MaineToday Media, Inc. v. State of Maine

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 100
Docket: Cum-13-155
Argued: September 9, 2013
Decided: November 14, 2013

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

MAINETODAY MEDIA, INC.

v.

STATE OF MAINE

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 MaineToday’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.

1
The Reporters Committee for Freedom of the Press, the New England First Amendment Center, the
Maine Association of Broadcasters, the Maine Freedom of Information Coalition, the Maine Press
Association, and the Associated Press have filed a joint amicus curiae brief in support of MaineToday’s
position.
2

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

2
Pak was charged by criminal complaint on December 31, 2012, and held without bail. State v. Pak,
ALFSC-CR-2012-2747 (Me. Super. Ct., York Cty.). On February 5, 2013, he was indicted on two counts
of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2012); one count of aggravated attempted
murder (Class A), 17-A M.R.S. § 152-A(1) (2012); one count of elevated aggravated assault (Class A),
17-A M.R.S. § 208-B(1)(A) (2012); and one count of burglary (Class A), 17-A M.R.S. § 401(1)(B)(1)
(2012). Pak pleaded not guilty to all charges, is undergoing psychiatric evaluations, and remains in jail
awaiting his trial.
3
Although MaineToday eventually requested “all E-9-1-1 transcripts in connection with all active
homicide investigations and all ongoing homicide prosecutions, including but not limited to the three calls
 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).

on the day of the James Pak shooting,” the parties’ argument focuses only on the Pak transcripts, and
those are the only transcripts we consider in this appeal.
4
The State, as represented by the Attorney General’s office, apparently accepted the ultimate
responsibility for responding to MaineToday’s requests.
4

[¶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.
 5

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.”6 John Doe Agency v. John Doe Corp., 493 U.S.

146, 152 (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 conducted openly.” 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

5
“Cases decided pursuant to FOIA inform our analysis of Maine’s FOAA.” Blethen Me.
Newspapers, Inc. v. State, 2005 ME 56, ¶ 13, 871 A.2d 523.
6
“The generation that made the nation thought secrecy in government one of the instruments of Old
World tyranny and committed itself to the principle that a democracy cannot function unless the people
are permitted to know what their government is up to.” U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 772-73 (1989) (quotation marks omitted).
6

reasonable time of making the request to inspect or copy the public record.”7

1 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 whom the information is sought] to establish

just and proper cause for the denial of a FOAA request.”8 Anastos, 2011 ME 41,

¶ 5, 15 A.3d 1279 (quotation marks omitted); see 1 M.R.S. § 408-A(4). Further,

the necessary corollary of the directive to liberally construe FOAA is the “strict
7
A “public record” is

any written, printed or graphic matter or any mechanical or electronic data compilation
from which information can be obtained, directly or after translation into a form
susceptible of visual or aural comprehension, that is in the possession or custody of an
agency or public official of this State or any of its political subdivisions, or is in the
possession or custody of an association, the membership of which is composed
exclusively of one or more of any of these entities, and has been received or prepared for
use in connection with the transaction of public or governmental business or contains
information relating to the transaction of public or governmental business.

1 M.R.S. § 402(3) (2012).
8
To the extent we have suggested that the party who submitted a FOAA request bears the burden of
establishing a FOAA violation, we clarify now that it is the agency’s burden—in denying the request,
before the Superior Court, and before us—to show that some exception to FOAA applies. See, e.g.,
Yusem v. Town of Raymond, 2001 ME 61, ¶ 16, 769 A.2d 865; Chase v. Town of Machiasport, 1998 ME
260, ¶ 9, 721 A.2d 636.
 7

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. See 1 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
8

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.9 25 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

9
Although MaineToday filed its FOAA request with the Bureau of Consolidated Emergency
Communications, that agency is part of the Department of Public Safety and provides call-taking and
dispatching services for municipalities and entities that do not have their own public safety answering
point. 25 M.R.S. §§ 1533, 2923-A (2012). It is the Emergency Services Communication Bureau, within
the Public Utilities Commission, that administers the E-9-1-1 system and maintains E-9-1-1 records.
25 M.R.S. § 2926(1), (6) (2012).
 9

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 section 2929(4),

however, “confidential information” from that call, as defined in 25 M.R.S.

§ 2929(1), may not be disclosed.10 For purposes of section 2929, only the names,

addresses, telephone numbers, and certain medical information of particular people

qualifies as “confidential information.” In addition, the statute expressly provides

that when a transcript contains such “confidential information,” any other

information from those calls that is not “confidential information” remains subject

to the disclosure requirements of FOAA. 25 M.R.S. § 2929(3).

[¶15] In short, title 25 may be read consistently with FOAA to require that,

upon request, E-9-1-1 transcripts—but not the audio recordings themselves—must

be disclosed after any “confidential information” as defined in section 2929(1) is

removed.11 The next issue, then, is whether, even if redacted pursuant to section

10
The statute contains exceptions that allow the disclosure of E-9-1-1 audio recordings, including
“confidential information” from those recordings, to certain agencies for specific purposes. 25 M.R.S.
§ 2929(2)(A)-(D), (4)(A)-(D) (2012). None of these exceptions applies here.
11
The issue of redaction itself is also the subject of some dispute. The statute requires the excising of
confidential information from an otherwise public document. 25 M.R.S. § 2929(1)-(3) (2012); see
Springfield Terminal Ry. Co. v. Dep’t of Transp., 2000 ME 126, ¶ 11 n.4, 754 A.2d 353. In some
instances, however, the information “cannot be dissected into sensitive and nonsensitive information
because [it is contained in] a single, integrated [document]. Anastos v. Town of Brunswick, 2011 ME 41,
¶ 12, 15 A.3d 1279. The Superior Court in this matter determined that redaction was not appropriate:
“Due to the abstract nature of the danger, redacting the transcripts is not feasible . . . .” The State does not
10

2929, the Pak E-9-1-1 transcripts are otherwise “designated confidential by statute”

such that they do not meet the definition of public records and the disclosure

generally mandated by FOAA does not apply. 1 M.R.S. § 402(3)(A). The statute

on which the State relies in arguing that the E-9-1-1 transcripts are “designated

confidential by statute” is the CHRIA.

3. Criminal History Record Information Act

[¶16] The CHRIA dictates whether, when, to whom, and how criminal

history information may be disclosed. 16 M.R.S. §§ 611-623. As it applies to the

present matter, the CHRIA limits the “dissemination of intelligence and

investigative information” as follows:12

1. Limitation on dissemination of intelligence and
investigative information. Reports or records that contain
intelligence and investigative information and that are prepared by,
prepared at the direction of or kept in the custody of a local, county or
district criminal justice agency; the Bureau of State Police; [or] the
Department of the Attorney General . . . are confidential and may not
be disseminated if there is a reasonable possibility that public release
or inspection of the reports or records would:

A. Interfere with law enforcement proceedings;

B. Result in public dissemination of prejudicial information
concerning an accused person or concerning the prosecution’s

argue that the transcripts here are too integrated with confidential information to redact, but rather that
“surgical redaction” is too burdensome for it to accomplish. The statute contains no exception to
disclosure based on the onerousness of the task, however.
12
The intentional dissemination of confidential intelligence and investigative information is a Class E
crime. 16 M.R.S. § 614(4) (2012).
 11

evidence that will interfere with the ability of a court to impanel
an impartial jury;

C. Constitute an unwarranted invasion of personal privacy;

D. Disclose the identity of a confidential source;

E. Disclose confidential information furnished only by the
confidential source;

F. Disclose trade secrets or other confidential commercial or
financial information designated as such by the owner or source
of the information or by the Department of the Attorney
General;

G. Disclose investigative techniques and procedures or security
plans and procedures not generally known by the general
public;

H. Endanger the life or physical safety of any individual,
including law enforcement personnel;

I. Disclose conduct or statements made or documents submitted
by any person in the course of any mediation or arbitration
conducted under the auspices of the Department of the Attorney
General;

J. Disclose information designated confidential by some other
statute; or

K. Identify the source of complaints made to the Department of
the Attorney General involving violations of consumer or
antitrust laws.

....

16 M.R.S. § 614(1). The unambiguous language of section 614 demonstrates the

Legislature’s intent to shield law enforcement from the obligation to disclose
12

materials that might compromise its public safety mission. As we have said, the

“important policy objectives” of section 614 are those of

(1) protecting the integrity of criminal prosecutions and the
constitutional right of those charged with crimes to a fair and
impartial jury; (2) maintaining individual privacy and avoiding the
harm that can result from an unjustified disclosure of sensitive
personal or commercial information; and (3) ensuring the safety of the
public and law enforcement personnel.

Blethen Me. Newspapers, Inc., 2005 ME 56, ¶ 12, 871 A.2d 523 (footnotes

omitted).

[¶17] Despite these important objectives, confidentiality pursuant to the

CHRIA is afforded only if the record that the government seeks to shield

(1) contains intelligence or investigative information; (2) was prepared by or at the

direction of, or is kept in the custody of, a criminal justice agency; and (3) would,

if disclosed, create a reasonable possibility of one or more of the harms detailed in

section 614(1)(A)-(K).

B. Analysis

1. Intelligence or investigative information

[¶18] For purposes of section 614, “intelligence and investigative

information” is defined as

information collected by criminal justice agencies or at the direction
of criminal justice agencies in an effort to anticipate, prevent or
monitor possible criminal activity, including operation plans of the
collecting agency or another agency, or information compiled in the
course of investigation of known or suspected crimes, civil violations
 13

and prospective and pending civil actions. “Intelligence and
investigative information” does not include information that is
criminal history record information.

16 M.R.S. §§ 611(8) (emphasis added). Section 611(8) therefore presents two

alternatives by which a record could meet this definition—if it is collected by or at

the direction of a criminal justice agency with regard to criminal activities or if it is

compiled in the course of investigating a crime. 13

a. Collected by or at the direction of a criminal justice agency

[¶19] Because the ESC makes clear that E-9-1-1 transcripts are the property

of the Bureau no matter where they are located or stored, the entity at issue in

determining whether E-9-1-1 transcripts are collected by or at the direction of a

criminal justice agency is the Bureau itself. 25 M.R.S. § 2926(6).

[¶20] A “[c]riminal justice agency” is defined as “a federal, state, district,

county or local government agency or any subunit thereof that performs the

administration of criminal justice under a statute or executive order, and that

allocates a substantial part of its annual budget to the administration of criminal

justice” and includes “[c]ourts and the Department of the Attorney General.”

16 M.R.S. § 611(4).

13
To the extent MaineToday suggests that information compiled in the investigation of a crime only
qualifies as intelligence or investigative information if it was compiled by a criminal justice agency, it has
misread the plain terms and structure of the statute, which provides for two distinct alternatives.
16 M.R.S. § 611(8) (2012).
14

[¶21] The Bureau is part of the Public Utilities Commission. 25 M.R.S.

§ 2926(1). It “implement[s] and manage[s] E-9-1-1” by developing system

elements, providing quality assurance, and providing call coverage and technical

support, and is funded through statewide surcharges on telecommunications

services. 25 M.R.S. §§ 2926, 2927. Although the Bureau’s product is certainly

used for criminal justice purposes on a daily basis, the Bureau manages the

telecommunications necessary for the provision of emergency services, and does

not meet the definition of a criminal justice agency.

b. Compiled in investigating a crime

[¶22] Alternatively, the E-9-1-1 transcripts qualify as intelligence or

investigative information if they were “compiled” for purposes of investigating

known or suspected crimes. 16 M.R.S. § 611(8).

[¶23] The United States Supreme Court has had occasion to consider the

meaning of “compile” pursuant to FOIA. In John Doe Agency, the Supreme Court

noted that a compilation, “in its ordinary meaning, is something composed of

materials collected and assembled from various sources or other documents” and

“seems readily to cover documents already collected by the Government originally

for non-law-enforcement purposes.” 493 U.S. at 153. The Supreme Court also

took pains to note that “compiled” is not synonymous with “originally compiled,”

and thus includes information gathered from multiple sources, and created at
 15

previous times and for different purposes. Id. at 154. In short, the Supreme Court

held, “information originally compiled for a non-law-enforcement purpose” can

nevertheless be exempt from disclosure “when it is recompiled at a future date for

law enforcement purposes.” Id. at 157.

[¶24] According to the plain language of this portion of section 614, as

informed by the analyses in John Doe Agency, the State has established that the

transcripts are intelligence and investigative information pursuant to this

alternative.14 Although the audio recordings and transcripts were created by the

Bureau for administrative purposes, we agree that the Maine State Police, the

Attorney General’s Office, and/or the Biddeford Police Department have

“compiled” them for the purpose of investigating the crimes with which Pak was

charged.

2. Preparation or custody

[¶25] Next, section 614 applies only to that information prepared for or

maintained by particular government agencies or types of agencies. Here, the

E-9-1-1 transcripts, even if not prepared by or at the direction of law enforcement,

14
There is no dispute that the information requested by MaineToday does not constitute “criminal
history record information,” defined as “notations or other written evidence of an arrest, detention,
complaint, indictment, information or other formal criminal charge relating to an identifiable person,”
including “the identification or description of the person charged and any disposition of the charge.”
16 M.R.S. §§ 611(3), (8) (2012).
16

are kept in the custody of the Bureau of State Police or the Department of the

Attorney General, two entities specifically named in section 614(1).15

3. Reasonable possibility

[¶26] Finally, it was the State’s burden to establish that disclosing the

transcripts would create a reasonable possibility of one or more of the harms

detailed in section 614(1)(A)-(K). 16 Because the CHRIA does not define a

“reasonable possibility” for purposes of determining the scope of a FOAA

exception, we look to the plain and ordinary meaning of the terms. See State v.

Paradis, 2010 ME 141, ¶ 6, 10 A.3d 695. “Reasonable” means “the product of a

rational thought process.” State v. Estes, 418 A.2d 1108, 1115 (Me. 1980)

(quotation marks omitted). It may be defined as “[f]air, proper, or moderate under

15
MaineToday suggests that even if the copies of the transcripts in the police and prosecutors’ files
are confidential pursuant to section 614, the copies in the Bureau files are not, given that the transcripts
continue to be the property of Bureau no matter where they are stored or how they now are being used,
see 25 M.R.S. §§ 2926(6), 2929(3) (2012). This argument is not persuasive. We have held that the
“location of the document has no bearing on its status” unless the statute affording confidentiality states
that such confidentiality depends on where the information is physically kept. S. Portland Police Patrol
Ass’n v. City of S. Portland, 2006 ME 55, ¶ 8, 896 A.2d 960; see Cyr v. Madawaska Sch. Dep’t, 2007 ME
28, ¶ 17, 916 A.2d 967 (Calkins, J., dissenting) (“The physical location of the information is not
important.”). Indeed, allowing the dissemination of the Bureau version of a transcript while maintaining
the statutory confidentiality of the AG’s identical copy of the same transcript would render the purpose of
that statutory confidentiality a complete nullity. The danger is not, as MaineToday contends, that law
enforcement can render confidential any document merely by placing it in a police file, but instead that
one agency would disclose a document that another agency is entitled to keep confidential. See Lewiston
Daily Sun v. City of Lewiston, 596 A.2d 619, 622 (Me. 1991) (“[T]he consequences of an erroneous
public release are irreversible.”). In fact, the Legislature clearly intended that the requirements of the
CHRIA, in conjunction with those of the ESC, be rigorous enough to preclude the sheltering of a public
document in an unrelated confidential file. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 157
(1989) (stating that “[e]vasional commingling” is prevented by the language of the statute requiring
consideration of the nature of each document).

16
As a practical matter, this may need to be accomplished through the submission of sealed files or an
in camera review. See Springfield Terminal Ry. Co., 2000 ME 126, ¶ 14, 754 A.2d 353.
 17

the circumstances,” Black’s Law Dictionary 1379 (9th ed. 2009), or as “not

absurd,” “not ridiculous,” “not extreme,” or “not excessive,” Webster’s Third New

International Dictionary 1892 (2002).

[¶27] As we have stated in other contexts, a reasonable possibility is

different, and less burdensome to prove, than a reasonable probability; it is

synonymous with a “reasonable likelihood,” and is a lower standard than a

preponderance of the evidence. See State v. Pabon, 2011 ME 100, ¶ 35, 28 A.3d

1147 (considering the reasonable possibility standard for determining the

likelihood that a different jury instruction would have led to a more favorable

verdict); Terry v. T. J. C. Coin & Stamp Co., 447 A.2d 812, 814 (Me. 1982)

(“Reasonable possibility is a standard less onerous than proof that success is more

likely than not.” (quotation marks omitted)); Bowman v. Dussault, 425 A.2d 1325,

1328 (Me. 1981) (evaluating the propriety of an attachment order based on whether

the underlying claim has a “reasonable possibility of recovery”).

[¶28] The State asserted to MaineToday and before the Superior Court that

disclosing the E-9-1-1 transcripts would create the reasonable possibility of

interfering with law enforcement proceedings pursuant to 16 M.R.S. § 614(1)(A).17

17
The State also asserted that disclosing the transcripts would interfere with its ability to impanel an
impartial jury pursuant to 16 M.R.S. § 614(1)(B), and would invade the personal privacy of those
involved pursuant to 16 M.R.S. § 614(1)(C). The Superior Court determined that the State did not meet
its burden as to either of these two grounds, and the State did not appeal those portions of the court’s
decision. Thus, we do not consider the State’s contentions that it established these two alternative bases
for maintaining the confidentiality of the Pak transcripts because they are not preserved for appellate
18

We considered a similar issue in Campbell v. Town of Machias, in which a woman

sought—and was denied—access to police records regarding a report lodged

against her by her bank. 661 A.2d 1133, 1134 (Me. 1995). We discussed the ways

in which the disclosure of records could interfere with law enforcement

proceedings—by “prematurely reveal[ing] the scope, nature or direction of the

government’s case”; “allow[ing] the target of a criminal investigation to construct

defenses or to fabricate alibis”; “creat[ing] the possibility of harassment or

intimidation of witnesses”; or “result[ing] in the destruction of evidence.” Id. at

1136. We concluded that the prosecutor’s justification for denying the request on

grounds that disclosure would “compromise the case by providing discovery prior

to a formal charged being lodged” against her, and would “interfere with the

collection of evidence and might result in the harassment of witnesses” was

sufficient to meet the State’s burden because it was “the kind of showing

approved” by federal courts in FOIA matters. Id. at 1136.

[¶29] Here, in contrast, the State identified no such specific concerns, but

instead offered an explanation for the denial that merely reiterated the language of

the statute itself. The timing of the charges also affects the comparison of

Campbell with the present matter. Whereas the State in Campbell had not yet

review. See M.R. App. P. 2(b)(4); Langevin v. Allstate Ins. Co., 2013 ME 55, ¶ 6 n.4, 66 A.3d 585
(stating that when a party does not cross-appeal, its contentions of error by the trial court are not
preserved for appellate review); Lyle v. Mangar, 2011 ME 129, ¶ 22, 36 A.3d 867 (same); Millien v.
Colby Coll., 2005 ME 66, ¶ 9 n.3, 874 A.2d 397 (same).
 19

pursued any charges against the defendant, Pak had already been the subject of an

initiating criminal complaint when MaineToday first requested the transcripts.18

Although the State contends that, even while an indictment is pending, the

investigation remains ongoing, it did not identify any particular investigation yet to

be completed in the Pak matter or how those portions of the investigation could be

affected by the availability of the Pak E-9-1-1 transcripts.19 Rather, the State seeks

a blanket rule that “in any active homicide investigation (including unsolved cases)

and/or prosecutions, any E-911 recording and transcript constitutes intelligence

and investigative information subject to 16 M.R.S. § 614,” and that such

recordings and transcripts fulfill the requirements of section 614 and therefore are

confidential as a matter of course.

[¶30] The United States Supreme Court has rejected such “universal”

approaches that ask the court to “presume that virtually every [record] is

confidential” and render these rebuttable presumptions “in practice all but

irrebuttable.” U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 175, 177 (1993).

The Supreme Court instead interpreted FOIA to require a “more particularized

18
By the time MaineToday filed its petition with the Superior Court, Pak had already been indicted on
the five counts.
19
Even the Superior Court was unable to determine any specific evils that disclosure of the transcripts
would cause, referring to the possibility of any resulting harm as “abstract,” “hypothetical[],” and
“impossible to conceive.” Such unidentified and speculative harms are not the types of harm that FOAA
seeks to prevent. FOAA’s exceptions are to be narrowly construed to serve its larger purpose of
transparency in government. 1 M.R.S. § 401; Citizens Commc’ns Co. v. Att’y Gen., 2007 ME 114, ¶ 9,
931 A.2d 503.
20

approach” based on the circumstances surrounding each record at issue, which is

an approach that more closely aligns with the purposes and language of the statute.

Id. at 180. If the Maine Legislature had intended to exempt from disclosure all

E-9-1-1 transcripts, or even all E-9-1-1 transcripts that relate to active homicide

cases, it could have, as it did with juvenile fire setter records and ambulance

medical reports, for example. See 1 M.R.S. § 402(3)(H)-(I); Landano, 508 U.S. at

178 (noting that there is “no persuasive evidence that Congress intended for [a law

enforcement agency] to be able to satisfy its burden in every instance simply by

asserting that [the record was obtained] during the course of a criminal

investigation”).

[¶31] Here, the Attorney General did not present any particularized

possibility of harm. For example, there is no suggestion that other witnesses at the

scene would amend their testimony to be consistent with that of the 9-1-1 callers.

Given the broad purpose of FOAA and the narrow reach of its exceptions, and

mindful of the presumptive right of public access to criminal court proceedings,

see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), we

conclude that the State failed to meet its burden of establishing the reasonable

possibility that disclosure of the Pak E-9-1-1 transcripts would interfere with law

enforcement proceedings pursuant to section 614(1)(A). Thus, the Pak E-9-1-1
 21

transcripts, as redacted pursuant to 25 M.R.S. § 2929(2)-(3), are public records

subject to disclosure pursuant to the Freedom of Access Act.

The entry is:

Judgment vacated and remanded to the Superior Court
with instructions to enter a judgment requiring the State
to disclose the E-9-1-1 call transcripts associated with the
Pak matter, as redacted pursuant to 25 M.R.S.
§ 2929(2)-(3) (2012).

On the briefs:

Sigmund D. Schutz, Esq., 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.,
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

At oral argument:

Sigmund D. Schutz, Esq. for appellant MaineToday Media, Inc.

William R. Stokes, Dep. Atty. Gen., for appellee State of Maine

Cumberland County Superior Court docket number AP-2013-6
FOR CLERK REFERENCE ONLY