Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-2019-39
03-02-2020
SUSAN HAWES, Plaintiff v. CUMBERLAND COUNTY SHERIFF'S OFFICE, et al., Defendants
Plaintiff-Pro Se Defendants-Michael Devine, Esq.
Plaintiff-Pro Se
Defendants-Michael Devine, Esq. STATE OF MAINE
CUMBERLAND, ss ORDER
After considering the issues raised at a scheduling conference held on February 27, 2020, attended by plaintiff Susan Hawes, who is representing herself, and Attorney Michael Devine for defendants, the court orders as follows:
1. The court understands that Ms. Hawes does not object to the dismissal of Lauren Hrubowchak as a defendant. If this is incorrect, Ms. Hawes shall so notify the court and counsel for defendants in writing on or before March 13, 2020. If no such notice is received, the complaint shall be dismissed as against Hrubowchak without further notice.
2. Ms. Hawes agreed that Count II of her complaint can be dismissed as the document sought has been provided. So ordered.
3. The Sheriff's Office contends that after the amended complaint was filed, it provided Ms. Hawes with the document or documents responsive to the request that is the subject of Count III (November 24, 2019 request for current jail roster ). Ms. Hawes disagrees that what she received is what she requested. The parties agree that Ms. Hawes does need to amend count III to pursue her claim for a jail roster. The Sheriff's Office, if it wishes to do so, shall have until March 13 to file an amended answer to count III.
4. Ms. Hawes informed the court at the conference that she has a witness who is prepared to testify as to the existence of certain binders responsive to the request that is the subject of count I of the amended complaint (November 17, 2019 request for overtime records for the month of July 2019). On or before March 16, 2020 Ms. Hawes shall submit an offer of proof, identifying the witness and setting forth the substance of the testimony the witness will provide. Although not required, the offer of proof may be in the form of an affidavit.
5. Counsel for the Sheriff's Office suggested at the conference that 16 M.R.S. § 807 may prevent the Sheriff's Office from confirming or denying the existence of the records sought by Ms. Hawes in count I. As the court suggested at the conference, this would appear to be a vastly overbroad invocation of 16 M.R.S § 807.
6. 16 M.R.S § 807 applies to confirmation of "intelligence or investigative record information." The issue of whether the contents of the overtime records sought by Ms. Hawes are exempt from disclosure as intelligence and investigative record information remains to be decided. But if the Sheriff's Office contends that the mere existence or non-existence of overtime records itself constitutes "intelligence or investigative record information," the Sheriff's office shall - on or before March 16, 2020 - submit a memorandum of law with any legal argument or authority supporting that contention along with any supporting affidavits. It bears emphasis that some or all of the overtime records sought in this case are documents that are identified in the collective bargaining contract.
7. The court believes that it is required to establish "a fair process for all of the parties to present information . . . [to] create a meaningful and sufficient record" on which the court can adjudicate the FOAA claims. Dubois v. Department of Agriculture, 2018 ME 68 ¶ 12, 185 A.3d 743 (emphasis added). In Dubois, the specific documents at issue were submitted for in camera review, but the court ordered the agency to prepare and provide to the plaintiffs an exceptions log itemizing the documents and the reasons those documents were redacted or withheld and to submit affidavits supporting the claim of exemption. Id. ¶ 4. Something similar, either through written submissions or at a short evidentiary hearing, shall likely be necessary in this case.
8. To the extent that the existence of records is disputed (e.g., whether overtime records are or were kept in binders or in some other form, and whether the document sought in count III of the amended complaint exists in the form that Ms. Hawes is requesting), this would appear to require a short evidentiary hearing.
9. Counsel for the Sherriff's office stated at the conference that the Sheriff's office may wish to offer testimony as well on issues other than the existence of responsive records and the exemptions claimed. On or before March 16, 2020 the Sheriff's office shall submit an offer of proof as to the proposed testimony, identifying the witness(as) and setting forth the substance of the testimony the witness(as) will provide. Although not required, the offer of proof may be in the form of an affidavit.
10. Counsel for defendants raised the possibility of taking a deposition of any witness identified by Ms. Hawes. At this time the court is not inclined to allow discovery, which appears unnecessary and will potentially delay the resolution of this action. Guided by Dubois v. Department of Agriculture, 2018 ME 68 ¶ 13, the court will deny any request for a depositions or other discovery unless the party seeking discovery first makes a showing that that there is good cause for such discovery.
11. Two additional legal issues have been raised: (1) The Sheriff's argument that since Ms. Hawes requested certain records in August 2019 and did not appeal from the denial of that request, she is barred from relitigating her November 17, 2019 request; and (2) the contention by Ms. Hawes that since the Sheriff's Office cited only 16 M.R.S. § 804(7) in denying her November 17, 2019 request, it may not now cite an additional exemption, 16 M.R.S. § 804(8), to support its position in this action. On or before March 23, 2020 Ms. Hawes and counsel for the Sheriff's office shall submit their legal arguments on those issues. The entry shall be:
In this connection it appears to the court that Ms. Hawes's August request and her November 17 request - although addressed to the same general issue - are not identical. --------
Procedural order entered. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: March 2, 2020
/s/_________
Thomas D. Warren
Justice, Superior Court