DECISION ON FOAA APPEAL
Joyce A. Wheeler, Superior Court Justice.
This matter came before the court for hearing on December 1, 2015 on Michael Doyle's (hereinafter "Doyle") Freedom of Access Act Appeal (hereinafter "FOAA appeal") pursuant to 1 M.S.R. § 409. Doyle appeared pro se. Mark Franco, Esquire, represented the Town of Scarborough. Two of the matters that were before the court and left unresolved are addressed in this decision. First, the court will consider Doyle's FOAA appeal, asking the court to compel the Town to disclose certain emails. Second, the court will consider Cross Motions for Sanctions.
A. FOAA APPEAL
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his Freedom of Access Act appeal pursuant to 1 M.R.S. § 409 on March 31, 2014. Initially he challenged the fee the Town sought for its production of FOAA materials. On March 4, 2014, Doyle sought in his FOAA request in this case to inspect emails between Scarborough Police Chief Robert Moulton and Lori Bedor, Moulton and Cathy Chandler and Moulton and Linda Fowler. See page 4 of Def's Ex. 5. That request was sent to the Town Clerk who sought clarification of the scope of his request to which Doyle responded, "to the beginning of time." The Town Clerk sent on March 19, 2014 a bill to Doyle with an estimate of 93 billable hours and seeking for advance payment in the amount of $3, 260, based on an estimate provided by the Director of IT for the retrieval and copying of the documents. See Def's Ex. 2. This is the estimate that Doyle challenged in his FOAA appeal. He asked the court to reduce the estimate and order the production of the requested documents. In subsequent correspondence, the request was narrowed and the costs associated with the time period from 2012 forward were reduced to $570.
The Town's initial estimate included the retrieval of archived emails, as compared to live emails that are currently in the email box and easily retrievable. Retrieval of archival emails would require time, money, additional hardware and software and consequently quite costly. See Def's Ex. 1. There is no hardware to pull emails prior to 2007. The Town could purchase hardware to pull emails from 2007-2010. Emails since 2012 exist in a live environment and are readily available. After the request was narrowed, the Director of IT pulled the live emails. She pulled each email with the names Moulton, Chandler, Fowler and Bedor. She then printed only those emails between Moulton and these three individuals. This task took her a week of her time. Only emails between Moulton and Chandler existed. There were no emails between Moulton and Fowler or between Moulton and Bedor. The Town sent a $570 invoice to Doyle to copy 1, 137 pages of emails that the Town was able to recover. See Def's Ex. 4.
Doyle has not yet paid anything to the Town for the copying of the recovered emails. Nevertheless, the Town permitted Doyle access to the 1, 137 pages of emails about a week ago. Doyle spent six and one half hours inspecting the produced emails and did not request that any of these emails be copied.
At the hearing, Doyle learned that the Town Manager and the Town's attorney in this case reviewed the emails before Doyle's inspection and excluded more than 100 and less than 1, 000 emails based on FOAA exclusions. The Town offered no evidence regarding the excluded emails except to state that the emails were excluded under statutory exclusions. The Town did not identify on which exclusions it was relying. Consequently, Doyle asked that the court order the Town to produce the withheld documents to the court for its in camera review of the excluded emails. Thus the first issue in this case is whether the Town has met its burden to demonstrate the basis for the denial of those emails that the Town contends come within any of the statutory exceptions.
Although Doyle's appeal began as a claim that the cost of disclosure was tantamount to a denial, he now also claims first that he suspects that there are other emails that the Town has not made available to him and second that there are emails that the Town has not disclosed and that the Town claims are excluded under statutory exceptions.
The claim of incomplete disclosure is partially meritorious because the Town did not issue a written denial to Doyle's request and Doyle only learned at the hearing that the Town had screened out those emails that the Town Manager and Town's attorney believed were excepted under FOAA. Because a denial under section 409(1) can occur through silence or failure to act, Doyle has established that a denial by omission has occurred with respect to the withheld emails.
His claim that the Town's disclosure is incomplete because he believes there are other emails based upon information from undisclosed individuals has no merit. In the absence of any probative evidence of the existence of these emails, Doyle has not persuaded the court that a denial pursuant to section 409 of the FOAA has occurred with regard to these unknown emails.
The purpose of the FOAA is to open public proceedings and require public actions and records are available to the public. Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶13, 769 A.2d 857. The FOAA "must be liberally construed and applied to promote its underlying purposes and policies contained in the declaration of legislative intent." Med. Mut. Ins. Co. v. Bureau of Ins., 2005 ME 12, ¶5, 866 A.2d 117 (quoting 1 M.R.S. § 401 (1989)). In contrast, exceptions to FOAA are strictly construed. Springfield Terminal Ry. Co. v. Dep't of Transp., 2000 ME 126, ¶ 8, 754 A.2d 353. "The party seeking the denial of a request to inspect and copy a record pursuant to section 408(1) has the burden to demonstrate the basis for the denial. Med. Mut. Ins. Co. v. Bureau of Ins., 2005 ME 12, ¶ 6, 866 A.2d 117. The court must determine whether the refusal, denial or failure was not for just and proper cause. 1 M.R.S. § 409(1).
A public record can include an email. An agency or official must provide access to electronically stored public records, including e-mails, as a printed document. Any record, regardless of the form in which it is maintained by an agency or official, can be a public record. As with any record, if the e-mail is "in the possession or custody of an agency or public official of this State or any of its political subdivisions .. . 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 ...