Mainetoday Media, Inc. v. State

• Decision Date: 14 November 2013
• Docket Number: Docket No. Cum–13–155.
• Citation: 82 A.3d 104,2013 ME 100
• Parties: MAINETODAY MEDIA, INC. v. STATE of Maine.
• Court: Maine Supreme Court

82 A.3d 104

2013 ME 100

MAINETODAY MEDIA, INC.

v.STATE of Maine.

Docket No. Cum–13–155.

Supreme Judicial Court of Maine.

Argued: Sept. 9, 2013.

Decided: Nov. 14, 2013.

Sigmund D. Schutz, Esq. (orally), and Jonathan G. Mermin, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellant MaineToday Media, Inc.

Janet T. Mills, Attorney General, and William R. Stokes, Dep. Atty. Gen. (orally), Office of Attorney General, Augusta, for appellee State of Maine.

Patrick Strawbridge, Esq., Bingham McCutchen LLP, Boston, Massachusetts, for amici curiae The Reporters Committee for Freedom of the Press, New England First Amendment Center, Maine Association of Broadcasters, Maine Freedom of Information Coalition, Maine Press Association, and Associated Press.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

GORMAN, J.

[¶ 1] MaineToday Media, Inc., d/b/a Portland Press Herald/Maine Sunday Telegram, appeals from a decision of the Superior Court (Cumberland County, Cole, J.) upholding the State of Maine's denial of Maine Today's request to inspect and copy Enhanced 9–1–1 (E–9–1–1) call transcripts. MaineToday argues that the Freedom of Access Act (FOAA), 1 M.R.S. §§ 400–414 (2012), mandates disclosure of the transcripts as public records and that no exception to their disclosure applies.¹ We vacate the judgment.

I. BACKGROUND

[¶ 2] The parties stipulated to the following facts. During 2012, Derrick Thompson, his mother Susan Johnson, and his girlfriend Alivia Welch were renting an apartment in Biddeford from landlord James Earl Pak. On December 29, 2012, at 6:07 p.m., Thompson placed a call to E–9–1–1 regarding an altercation with Pak. Biddeford police responded to the call and left after speaking with Thompson and Pak. Three minutes after police left the scene, and forty-seven minutes after Thompson's initial E–9–1–1 call, Johnson placed a second call to E–9–1–1 to report that Pak had shot her, Thompson, and Welch.² Eight minutes after that, Pak's wife, Armit Pak, placed a third call to E–9–1–1. All three calls were recorded and transcripts for each have been prepared.

[¶ 3] On January 2, 2013, MaineToday sent the first of a series of requests to inspect and copy the three Pak transcripts to the Biddeford Police Department, the Maine State Police within the Department of Public Safety (MSP), the Attorney General's Office, and the Bureau of Consolidated Emergency Communications.³ The State ⁴ denied the requests on the ground that the transcripts constituted “intelligence and investigative information” in a pending criminal matter, and therefore were confidential pursuant to the Criminal History Record Information Act (the CHRIA), 16 M.R.S. §§ 611– 623 (2012).

[¶ 4] MaineToday petitioned the Superior Court for review of the State's denial pursuant to 1 M.R.S. § 409(1). In March of 2013, after conducting a hearing and an in camera review of the unredacted transcripts and the audio recordings of each E–9–1–1 call in the Pak matter, the court affirmed in its entirety the State's denial of MaineToday's request. MaineToday appeals.

II. DISCUSSION

[¶ 5] This case “highlights the conflict that exists between the public interest in open access to governmental records, on the one hand, and the public interest in protecting the integrity of criminal investigations... on the other.” Lewiston Daily Sun v. City of Lewiston, 596 A.2d 619, 622 (Me.1991). We consider, for the first time, the public disclosure of information transmitted through E–9–1–1 calls by evaluating the interplay of three distinct Maine statutes—FOAA; the CHRIA; and the emergency services communication statute (the ESC), 25 M.R.S. §§ 2921–2935 (2012).

[¶ 6] In interpreting these provisions, we first look to the plain language of the provisions to determine their meaning. Anastos v. Town of Brunswick, 2011 ME 41, ¶ 9, 15 A.3d 1279. If the language is unambiguous, we interpret the provisions according to their unambiguous meaning “unless the result is illogical or absurd.” Cyr v. Madawaska Sch. Dep't, 2007 ME 28, ¶ 9, 916 A.2d 967. If the plain language of a statute is ambiguous—that is, susceptible of different meanings—we will then go on to consider the statute's meaning in light of its legislative history and other indicia of legislative intent. Anastos, 2011 ME 41, ¶ 9, 15 A.3d 1279;Competitive Energy Servs. LLC v. Pub. Utils. Comm'n, 2003 ME 12, ¶ 15, 818 A.2d 1039.

[¶ 7] Pursuant to 1 M.R.S. § 409(1), the Superior Court conducted “a trial de novo” to determine whether the denial of MaineToday's FOAA request “was not for just and proper cause.” Although the parties filed an agreed-to statement of facts, we review any additional findings made by the Superior Court for clear error, and consider its legal conclusions, including the interpretation of the relevant statutory provisions, de novo. Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, ¶ 10, 871 A.2d 523.

A. Applicable Statutes

1. Freedom of Access Act

[¶ 8] Like its federal counterpart, the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552 (West, Westlaw through P.L. 113–31 approved 8–9–13),⁵ FOAA's “basic purpose ... is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” ⁶John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quotation marks omitted). The Legislature has declared that “public proceedings exist to aid in the conduct of the people's business,” and enacted FOAA with the express intent that public actions “be taken openly and that the records of [public] actions be open to public inspection and [public] deliberations be conductedopenly.” 1 M.R.S. § 401; see Citizens Commc'ns Co. v. Att'y Gen., 2007 ME 114, ¶ 9, 931 A.2d 503. To that end, FOAA requires generally that, “[e]xcept as otherwise provided by statute, a person has the right to inspect and copy any public record in accordance with this section within a reasonable time of making the request to inspect or copy the public record.” ⁷1 M.R.S. § 408–A; see S. Portland Police Patrol Ass'n v. City of S. Portland, 2006 ME 55, ¶ 6, 896 A.2d 960. To best promote its “underlying purposes and policies as contained in the declaration of legislative intent,” FOAA explicitly states that it must be “liberally construed and applied.” 1 M.R.S. § 401.

[¶ 9] Excepted from the definition of public records, however, and therefore exempt from the general rule of disclosure, are records that fall within any one of nineteen categories set out in 1 M.R.S. § 402(3)(A)-(R). See S. Portland Police Patrol Ass'n, 2006 ME 55, ¶ 6, 896 A.2d 960. “The burden of proof is on the agency or political subdivision [from which the information is sought] to establish just and proper cause for the denial of a FOAA request.” ⁸Anastos, 2011 ME 41, ¶ 5, 15 A.3d 1279 (quotation marks omitted); see1 M.R.S. § 408–A(4). Further, the necessary corollary of the directive to liberally construe FOAA is the “strict construction of any exceptions to the required public disclosure,” Citizens Commc'ns, 2007 ME 114, ¶ 9, 931 A.2d 503.

[¶ 10] The parties do not dispute that the audio recordings of E–9–1–1 calls and documents transcribing those audio recordings are in the possession of one or more government agencies—here, the Bureau of Emergency Services Communication, the Attorney General's Office, the Biddeford Police Department, the Maine State Police, and the Department of Public Safety, at least—and are used in connection with public or governmental business, that is, the provision of public emergency services. See1 M.R.S. § 402(3); Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶¶ 10–18, 884 A.2d 667 (discussing whether an entity is a government agency with reference to its function, source of funding, whether the government maintains involvement in or control over the entity, and whether it was created by private or legislative action).

[¶ 11] The audio recordings of E–9–1–1 calls and the transcripts of those calls therefore are subject to disclosure as public records unless they fall within one of the exceptions found in 1 M.R.S. § 402(3)(A)-(R). Of these, the only exception relevant to the present matter is one for “[r]ecords that have been designated confidential by statute.” 1 M.R.S. § 402(3)(A). Whether the transcripts of the Pak E–9–1–1 calls do not qualify as public records and are exempt from FOAA because they are confidential pursuant to a statute first depends on an analysis of the ESC, and then on the application of the CHRIA.

2. Emergency services communication

[¶ 12] Pursuant to the ESC, it is the duty of the Emergency Services Communication Bureau (the Bureau), within the Public Utilities Commission, to “implement and manage” the E–9–1–1 system.⁹25 M.R.S. § 2926(1). Pursuant to 25 M.R.S. § 2926(3), the Bureau has promulgated various rules regarding the E–9–1–1 system. 9 C.M.R. 65 625 001 (2007). These rules provide, inter alia, that both sides of the conversation for every incoming E–9–1–1 call must be recorded, with the year, date, and time of each call contemporaneously documented. 9 C.M.R. 65 625 001–4 § 3(4)(B). Those recordings must be retained for at least thirty days, and ideally, for at least sixty days. 9 C.M.R. 65 625 001–4 § 3(6)(B)(3). The statute further provides that “[t]he system databases, wherever located or stored, are the property of the bureau and their confidentiality is governed by section 2929.” 25 M.R.S. § 2926(6).

[¶ 13] Section 2929, in turn, draws a distinction between the transcripts of E–9–1–1 calls and the audio recordings of the calls; it states that although the E–9–1–1 audio recordings are “confidential and may not be disclosed,” the “information contained in the audio recordings is public information and must be disclosed in transcript form.” 25 M.R.S. § 2929(4).

[¶ 14] When an E–9–1–1 transcript is requested pursuant to ...