There are several recent noteworthy developments regarding the question of public access to law enforcement disciplinary records. The state statutory framework provides that investigatory documents relating to police misconduct are confidential unless there is final discipline imposed. The statutory provision applying to municipal police officers is 30-A MRSA section 2702; the counterpart applying to state law enforcement officers is found in 5 MRSA section 7070. Under each provision, if the discipline is overturned at any level, including by an arbitrator, no documents relating to the matter are public. However, if any level of final discipline is upheld, then the “final written decision” is no longer confidential and would be subject to public disclosure.

Representing law enforcement officers, we have typically construed these provisions to mean that if there is a final disciplinary letter stating that a particular disciplinary sanction was imposed against Officer X for violating a particular policy, that only that document itself would be subject to FOAA. Over the last year, there have been numerous FOAA requests to the Maine State Police seeking all disciplinary records of its employees. Litigation ensued and in a decision dated May 26, 2022, Justice William Anderson of the Maine Superior Court issued a noteworthy decision. See Bangor Publishing Co. v. State of Maine, Penobscot Docket number CV – 2021 – 00042. Justice Anderson concluded that the aforementioned statutory section as it applied to the Maine State Police should not be narrowly construed and rather should be broadly construed to comply with the intent behind the FOAA statute. Specifically, he held that settlement agreements which spoke to the allegations of misconduct, even though there was a separate letter imposing final discipline, should also be deemed non-confidential under the statute. This decision was not appealed to the Maine Supreme Judicial Court. Our take away from this holding is that although the investigatory file might not be a public record, that when there is final discipline all of the documents containing the details of the settlement between the employer and the employee will be subject to FOAA, regardless of what the documents are called.

There is also a recent Superior Court decision regarding a related area of law. This case involves the South Portland Police Unions. Under the South Portland police collective bargaining agreements, written reprimands are to be removed from the personnel file after one year. A request was made under FOAA for disciplinary documents over a certain time window. The unions took the position that if the documents had been removed from the personnel file pursuant to the collective bargaining agreement, that they were not subject to FOAA and that the City of South Portland should have destroyed the documents. The basis for the union’s position was found in Harding v. Wal-Mart Stores, Inc. 2001 ME 13. In that case, the Law Court held that all written materials in the possession of an employer related to an employee’s performance are part of the employee’s personnel file. The Union argued that in light of this holding that the contractual language requiring removal from the personnel file would thus mean that the City could not hold onto those records in any capacity. Justice John O’Neil Jr. of the Cumberland County Superior Court held that the holding in Harding applied only to that section of Maine law giving the employee access to their personnel file. (See order dated June 24, 2022 in Docket number CV – 21 – 0216.) Thus, he concluded that the language in the collective bargaining agreements requiring removal from the personnel file did not require destruction. He also pointed out that the Legislature had given authority to the State Archivist to promulgate rules and regulations regarding the destruction of public records. See 5 MRSA section 91. The regulations promulgated by the State Archivist propose a 60-year retention, however, they also recognized that records can be destroyed sooner if that is mandated by a collective bargaining agreement. The import of this decision to the unions is that the collective bargaining agreement should contain destruction language if that is the intent of the parties. This decision was initially appealed to the Law Court, however, the appeal was dismissed.

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Daniel R. Felkel

Jonathan M. Goodman

William K. McKinley