MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 151
Docket: Cum-14-227
Submitted
On Briefs: December 1, 2014
Decided: December 23, 2014
Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
MICHAEL A. DOYLE
v.
TOWN OF FALMOUTH et al.
PER CURIAM
[¶1] Michael A. Doyle appeals from a judgment of the Superior Court
(Cumberland County, Warren, J.) entered in favor of the Town of Falmouth and
the Falmouth School Department, following the partial denial of Doyle’s request
pursuant to the Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-414 (2014),1 for
the unredacted cellular telephone records of the former Superintendent of Schools.
Doyle contends that the court erred in permitting the School Department to redact
from the records certain line telephone and cellular telephone numbers.2 We
affirm.
1
Title 1 M.R.S. § 402 (2013), which was in effect at the time of the events underlying this case, has
since been amended. P.L. 2013 c. 518, §§ 1-3 (effective Aug. 1, 2014) (codified at 1 M.R.S. § 402
(2014)). The amendment in no way affects our analysis.
2
Doyle also contends that the court erred in denying his request to review the redacted information
when it was submitted to the court for in camera inspection. However, as his request could not be
2
I. CASE HISTORY
[¶2] The relevant facts are not in dispute. On or about October 30, 2013,
Doyle submitted a FOAA request to the Town seeking to inspect and copy the
July, August, and September 2013 cellular telephone bills of the School
Department’s former Superintendent. The Superintendent and other Falmouth
School Department employees are provided with school-issued cellular telephones,
paid for by the School Department. There is no rule or policy preventing
employees from using their school-issued cellular telephones for personal
purposes.
[¶3] In response to Doyle’s FOAA request, the former Superintendent
provided the Town with copies of her cellular telephone records for July, August,
and September 2013, redacting the information she considered nonpublic and
confidential, exempt from disclosure pursuant to the Act, or beyond the scope of
Doyle’s FOAA request. The Town then made copies of those redacted records
available to Doyle.
[¶4] Doyle appealed from the Town’s and School Department’s actions to
the Superior Court pursuant to 1 M.R.S. § 409(1). Doyle alleged that the Town
granted without disclosing the information that the School Department was entitled to withhold, there was
no error in the court’s denial of the request.
3
and the School Department failed to comply with his FOAA request, and that he
was entitled to receive unredacted copies of the cellular telephone records.
[¶5] The court directed the Town and School Department to submit
unredacted records for the court’s in camera review and provide a copy of all such
supporting papers to Doyle, “except for those that would disclose the records or
information or portions thereof that the [Town and School Department] contend
are not public records subject to disclosure.” The Town and School Department
complied with the court’s order and filed a memorandum of law outlining the legal
basis for each redaction, together with an affidavit by the former Superintendent, a
spreadsheet identifying the nature of the call for each telephone number that was
redacted, and the unredacted cellular telephone records for in camera review only.
Doyle was provided with the same bills and supporting documentation except with
the subject telephone numbers redacted.3 The redacted copies of the cellular
telephone records indicate the date, time, and duration of all calls placed or
received by the former Superintendent, as well as the total amount charged to the
School Department for the Superintendent’s use of the telephone.
[¶6] After full briefing by the parties regarding the legal bases for redaction,
the Superior Court entered judgment in favor of the Town and School Department.
3
In the course of preparing the filing, the School Department discovered that several telephone
numbers had originally been redacted in error. Thereafter, the School Department provided Doyle and
the court with corrected redacted copies.
4
The court concluded that (1) the cellular telephone numbers of School Department
employees, including the former Superintendent, are exempt from the definition of
“public records” pursuant to 1 M.R.S. § 402(3)(O); (2) records of personal
telephone calls—those made or received in connection with a school official’s
personal matters—are not public records pursuant to the Act; and (3) the telephone
numbers of Falmouth students’ parents are confidential pursuant to the federal
Family Education Rights and Privacy Act (FERPA) and are therefore exempt from
the definition of public records. See 20 U.S.C.A. § 1232g (West, Westlaw through
P.L. 113-185 approved 10-6-14); 20-A M.R.S. § 6001(1) (2014); 1 M.R.S.
§ 402(3)(A).
[¶7] Doyle filed this timely appeal pursuant to 14 M.R.S. § 1851 (2014),
M.R. Civ. P. 80B(n), and M.R. App. P. 2(b)(3).
II. LEGAL ANALYSIS
[¶8] Maine’s Freedom of Access Act establishes a general right of the
public to inspect and copy public records. 1 M.R.S. § 408-A. The term “public
records” is defined by the Act to include records that are in the “possession or
custody of an agency or public official of this [s]tate or any of its political
subdivisions” that have “been received or prepared for use in connection with the
transaction of public or governmental business or [that] contain[] information
relating to the transaction of public or governmental business.” 1 M.R.S. § 402(3).
5
The Act lists a number of exceptions to the definition of “public records.” See
1 M.R.S. § 402(3)(A)-(T). “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.” MaineToday Media, Inc. v. State, 2013 ME
100, ¶ 9, 82 A.3d 104.
[¶9] When a public record contains information that is not subject to
disclosure under FOAA, the information may be redacted to prevent disclosure.
See, e.g., Cyr v. Madawaska Sch. Dept., 2007 ME 28, ¶ 11, 916 A.2d 967; Wiggins
v. McDevitt, 473 A.2d 420, 424 (Me. 1984). Thus, redacting portions of cellular
telephone records that are exempt from disclosure pursuant to the FOAA is
permissible.
A. Personal Telephone Numbers of Public Employees
[¶10] The exceptions to the Act’s disclosure requirement are strictly
construed to promote the Act’s underlying policies and purposes. Moffett v. City of
Portland, 400 A.2d 340, 348 (Me. 1979); see 1 M.R.S. § 401. The Act exempts
from disclosure “personal contact information,” which is defined as a public
employee’s “home address, home telephone number . . . personal cellular
telephone number and personal pager.” 1 M.R.S. § 402(3)(O). To interpret the
scope of this exception, we look to the plain meaning of the statutory language to
give effect to the legislative intent. Hickson v. Vescom Corp., 2014 ME 27, ¶ 15,
6
87 A.3d 704. “If the plain meaning of the text does not resolve an interpretive
issue raised, we then consider the statute’s history, underlying policy, and other
extrinsic factors to ascertain legislative intent.” In re Wage Payment Litig.,
2000 ME 162, ¶ 4, 759 A.2d 217.
[¶11] In this case, the plain language of the Act does not establish whether a
“personal cellular telephone number” must be exclusively personal in nature or
whether a work-issued cellular telephone number that may be used for personal
purposes falls within the ambit of the exception. The legislative history of
1 M.R.S. § 402(3)(O), however, indicates that the exception for personal contact
information was enacted to protect the privacy rights of public employees. See
Final Report of the Committee to Study Compliance with Maine’s Freedom of
Access Laws 2-3 (Nov. 2004).
[¶12] Those in favor of enacting the exception urged that disclosing
personal information of public employees “does not contribute to the public’s
understanding of how its government operates,” but rather “reduces the privacy
rights of citizens who choose to work in public service.” Testimony of the Maine
Municipal Association In Support of LD 467 (122nd Legis. 2005). Testimony was
presented to the Joint Standing Committee on Judiciary demonstrating that many
victims of stalking are public employees and that “the privacy of personal contact
information is critical to maintain [the] safety [of] any person who is [a] victim of
7
domestic or sexual abuse and stalking.” Testimony of the Maine Coalition to End
Domestic Violence In Support of LD 467 (122nd Legis. 2005).
[¶13] Reviewing section 402(3)(O) with this legislative history, we
conclude that public employees’ work-issued cellular telephone numbers are
exempt from the disclosure requirements of the Act. The telephone numbers of
individual public employees (including the former Superintendent) were properly
redacted from the Town’s response to Doyle’s FOAA request, because they are
exempt from disclosure pursuant to the Act.
B. Telephone Numbers Relating to “Personal Use”
[¶14] Public records encompass those records “received or prepared for use
in connection with the transaction of public or governmental business or
contain[ing] information relating to the transaction of public or governmental
business.” 1 M.R.S. § 402(3). Although this is a “very broad, all-encompassing
definition,” which is “subject only to specific exceptions,” Wiggins, 473 A.2d at
422, its plain language demonstrates that records of personal telephone calls made
by the former Superintendent that were unrelated to the transaction of public or
government business do not fall within the definition.4 The Town and School
Department did not prohibit the School Department employees who received
4
According to the former Superintendent’s affidavit, this personal information included personal
phone calls made to personal health care providers, grandchildren’s daycare, family members, and
friends.
8
government-issued cellular telephones from using those phones in connection with
their personal matters. That the Town and School Department provided some
employees with cellular telephones does not convert all of the calls made on those
telephones into public records pursuant to the Act. Therefore, the court did not err
in allowing the Town and School Department to redact information concerning
calls, other than those related to the Town’s business, from the former
Superintendent’s cellular telephone bills.
C. Telephone Numbers of Falmouth Students’ Parents
[¶15] “Records that have been designated confidential by statute” are
exempt from the definition of public records pursuant to the Act. 1 M.R.S.
§ 402(3)(A). Pursuant to the federal Family Educational Rights and Privacy Act of
1974, incorporated into Maine law by 20-A M.R.S. § 6001(1), school departments
are prohibited from releasing any personally identifiable information contained in
educational records without a parent’s written consent. 20 U.S.C.A. § 1232g(b)(1).
A school is allowed to release “directory information,” which may include
telephone numbers, but only if it has given parents advance notice of the
information it intends to release. 20 U.S.C.A. §§ 1232g(a)(5), (b)(1).
[¶16] The Falmouth School Department has adopted a policy that does not
include telephone numbers within its directory information. Because the School
Department has not given advance notice to parents that it may release parents’ and
9
students’ telephone numbers, it is prohibited from doing so by federal and Maine
law. Accordingly, any records containing such information are among those that
have been made confidential by statute and were properly redacted as exempt from
the definition of pubic records pursuant to the Act.
The entry is:
Judgment affirmed.
On the briefs:
Michael A. Doyle, pro se appellant
Peter C. Felmly, Esq., and Reade E. Wilson, Esq., Drummond Woodsum,
Portland, for appellee Falmouth School Department
Mark V. Franco, Esq., Thompson & Bowie, LLP, Portland, for appellee
Town of Falmouth
Cumberland County Superior Court docket number CV-2014-17
FOR CLERK REFERENCE ONLY