AUGUSTA — Maine’s highest court has for the first time weighed in on what constitutes bad faith under Maine’s public records law.

In a decision announced Tuesday, the Maine Supreme Judicial Court affirmed the ruling of a lower court that the behavior of the Maine County Commissioners Association’s self-funded Risk Management Pool in failing to respond to requests for information can be viewed only as “deceptive and abusive of the of (Freedom of Access Act) process.”

The Human Rights Defense Center, a nonprofit organization that advocates for people held in U.S. detention centers, had sought information about a payment to a Black man who alleged he had been assaulted by guards at the Kennebec County Correctional Facility while awaiting trial.

The payment was part of a settlement in a federal excessive force lawsuit  filed by Jonathan Afanador, who accused jail guards of beating him, pepper-spraying him and using a racial slur.

The Risk Management Pool is a group that insures Maine’s county governments, including Kennebec County, and is responsible for covering the costs of legal settlements.

The records request and subsequent lawsuit arose from a discrepancy in information about the amount of a payment made to Afanador following the settlement.

When the lawsuit was settled in 2021, Malcolm Ulmer, who oversees the Risk Pool, said the settlement amount was $30,000, after those associated with the case said they could not talk about the settlement terms.

When the Human Rights Defense Center pursued further information via a public records request seeking “any documents showing payments disbursed” from the Risk Pool to any party to the lawsuit, it received a document that stated only that the case was settled for “one dollar and other valuable consideration.” When the defense center pressed for details, it was provided with a copy of a Portland Press Herald story quoting Ulmer saying the case had been settled for $30,000. He provided no other documentation of that amount.

The appeal of that action resulted in a hearing before Maine Superior Court Justice Daniel Billings. In December, Billings ordered the risk management pool to pay attorneys’ fees and release the wrongfully withheld documents.

In his decision and order, Billings wrote that in denying the initial public records request by the Human Rights Defense Center, the Risk Pool group acted in “bad faith” and it had adopted “absurd, blatantly untrue and inconsistent legal positions in this litigation to avoid a ruling on the merits.”

Ulmer “knew that he had responsive documents, and he decided to prevaricate and obfuscate rather than disclose them,” Billings wrote.

Because of the determination of bad faith, the Risk Pool was also ordered to pay reasonable attorney’s fees for the litigation of this case that began more than two years ago, a rare outcome in a Freedom of Access Act case.

Following that decision, the risk pool appealed the matter to the state’s Law Court.

In its own decision, the Law Court found that the Risk Pool failed to provide the information sought and mischaracterized the nature of the request, ignored subsequent attempts to clarify what the defense center was seeking and deliberately withheld access to documents that should have been disclosed.

“As we learned at oral argument,” the decision states, “although the court ordered the Risk Pool to provide the (defense center) with the responsive documents, it still has not done so because it continues to maintain they were not requested. We agree with the court that ‘the Risk Pool’s behavior was so deceptive and abusive of the FOAA process’ that an award of attorney fees based on bad faith is warranted.”

To date, the amount due in attorney fees has not yet been calculated.

Jeffrey Edwards, an attorney with Preti Flaherty representing the risk pool, didn’t immediately respond to a request for comment Tuesday.

The ACLU of Maine, which represented the defense center, said the documents in the case are public.

“There is a strong public interest in understanding the use of taxpayer dollars and settlements stemming from allegations of misconduct in Maine jails. These documents should have been released in 2021 when they were requested,” said Anahita Sotoohi with the ACLU of Maine. “Maine’s Freedom of Access Act has been the law since 1959, but this is the first time that bad faith has been found in a FOAA case and that attorney fees have been awarded. Establishing this standard is a significant victory for transparency and the ability of Maine’s people to hold the government accountable. ”

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