations where child abuse or neglect results in a child fatality or near fatality, with the exception of circumstances, as determined with the advice of the Attorney General or appropriate district attorney, in which disclosure of child protective information would jeopardize a criminal investigation or proceeding.

The statute sets forth specific categories of information which may be disclosed,

including the name and age of the child; determinations made by an agency

investigating alleged abuse or neglect, and the findings upon which such

determinations were made; identification of any child protective or other services

provided and actions taken regarding the child and his or her family; and whether

the agency substantiated any report of abuse or neglect. 22 M.R.S. § 4008-A(2).

A plain reading of this statute shows that if, as here, the Commissioner

determines with the advice of the Attorney General's Office, that disclosure would

jeopardize pending criminal investigations or proceedings, he has the discretion to

choose not to disclose, despite the mandatory disclosure requirement of section

4008-A(l-A). The Defendant asserts that no cause of action exists under this

statutory provision.

If a statute does not explicitly state that a cause of action exists, the court must

determine whether a cause of action is implied. Charlton v. Town of Oxford, 2001

M.R.S. § 4008-A(l-A), which contains nearly identical language, was enacted for the sole purpose of bringing Maine into compliance with CAPTA. (See Pl.'s Br. Ex 5 and Def.'s Br. Ex. B).

6 ME 104, f 15, 774 A.2d 336. "The key to determining whether there is an implied

cause of action lies in the legislative intent, expressed either in the statute or the

legislative history." Id. The court in Charlton used statutory interpretation

principles to divine legislative intent, including an examination of where the relevant

section fell within the statutory scheme. Id. at f 16.

Here, the legislative history shows that section 4008-A(l-A) was enacted

solely to bring Maine into compliance with CAPTA, a federal law granting funding

to states to improve their child protective services .2 There is no indication in the

legislative history that the legislature intended to create a new cause of action.

An analysis of the statutory scheme further supports the view that a cause of

action was not contemplated to exist under Section 4008-A(l-A). Section 4008-A

is found in Title 22, Chapter 1071, entitled the "Child and Family Services and Child

Protection Act," §§ 4001-4099-H. Within the general provisions of that chapter, in

which section 4008-A is found, section 4006 specifically provides a mechanism for

appeals for "a party aggrieved by an order of a court entered pursuant to section

4035, 4054 or 4071." As section 4008-A is not included, while three other sections

specifically are, it is reasonable to conclude that the Legislature only intended to

provide a cause of action under those three sections . Moreover, Section 4008 deals

with the confidentiality and the permissive and mandatory disclosure of records and

' See note 1, infra .

7 contains a separate and specific subsection providing for the appeal of a denial of

disclosure of records. See 22 M.R.S. § 4008(7). Section 4008-A(l-A) addresses the

public disclosure of information by the Commissioner and does not have any

provision authorizing an appeal or other form of judicial review of the

Commissioner's determination that such public disclosure of child protective

information would jeopardize a criminal investigation or proceeding, thereby

supporting the conclusion that the Legislature did not intend to create such a cause

of action under these circumstances.

For the foregoing reasons, the Court finds that a cause of action does not exist

under 22 M.R.S. § 4008-A(l-A) under the facts of these cases and, therefore, Count

III will be dismissed. 3 In any event, if there is a mechanism for appeal or judicial

review with respect to the Commissioner's determination not to make a public

disclosure under section 4008-A(l-A) it would seem to be pursuant to Rule SOC and

the Maine Administrative Procedure Act, which is discussed below in the context of

Count IV of the Second Amended Complaint.

'The Court's finding that Plaintiff has no cause of action is confined to the facts of these cases. The Court does not speculate as to whether judicial relief would be available if, for example, the Commissioner refused to make a disclosure when there was no criminal proceeding or investigation.

8 Count IV: 80C Appeal of Agency Inaction

When an agency decision affects the "rights, duties or privileges of specific

persons, an aggrieved person can challenge that decision by filing a petition for

review with the Superior Court." M.R. Civ. P. 80C; Conservation Law Found. v.

Dep't of Envl. Prat. 2003 ME 62, ~ 19,823 A.2d 551 (emphasis added). The

Maine Administrative Procedure Act similarly states that "any person aggrieved by

the failure or refusal of an agency to act shall be entitled to judicial review thereof

in the Superior Court." 5 M.R.S. § 11001(2) (emphasis added). The term

"aggrieved" is undefined in the Maine Administrative Procedure Act. The Law

Court has previously found that to be "aggrieved," a party must suffer a

particularized injury, distinct from any injury experienced by the public at large.

Lindemann v. Comm 'n on Governmental Ethics & Election Practices, 2008 ME

187, ~ 14,961 A.2d 538.

Here, the injury suffered by Plaintiff as a result of the Commissioner's

decision not to issue the draft press releases after consultation with the Office of the

Attorney General, is indistinguishable from that of the general public. By virtue of

the Commissioner's decision, Plaintiff does not have the information it seeks.

Likewise, the general public does not have the information Plaintiff seeks.

Additionally, Rule 80C appeals apply to two categories of agency administrative

action: adjudication and rulemaking. See 5 M.R.S. §§ 8001 et seq. The

9 Commissioner's decision falls into neither of these categories. An agency rule was

not created and an adjudicatory decision having an effect on the rights, duties, or

obligations of the parties was not issued. Plaintiff has no right to the records

containing this information because they are not public records (see discussion on

Counts I & II, above). Therefore, the Commissioner's decision not to disclose

information contained in those records does not affect Plaintiff's rights and is thus

not adjudicatory.

For these reasons, the Court concludes that Plaintiff does not have standing to

bring a Rule SOC appeal of the Commissioner's decision not to issue the draft press

releases. Therefore, Count IV will be dismissed. In the event the Court's

determination on this point is incorrect, however, the Court finds it prudent to

discuss the merits of the Rule SOC claim.

Court review of a discretionary agency decision is subject to the abuse of

discretion standard. Sager v. Town of Bowdoinham, 2004 ME 40, ~ 11, 845 A.2d

567. "An abuse of discretion may be found where an appellant demonstrates that

the decisionmaker exceeded the bounds of the reasonable choices available to it,

considering the facts and circumstances of the particular case and the governing

law." Id.

Plaintiff contends that the Court must compare the draft press releases to the

complete Department records on Marissa Kennedy and Kendall Chick to review for

10 accuracy and completeness. The Court finds that such an inquiry is inappropriate. '

State agencies are presumed to act in good faith. Rossignol v. Me. Public Employees

Retirement System, 2016 ME 115, f 4 n.3, 114 A.3d 1175. Instead, the Court's role

in this Rule SOC review (assuming the Court has jurisdiction to engage in such

judicial review) is to determine whether, based on the information in the draft

proposed disclosures, it was an abuse of discretion for the Commissioner upon the

advice of the Attorney General's Office, to decide that public disclosure of that

information would jeopardize the pending criminal investigations and proceedings.

After review of the draft press releases under seal in the Court's file, the Court

concludes that it was not an abuse of discretion or outside the bounds of a reasonable

decision for the Commissioner to determine upon advice of the Attorney General's

Office, that issuance of the draft press releases would jeopardize the pending

criminal investigations and proceedings. For this alternative reason, judgment on

Count IV will be entered for the Commissioner.

Acknowledging that it is dicta, the parties requested that the Court provide

guidance as to when the Commissioner could make the public disclosures required

by 22 M.R.S. §4008-A(l-A) without risk of jeopardizing the pending investigations

and proceedings. In the Court's view, the Commissioner's determination that public

disclosure would jeopardize the pending investigations and proceedings remains in

11 effect until the three pending criminal proceedings in the Waldo and Lincoln County

Unified Criminal Dockets are completed.

CONCLUSION

The entry is:

Judgment for the Defendant on Counts I and II of the Second Amended

Complaint.

Counts III and IV are dismissed for lack of jurisdiction. Alternatively,

judgment for the Defendant on Count IV of the Second Amended Complaint.

The clerk is directed to incorporate this Decision and Order into the dockets

of these consolidated cases by notation reference in accordance with

79(a).

DATE: May 3, 2018

Justice, Maine Superior Court