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Bond v. Town of Windham

Superior Court of Maine, Cumberland

March 26, 2018

CHRISTOPHER A. BOND, Petitioner
v.
TOWN OF WINDHAM, Respondent

          DECISION AND ORDER

          Nancy Mills Justice.

         Before the court is petitioner Christopher Bond's appeal of the respondent Town of Windham's denial of his request to inspect government records pursuant to the Maine Freedom of Access Act and his motion for trial of the facts. 1 M.R.S. §§ 400-414 (2017); M.R. Civ. P. 80B(a) & (d). The court elects to decide the appeal based on the party's submissions. See 1 M.R.S § 409(1) (2016); Dubois v. Dep't of Envtl. Prot., 2017 ME 224, ¶ 10, 174 A.3d 314. For the following reasons, petitioner's appeal is granted-in-part and denied-in-part and the motion for trial of the facts is denied.

         A. Factual Background

         Petitioner is an individual who owns real property in the Town of Windham. (Pet.'s Compl. ¶ 3.) In March 2016, the Town of Windham filed a land use complaint in the District Court and claimed that petitioner had improperly installed a wood stove in a storage structure on his property. (Resp.'s Statement of Position at 2); Town of Windham v. Christopher A. Bond. No. CV-16-94, 2016 Me. Super. LEXIS 108, at *1 (Me. Dist. Ct., Portland, July 13, 2016). On July 13, 2016, the judge of the District Court issued a judgment ordering petitioner to remove the wood stove and to pay a $300 civil penalty. Bond. 2016 Me. Super. LEXIS 108, at *9. On May 9, 2017, the Law Court issued a memorandum of decision affirming the judgment of the District Court. Town of Windham v. Christopher A. Bond. Mem-17-46 (May 9, 2017).

         On September 20, 2016, petitioner emailed Kevin Haskell, the respondent's attorney, and made a "FOAA request to see all of respondent's Public Records that in any way relate to me or my property located on Libby Hill Road." (Resp.'s Ex. A.) On February 8, 2017, respondent provided petitioner with a USB drive containing some of the requested records. (Resp.'s Ex. C.) Respondent indicated to petitioner that there were an additional 89 documents[1] that it did not provide due to confidentiality. (Resp.'s Exs. C, D.) On December 8, 2017, respondent wrote to petitioner and stated that he was not in compliance with the order of the District Court. (Resp.'s Ex. E.) On December 11, 2017, petitioner submitted a written request to respondent and sought access to the records that were excluded from respondent's February 8, 2017 production of records. (Pet.'s Ex. 2.) On December 15, 2017, respondent declined to produce the requested records based on the attorney-client privilege. (Pet.'s Exs. 3, 4.)

         On January 16, 2018, petitioner filed a complaint in the Superior Court and appealed respondent's denial of his request for records. 1 M.R.S. § 409(1) (2017). Respondent filed a statement of position on January 23, 2018. On February 6, 2018, the court ordered respondent to file under seal the 89 withheld documents requested by petitioner. Respondent filed these documents on February 26, 2018 and the court has reviewed them in camera.

         In the motion for trial of the facts, petitioner proposes a trial of four facts related to whether he has complied with the order of the District Court in the enforcement action. See Bond. 2016 Me. Super. LEXIS 108, at *9; Bond. Mem-17-46; (Pet.'s Mot. Trial of Facts 4-6.)

         B. Standard of Review

         "Except as otherwise provided by statute, a person has the right to inspect and copy any public record ..." 1 M.R.S. § 408-A (2017). The Freedom of Access Act broadly defines "public records" as:

Any written, printed or graphic matter ... that 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 of public or governmental business ....

Id. § 402(3) (2017). Public records do not include "records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding." Id. § 402(3)(B).

         When a party appeals the denial of a request for documents under the Freedom of Access Act, the burden is on the agency or political subdivision "to establish just and proper cause for the denial." 1 M.R.S. § 409(1) (2017); Town of Burlington v. Hosp. Admin. Dist. No. 1. 2001 ME 59, ¶ 13, 769 A.2d 857. The Freedom of Access Act is to be liberally construed and applied and courts must interpret strictly any statutory exceptions to the act's requirements. 1 M.R.S. § 401 (2017); Springfield Terminal Ry. Co. v. DOT. 2000 ME 126, ¶ 8, 754 A.2d 353. Construction of the provisions of the act is an issue of law that is reviewed de novo. Town of Burlington. 2001 ME59, ¶ 12, 769A.2d857.

         C. Analysis

         1. Maine ...


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