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Mainetoday Media, Inc. v. State

Superior Court of Maine, Cumberland

August 5, 2014

MAINETODAY MEDIA, INC., Plaintiff
v.
STATE OF MAINE, Defendant

ORDER

Thomas D. Warren, Justice, Superior Court.

Before the court is plaintiff MaineToday Media, Inc.'s appeal from the denial by the Maine Attorney General's Office of certain requests for records under the Freedom of Access law, 1 M.R.S. § § 408-A and 409.

The specific requests in question sought (1) the transcript of an E 911 call made by the wife of Stephen McKenney on April 12, 2014 and (2) any cruiser cam videos taken at the scene when law enforcement officers responded to the McKenneys' home at 2 Searsport Way in Windham in response to the E 911 call. The parties have stipulated that after law enforcement officers arrived at 2 Searsport Way, there was an armed confrontation outside the home and Stephen McKenney was fatally shot by a deputy sheriff.

The parties have also stipulated that the Attorney General's Office is conducting an investigation into the shooting pursuant to 5 M.R.S. § 200-A[1] and has obtained film footage from cruiser cameras and the audio recording of the E 911 call from which a transcript has been prepared.

Appeals under the Freedom of Access law are heard de novo. 1 M.R.S. § 409(1). On such an appeal the burden of establishing just cause for the denial of the request falls upon the governmental agency seeking to withhold the records in question. MaineToday Media v. State of Maine, 2013 ME 100 ¶ 9, 82 A.3d 104. The Freedom of Access law is liberally construed and any exceptions to disclosure axe to be strictly construed. Id.

In this case the parties have submitted the case upon certain stipulated facts and upon testimony and evidence offered at a hearing on May 30, 2014. At that hearing the Attorney General's office submitted the E 911 transcript and the cruiser cam videos for in camera review, and the parties thereafter submitted post-hearing memoranda.

The State bases its denial of the requested records on 1 M.R.S. § 402(3)(A), which exempts " records that have been designated as confidential by statute, " from the definition of public records that must be made available for inspection and copying under 1 M.R.S. § 408-A. The specific confidentiality statute relied upon by the State is 16 M.R.S. § 804, subsections (1) and (3).

Those statutory provisions state that with certain exceptions not relevant in this case, any record

that contains intelligence and investigative record information is confidential and may not be disseminated by a criminal justice agency to any person or public or private entity if there is a reasonable possibility that public release or inspection of the record would:
1. Interfere with criminal law enforcement proceedings. Interfere with law enforcement proceedings relating to crimes; [or] . . .
3. Constitute an invasion of privacy. Constitute an unwarranted invasion of personal privacy.

There is no dispute that the requested cruiser cam videos and the E 911 transcript contain intelligence and investigative record information as defined by 16 M.R.S. § 803(7). The issue in this case is whether the State has met its burden of demonstrating that there is a reasonable possibility that public release of the requested records would interfere with law enforcement proceedings or constitute an unwarranted invasion of privacy.

Interference with Law Enforcement Proceedings

With respect to the State's invocation of 16 M.R.S. § 804(1), this case turns on the degree of specificity by which the State is required to show that there is a reasonable possibility that the requested ...


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