STATE OF MAINE CUMBERLAND, SS
SUPERIOR COURT DOCKET NO. AP-05-026
SOUTH PORTLAND POLICE PATROLMAN'S ASSOCIATION and POLICE COkIMAND AND SUPERVISORY UNIT, Petitioners VS. CITY OF SOUTH PORTLAND Respondent
ORDER ON 80B APPEAL
Before the court is Respondent City o f South PoFtland's ( the "City") motion for Summary Judgment on an appeal brought by Petitioners South Portland Police Patrolman's Association and the Police Command and Supervisory Unit, (the "Associations") pursuant to M.R.Civ.P. 80B. The Associations appeal the City's denial of access to a report (the "Report") produced in March of 2005 by City of South I'ortland Human Resource Director Beth Drennan-Bates. This report is the product of an internal affairs investigation. The Associations claim, on information and belief, that the Report includes matters relating to management practices within the police department as a whole, which are discoverable under Maine's Freedom of Access Act, 1 M.R.S.A. 401 et seq. ("FOAA"). The parties agree that the legal issue in this matter is whether the Report is
a public document accessible under the Freedom of Access Act, 1 k4.R.S.A. § 401
et seq. ("FOAA") or whether it falls within the personnel records exemption to the FOAA, 30-A M.R.S.A.§ 2702. The City has produced a copy of the Report for
the court's inspection, and argues that in camera review of this d ocument is all that is needed for the court to render summary judgment in this matter. The court agrees that this matter is ripe for summary judgment, and that the Associations are able to, and have capably responded to the City's legal argument that the Report is protected from access under the personnel records exemption to the FOAA.
Is the Report Protected Under the Personnel Records Exemption to the FOAA?
The FOAA states in part, "Public proceedings exist to aid in the cortduct of the people's business. It is the i ntent of the Legislature that. . . the records of their actions be open to public inspection." 1 h4.R.S.A.§ 401. further states, 'public records' m oans a ny writtori. . . m atter. . . t hat is in tho possession or custody or an agency or public official of tlus State or any of its political subdivisions. . . a nd has been received or prepared for use in connection w ith t he transaction of public or governmental business. . . except: ( A) Records that have been designated confidential by statute.
5 402 of the FOAA
30-A M.R.S.A.§ 2702 states, with explicit reference to the FOAA, that
municipal records pertaining to an identifiable employee. . . c ontail~[ing] clomplaints, charges or accusations of misconduct, [ replies to those complaints, charges or accusations and any other information or materials that may result in disciplinary action [are] . . . confidential. . . If disciplinary action is taken, the final xvritten decision relating to that action is no longer confidential after the decision is completed if it imposes or upholds discipline. The Law Court has interpreted the purpose of this exemption as a protection for municipal employees from public disclosure of any of their personnel records except the final written report of any disciplinary action taken against them.
Lewistolz Daily S I A ZJ. City of L C U J ~ S 596 ~ Z , 619. Thus, to the extent the ~ ~ O A.2d
Report contains information concerning complaints against a specific employee,
i t is exempted from disclosure under § 2702. S ee id. Additionally, even if the a investigation resulted in disciplinary action, the statute a llo~vs ccess only to a final written decision relating to that action. T he Report is itself n ot the "final written decision" which imposes discipline, thus, to the extent it is confidential, it remains so under 2702, even if discipline has been imposed.
A different qucstion arises with respect to information in the Report not directly related to an identifiable employee. The Law Court has stated that the F OAA m andates a liberal construction of its terms, and that courts therefore are required to interpret strictly any statutory exceptions to its requirements. R ~ I I-R O Y P ub. Co. v. C t ofBa71gor, 544 A.2d 733, 73b iy
(ME1988). 5 2702 by its terms only
exempts from the F OAA records pertaining to an identifiable employee. The Report is a mixed product of employee critique and recommendations involving the whole department. 'Sherefore, the information t hat is not employee-specific should be made available to the Associations under the F OiLZ. See id. Accordingly, the c ourt h as redacted those portioi7s of the Report that are confidential under FOAA.
A copy of this order w ith the redacted Report is to be provided to
Respondent and a copy of this order without the redacted Report is to be provided to Petitioners. If n o timely appeal is taken from this order by
Respondent, then the redacted Report shall be provided to Petitioners. If this order is timely appealed by Respondent, the redacted Report 1,17ill r emain impounded pending resolution of the appeal. The entry is:
Responder7tfs motion for s ummary j udgment is GRANTED. The o redacted Report is to be released < Petitioners upon expiration of the appeal period.
Dated at Portland, Maine this
% x d ay of
Robert E. ~ r o x q ~ Justice, Superior c ourt
Docket N o.
R DR APPRAT.
SOUTH PORTLAND POLICE PATROL ASSOCIATION SOUTH PORTLAND POLICE COMMAND & SUPERVIOSRY UNIT
C ITY OF SOUTH PORTLAND
DANIEL R . FELKEL, ESQ. PO BOX 9 7 1 1 PORTLAhTD, M 0 4 1 0 4 - 5 0 1 1 E 780-6789
Defendant's Attorney Mary Kahl, E s q . PO BOX 9 4 2 2
SOUTH PORTLAND, M 0 4 1 1 6 - 9 4 2 2 E 207-767-7605
Date of Entry