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Maine High Court Finds "Bad Faith" in Denial of Public Records Request, Orders Payment of Requesters' Fees


From yesterday's decision in Human Rights Defense Center v. Maine County Comm'rs Ass'n Self-Funded Risk Management Pool (opinion by Justice Horton), interpreting the Maine Freedom of Access Act (FOAA), Maine's analog to the federal FOIA and other states' public records laws:

This case presents the first occasion for us to consider what constitutes "bad faith" for purposes of FOAA's fee-shifting provision. 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. 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….

HRDC is a non-profit organization that collects information from law enforcement and corrections agencies and other public entities in furtherance 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. Malcolm Ulmer, the Risk Pool's director of operations, maintains a claim file on each claim handled by the Risk Pool.

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. [Further details omitted. -EV]

[B]ad faith … 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…. An agency's failure to respond does not in itself establish bad faith. 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.

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.

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.

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."

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 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."

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 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.

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.

Carol J. Garvan, Zachary L. Heiden, and Anahita D. Sotoohi of the ACLU of Maine Foundation, and Loree Stark of the Human Rights Defense Center, represent plaintiffs.