Three months after Maine law enforcement agencies received numerous fake calls reporting shots fired at high schools around the state, officials are still refusing to release transcripts of the calls.

In response to records requests by the Kennebec Journal, federal and state officials are also refusing to explain why they are denying access to the transcripts, other than claiming that releasing the records would compromise an ongoing investigation.

That decision has drawn criticism from First Amendment advocates across New England who say such information is important to understanding the official response. Armed police were deployed to high schools from Sanford to Fort Fairfield as thousands of students and teachers sheltered in classrooms and cafeterias in fear for their lives.

Maine State Police initially oversaw the statewide investigation and has jurisdiction over several of the transcripts, including the threat to Gardiner Area High School. Paul Cavanaugh, attorney for the department, said the denial – even of redacted copies – follows written orders from both the Maine Attorney General’s Office and the FBI, which is now leading the investigation.

The agencies also will not provide redacted copies of their letters instructing Cavanaugh not to release the transcripts, saying they would also jeopardize the investigation.

The blanket refusal reignites ongoing concerns about the lack of transparency around police investigations in Maine. And public access advocates warn that the decision – one of the first sweeping records denials during Cavanaugh’s tenure with the public safety department – could set a dangerous precedent.

WHAT HAPPENED

On Nov. 15, law enforcement agencies across the state received fake calls reporting shots fired at high schools in Gardiner, Winslow, Portland, Wiscasset, Ellsworth, Sanford, Brunswick, Fort Fairfield, Houlton and Rockland.

Some districts called the so-called swatting incidents acts of terrorism.

The Kennebec Journal requested transcripts of the 911 hoax call in Gardiner as well as calls from students, teachers and others that could have provided insight into the panic and distress it caused and law enforcement’s response.

The hoax tested law enforcement’s capacity – at both urban and rural schools – to respond to multiple simultaneous school shootings. In Aroostook County, for example, a tactical unit like the one activated in Sanford is not readily available if a shooting takes place, said Timothy DeLuca, Houlton’s police chief.

Maine is among 33 states that have not had a mass school shooting since the 1980s. The state does not require schools to participate in active shooter training, but some districts have done so.

The release of 911 transcripts following tragedies such as the massacre at Robb Elementary School in Uvalde, Texas, have allowed communities to hold public safety officials accountable for their response and identify needed improvements.

Thom Harnett, a former Gardiner mayor who chaired the Right to Know Advisory Committee as a state representative, said public documents that can shed light on such situations should be released when requested. That committee provides guidance on Maine’s Freedom of Access laws, recommends policy changes, and educates state agencies on best practices when it comes to public access.

Asked whether he agrees with Cavanaugh’s decision to withhold information about the November hoax calls without explanation, Harnett said he thought Cavanaugh is doing what “he thinks is best.” Harnett said his general concern relates to “the premise that all public records are public unless confidential.”

“If the state or municipalities just say it’s ‘confidential’ and (don’t explain why) it could possibly lead to an increase in litigation,” Harnett said. “People … will have no choice but to follow (with) a lawsuit if they can’t get any additional information.”

‘PRO-SECRECY POSITION’

Authorities have been tight-lipped about developments in the November incidents. No criminal complaints have been issued, and no arrests have been made.

Kristin Setera, a spokesperson for the FBI’s Boston bureau, would not say whether the agency has identified any suspects, or if the threats originated in Maine or elsewhere. She also would not say whether the threats were related to similar hoax calls in at least 34 other states, one on Feb. 22 in Colorado.

Several local police departments did shed some light on what happened that day. The Kennebec Journal’s attorney, Sig Schutz, said this makes it difficult to understand how releasing the transcripts could harm the investigation.

The Gardiner Police Department said its hoax caller told dispatchers five students had been shot in a specific wing of the high school. Winslow officials said the person who called them posed as a teacher. Sanford police said its call came from an internet phone number using Voice Over Internet Protocol, software that allows people to make calls over their personal computer.

Communications centers and police said at least five were 911 hoax calls fielded by dispatchers, while at least three were direct dialed to local departments’ non-recorded administrative lines.

The Department of Public Safety initially confirmed it had a recording of the 911 call in Gardiner and “can make a transcript,” but Cavanaugh said it would have to be reviewed “to see what information should be redacted.” Then the agency reversed course and said the entire transcript was confidential under Maine’s Intelligence and Investigative Record Information Act.

The Department of Public Safety oversees the communications center that answers 911 calls made in Gardiner, but ithe agency would not even check on whether it had received calls from within the high school.

“In an effort at full disclosure, I have not asked staff to scour our records to see if we have such records as I concluded they would not be provided. I am assuming there must have been such calls, but I cannot confirm there actually were (nor can I confirm there were not),” Cavanaugh wrote on Dec. 1.

Schutz, the Kennebec Journal’s attorney, called Cavanaugh’s stance “an extremely aggressive pro-secrecy position, which is very likely unlawful.”

At one point, Cavanaugh also said he could have denied the request based on how quickly it was made. Because the Kennebec Journal made the request “less than 24 hours after the events in question” and state law “does not require an agency to create records that do not exist,” he wrote in a Dec. 15 email that he “could have simply replied that we had no records responsive” to the request.

He said he opted not do that “since I am new here and hoping for a cordial, professional (even good) working relationship with the reporters” making public records requests. Cavanaugh began serving as the state police attorney in August 2022 and was previously an assistant district attorney in Kennebec and Somerset counties.

While Maine’s Freedom of Access Act generally does not require agencies to create records that do not already exist, legislators in 1997 developed a specific exemption for 911 transcripts, requiring them to be created on request while largely shielding the audio recordings. The Department of Public Safety has an order form for such transcripts on its website. 

“A request for a 911 transcript cannot be denied on the basis that no transcript exists,” Schutz said. “The request for a transcript was entirely proper, whether made the minute after the call, the next day or at any time.”

PUSHBACK DESPITE PRECEDENT 

The Maine Supreme Judicial Court ruled unanimously in 2013 that the state cannot withhold 911 transcripts, regardless of the status of an investigation, without describing the specific harm the release would cause.

The transcript released because of that decision shed light on law enforcement’s response to the killing of two teenagers in Biddeford and led to federal civil rights and wrongful death lawsuits against the city’s police department.

When the Kennebec Journal pressed Cavanaugh to provide specific reasons for denying the Gardiner hoax transcript, Cavanaugh wrote on Feb. 9 that “releasing transcripts, redacted or otherwise … would prematurely reveal the scope, nature and direction of the government’s case which could afford the subject the opportunity to destroy evidence or change his/her modus operandi. This would impede the agency’s ability to further investigate, locate and apprehend the suspect.”

At the advice of both the FBI and the Maine Attorney General’s Office, he said, no part of the documents would be shared.

“The email (from FBI spokesperson Setera) asking to not share the transcript includes the reasons they don’t want it shared, so I will not provide a copy of that, or the harm will not be avoided,” Cavanaugh wrote.

The Kennebec Journal on Feb. 13 made a Freedom of Information Act request to the FBI for its email to Cavanaugh explaining why the requested documents should not be shared, and it was denied on Feb. 22. The FBI wrote that an email to a “third party individual” could involve “an unwarranted invasion of personal privacy,” and the agency’s standard response to such requests “should not be taken to mean that records do, or do not, exist.”

Every other request for 911 transcripts from regional communications centers not overseen by the state Department of Public Safety was also rejected because the transcripts dealt with an “active investigation.”

Brenda Kielty, the state’s public access ombudsman, said Cavanaugh’s initial denial “raises concerns, and I would very much like to talk with Paul about his thinking on this.” She later said she asked Cavanaugh to reconsider his response but would not elaborate on her concerns.

ADVOCATES REACT  

Daniel Medwed, a professor at Northeastern University’s law school and School of Criminology & Criminal Justice, called the responses “(par) for the law enforcement course.”

“These agencies often seem to try to evade public record disclosure through a web of hyper-technical procedural arguments plus the standard possible ‘interference with ongoing investigation’ policy claims,” he wrote in an email.

But these concerns “can and should be resolved simply through redacting of any identifiable information,” he said, because information in the 911 hoax call transcripts is “a matter of public concern.” Even the number of such calls can provide crucial insights, he said.

Maine law enforcement has released such information during ongoing investigations before. For example, the Department of Public Safety released the 911 transcript reporting the 2011 disappearance of Ayla Reynolds, a Waterville 20-month-old, who was never found. Personal details in the call by her father, Justin DiPietro, were redacted in line with Maine’s access laws, but the rest was made public even though the case remains open a decade later.

Justin Silverman, attorney and director of the New England First Amendment Coalition, said the denial of the hoax call transcripts “violates FOAA” and that not everything on a police record or 911 transcript is confidential. Details such as time the call was made or where it was received would not jeopardize an investigation.

“This information should be released,” said Silverman. “You can’t withhold an entire document because it would be redacted. Redact what you can under the law and release everything else.”

The FBI and the Attorney General’s Office declined to comment for this story.

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