CHRISTOPHER A. BOND, Petitioner
TOWN OF WINDHAM, Respondent
DECISION AND ORDER
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.
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).
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 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.)
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.
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.)
Standard of Review
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).
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.