DECISION ON APPEAL
Donald H. Marden, Superior Court Justice.
In 2013, a police officer with the Hallowell Police Department reported a sexual assault which she alleged was committed by the Chief of the Hallowell Police Department. As a result, and in accordance with standard procedure, an investigation was conducted by the Maine State Police. This investigation was completed in October of 2013. In spite of repeated demands by the Plaintiff, the Maine State Police have refused to disclose the contents of their investigation. The District Attorney has not initiated prosecution of the accused based upon the officer's complaint.
Counsel for both the accusing officer and the accused Chief have made a number of public statements and disclosures with regard to the circumstances. The disclosures have appeared in the newspapers which are represented by the Plaintiff. The Plaintiff, which represents the Kennebec Journal, Portland Press Herald, and Morning Sentinel, appeals the investigative and prosecuting agency's refusal to publicly disclose, filed pursuant to M.R. Civ. P. 80C, and 1 M.R.S. § 409(1).
Title 1 M.R.S. § § 401-414 is the Freedom of Access Act (FOAA) in Maine law. This requires that records of public proceedings be open to public inspection. It requires that the body of law under the FOAA be liberally construed " to promote its underlying purposes and policies as contained in the declaration of legislative intent." 1 M.R.S. § 401. It states that " public records" means any written or electronic data in the possession or custody of an agency or public official that has been received or prepared for use in connection with the transaction of public or governmental business except records that have been designated confidential by statute. 1 M.R.S. § 402(3). These records may also include public criminal history records as defined in 16 M.R.S. § 703(8). The public has a right to inspect and copy any public records during reasonable office hours. A refusal by an agency having custody and control of a public record must be by written notice of denial, stating the reason for the denial. 1 M.R.S. § 408-A. Any person aggrieved by a refusal or denial to inspect the public records under section 408-A may appeal the refusal to the Superior Court, which shall hold a de novo proceeding. 1 M.R.S. § 409(1).
Dissemination of criminal history record information by a Maine criminal justice agency is governed by the Criminal History Record Information Act, 16 M.R.S. § § 701-710. It differentiates between public criminal history record information and confidential criminal history record information. 1 M.R.S. § 702. Specifically, confidential criminal history record information includes information disclosing that the prosecutor has elected not to initiate or approve criminal proceedings. 16 M.R.S. § 703(2)(C). Criminal history record information includes such information as arrests, bail, formal criminal charges, indictments, and the like, but does not include " intelligence and investigative record information as defined in § 803." 16 M.R.S. § 703(3). Confidential criminal history record information may only be disseminated through a specific list of persons and agencies not applicable in the present case. 16 M.R.S. § 705.
The Intelligence and Investigative Record Information Act, 16 M.R.S. § § 801-809, defines " intelligence and investigative record information" as that information " collected by or prepared by or at the direction of a criminal justice agency or kept in the custody of a criminal justice agency while performing the administration of criminal justice[.]" 16 M.R.S. § 803(7). Among other things, it includes information of record concerning investigative techniques and procedures. It does not include criminal history record information as defined in 16 M.R.S. § 703(3). Id. Other than with specific exception, a record that contains intelligence and investigative record information is confidential and may not be disseminated by a criminal justice agency to any person if there is a reasonable possibility public release or inspection of the record will interfere with law enforcement proceedings or constitute an unwarranted invasion of personal privacy. 16 M.R.S. § 804(1), (3). The exceptions are listed in 16 M.R.S. § § 805 and 806, but subject to " reasonable limitations imposed by a Maine criminal justice agency to protect against the harms described in section 804 . . . ." 16 M.R.S. § 806. It is a criminal offense for a person to knowingly and intentionally unlawfully disseminate confidential intelligence and investigative record information. 16 M.R.S. § 809.
Plaintiff asserts that the investigative information in the possession of the Maine State Police is a " public record" pursuant to 1 M.R.S. § 402(3). As such, they argue that the public has a right to inspect and copy the public records pursuant to 1 M.R.S. § 408-A, as the statute should be liberally construed by 1 M.R.S. § 401. Accordingly, Plaintiff asks the court to determine that the refusal of the Maine State Police to disclose the results of its investigation is not for just and proper cause and enter an order of disclosure, if necessary with appropriate redaction.
The Plaintiff argues that the amount of information regarding the details of the incident in question as disclosed by public statements of counsel for both the officer and the Chief has removed any expectation of privacy on the part of either party and therefore release of the investigative information would not constitute an unwarranted invasion of personal privacy. Further, if there is such an invasion, the public interest in disclosure of such information outweighs any privacy concerns that might remain after the public statements. This is particularly important in light of the fact that the accused is the Chief of Police of a Maine city, and therefore a person occupying a highly responsible position. The fact that position is Chief of a law enforcement agency enhances the public interest. The Plaintiff notes the necessity of transparency in government and asserts the importance of reviewability by the public to address any issues of the diligence of the Maine State Police investigation or the operation of the Hallowell Police Department.
The Defendant, on the other hand, invokes the public policy as expressed in a large number of statutory provisions which relate to the protection and privacy interest of persons involved in criminal investigations, particularly those alleging matters of a sexual nature. To that end, the State argues that the release of the information in question would clearly be unwarranted in light of the privacy interests that remain in both the accuser and the accused. It argues that the investigation report is not a public record but instead is confidential criminal history record information. Further, the State argues that the dissemination of the information would interfere with the operations of law enforcement in terms of investigative technique and relationship with alleged victims of sexual assault.
Pursuant to its request, the court authorized the filing of an amicus brief by the Maine Coalition Against Sexual Assault who cited relevant statistics with respect to the experience in the State of Maine of sexual violence. The group notes, " victim concerns with confidentiality and privacy remain the most significant reasons why sexual assault crimes go unreported." Citing Jessica Mindlin & Liani Jean Heh Reeves, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions , The Center for Law & Pub. Policy on Sexual Violence, Nat'l Crime Victim Law Inst. (2005). " [S]hame, fear and deep-seated cultural notions that the woman is somehow to blame" can be compounded when victims lack control over how and when information concerning the assault becomes public. See Rape and Sexual Assault, http://www.pbs.org/kued/nosafeplace/studyg/rape.html (last visited Sept. 12, 2014). The Coalition asks the court to adopt a victim-centered approach when balancing the public interest in the disclosure of intelligence and investigation records against the victim's right to privacy.
All parties cite to Blethen Maine Newspapers, Inc. v. State , 2005 ME 56, 871 A.2d 523. In that case, the plaintiff asked the court to require the disclosure of investigative records held by the office of the Maine Attorney General relating to allegations of sexual abuse by eighteen deceased Roman Catholic priests. Id. at ¶ 2. Upon refusal, Blethen sought judicial review of the Attorney General's decision. The Superior Court vacated the Attorney General's denial and ordered full disclosure. Id. The Law Court affirmed the court's judgment to the extent that it ordered the disclosure of the records but concluded that the court should have also ordered the records redacted so as to eliminate names and other identifying information of the living persons cited in the record. Id. The Court noted the exceptions of disclosure of intelligence and investigative information under a previous version of the statute (15 M.R.S. § 614(1)). Id. at ¶ 12. It made note of the eleven exceptions, including
(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.
Id. The Court noted that the Superior Court had employed a balancing test developed by the United States Supreme Court considering the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, privacy exceptions. Id. at ¶ 14. It noted that " the disclosure of investigative records is not permitted if the invasion of personal privacy is determined to be unwarranted when weighed against the identified public interest that will be served by disclosure." Id. The Court then went on to examine the personal privacy interests of the alleged victims, witnesses, and deceased priests in maintaining the confidentiality of the records sought by Blethen, the public interest supporting disclosure of the records, and the balancing of the private and public interests. See id . The Court noted that the Superior Court had found the privacy interest of the victims, witnesses, and priests had been extinguished by prior public disclosures, the manner in which the information came into the possession of the Attorney General, and the death of the priests who were subject to the allegations. Id. at ¶ 16.
Noting the requirements of a Federal decision, that the agency requesting disclosure of such investigative information " must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred, " Id. at ¶ 30 (citing National Archives and Records Administration v. Favish , 541 U.S. 157, 124 S.Ct. 1570 (2004)), the decision in the Blethen Court rejected the Favish principle, indicating that " FOAA's central purpose of ensuring the public's right to hold the government accountable would be unnecessarily burdened if we adopted Favish's evidentiary requirement for purposes of a case such as this, involving a request for written investigative records concerning events that occurred two or more decades ago." Blethen , 2005 ME 56, ¶ 32, 871 A.2d 523. Accordingly, Plaintiff argues that Favish has been rejected by the Court as precedent in this State which requires this Superior Court to honor the arguments of its petition. On the other hand, the Defendant specifically notes that four judges on the Maine Supreme Judicial Court concluded that Favish was a necessary part of the Superior Court's responsibility, through the concurrence of the Chief ...