A state judge in Bangor will decide soon whether the Maine State Police must turn over more disciplinary records and unmask redacted information in a freedom of access lawsuit brought by the state’s two largest newspapers.

The Portland Press Herald and Bangor Daily News joined forces to sue the Maine State Police last year for withholding information about misconduct by troopers that resulted in discipline. While Maine law makes most employee records confidential, records of final discipline are public.

State police redacted portions of the final disciplinary decisions, asserting an interpretation of state law that permits the removal of confidential information from a record otherwise deemed public under state law.

If a public employee’s medical diagnosis is revealed in a disciplinary record, for example, the state would shield that information from disclosure.

Penobscot Superior Court Justice William R. Anderson, who heard oral arguments in the case Wednesday, said he expects to make a ruling soon.

The state police refused to cite specific exemptions for each redaction, arguing that to do so would, in effect, reveal the nature of the underlying information, rendering the redaction meaningless.

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The newspapers published a three-day series revealing the nature of misconduct in the ranks of the state police based on the records the police provided. Reporting showed a secretive process, in which records about the misconduct are only briefly available publicly before they’re destroyed. In some cases, state police redacted what appears to be the substantive description of what an officer did to warrant punishment. The reporting and the lawsuit were supported by the Pulitzer Center and the the Yale Law School Media and Information Access Clinic.

The newspapers asked Anderson to order the state police to unmask the redactions, unseal an affidavit submitted to the court explaining the redactions and perform a second, more thorough search for discipline records not previously turned over.

While a state trooper union contract stipulates that some disciplinary information may be removed from a trooper’s personnel file under certain circumstances, it does not require that the record be destroyed – and in some cases, troopers can opt to have a removed disciplinary record restored.

But Assistant Attorney General Kelly Morrell said records removed from personnel files under contract provisions are often destroyed.

“We don’t dispute that the agreement says ‘remove’ and not ‘destroy,’ ” Morrell said. “But the spirit and the intent of the provision is to allow officers to repair their disciplinary records.”

Morrell said some legal agreements between troopers and the state police served as records of final discipline though the text of the agreements refers to separate discipline documents – leading the newspapers to believe that information was withheld when those cited documents never existed. Those agreements are written from template documents, Morrell said, and sometimes mistakes happen.

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“We represent that we did not withhold responsive documents,” Morrell said.

The newspapers argued that stating the category of exemption does not necessarily reveal its actual content – and that in federal freedom of access cases, the government routinely itemizes why each word, phrase or sentence is withheld, without compromising privacy of public employees or revealing sensitive information deemed confidential by law.

“If the thing that’s being redacted is just a colleague saying so-and-so should get evaluated for such and such condition, or perhaps discipline requiring that someone undertake a substance abuse evaluation or a drunk driving course or something like that, an evaluation doesn’t actually mean the person actually has that condition,” said Alasdair Phillips-Robins, a student at Yale Law School who assisted in the lawsuit. “This isn’t about attacking the state police or their integrity. It’s exactly the opposite. It’s about having the public understand how the police operate and how they police themselves.”

Zachary Heiden, legal director for the American Civil Liberties Union of Maine, which filed a friend-of-the-court brief in support of disclosing the records, said the records at issue are of critical importance to reveal the internal functioning of a public agency with enormous power. Heiden said the court plays an important role ensuring that government agencies in Maine do not abuse record exemptions simply to protect their images.

“What we’ve seen time and time again is government agencies and offices withholding or redacting information not because it’s subject to a statutory exemption but because it’s potentially embarrassing to public employees or public agencies. In looking at these cases, beyond simply applying the law, we want to have the court be aware of that phenomenon.”

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