Opinion
AP-2021-33
07-14-2022
PATRICK H. GORDON, Appellant v. JUSTIN W. ANDRUS and THE MAINE COMMISSION ON INDIGENT LEGAL SERVICES, Appellees
DECISION AND ORDER
William R. Stokes Justice, Superior Court
The matter before the court is an appeal pursuant to 1 M.R.S. § 409 (Maine Freedom of Access Act - FOAA) from the decision of the Maine Commission on Indigent Legal Services (MCILS) and its Executive Director, Justin Andrus, withholding certain requested documents and redacting others.
On November 18, 2021, the Plaintiff filed a "Petition for Review of Agency Failure to Act," purporting to be brought pursuant to M.R.Civ.P. SOB and 5 M.R.S. § 11001 (Maine Administrative Procedure Act - MAPA), and a "Complaint & Petition for Review of Denial of Access to Public Records" in accordance with FOAA. In an Order dated March 29, 2022, the court dismissed the Petition for Review under MAPA, allowing the appeal under FOAA to proceed.
The Plaintiff, Patrick Gordan, Esq., a lawyer practicing law in Maine with the law firm of Fairfield and Associates, submitted a written FOAA request to the Commission on or about July 20, 2021. Gordon's request fell into three categories of records, namely:
1. The entire file MCILS has on attorney Patrick Gordon relating to any current "complaint" and/a "investigation." This includes the "complaint" and/or "investigation" for which Attorney Gordon was suspended effective July 1 and
any complaint or investigation Justin Andrus has been involved with regarding Attorney Gordon since he started working for MCILS. This should include, but not be limited to, every note, every document, every telephone call, every recording, and every email in your possession.
2. All correspondence between Justin Andrus and Tina Nadeau from Justin Andrus' start date at MCILS to present including every email, every letter, every phone call, every text or any communication and a record of every telephone call or electronic communication between Justin Andrus and Tina Nadeau during the same time period. Please also include screen shots of the searches done to retrieve this information.
3. The documentation (including, but not limited to, the Justin Andrus employment contract) the Commission hired Justin Andrus pursuant to Title 4 of the Maine Revised Statutes as the Executive Director and the documentation the investigation against Attorney Patrick Gordon is a "Commission investigation" pursuant to MCILS procedures.
Andrus acknowledged receipt of Gordon's FOAA request in a letter dated July 27, 2021 and estimated a period of 30-60 days within which the request would be answered. He also alerted Gordon to the likelihood that certain aspects of the FOAA request would be denied based on confidentiality provisions in the statute creating MCILS and because certain requested records were not "public records" as defined in FOAA. In an email communication with counsel for Gordon on October 12, 2021, Andrus indicated that he had completed collection of the material responsive to the FOAA request. He informed Gordon's attorney that records relating to the investigation of Gordon by MCILS would be treated as confidential and not "public records" but that the material would be provided to Gordon, through his attorney, as the subject of the investigation.
In a letter dated October 19, 2021, addressed to counsel for Gordon, Andrus provided the following response to the three categories (or specifications) of requested documents:
1. MCILS investigative records of Attorney Patrick Gordon.
Response: All documents in this category (specification) were determined to be confidential by virtue of 4 M.R.S. § 1806(2)(F). Nevertheless, a significant number of documents within this specification were provided to counsel for Gordon as part of the MCILS adjudicatory hearing.
2. All correspondence between Justin Andrus and Tina Nadeau.
Response: Documents within this specification were provided to counsel for Gordon, subject to redaction or were withheld if they did not meet the definition of "public records" within the meaning of FOAA.
3. Documentation of the hiring of Justin Andrus by MCILS including his employment contract and documentation that the investigation of Attorney Gordon was an "MCILS investigation."
Response: Documents were provided in response to this request, subject to redaction.
The court conducted a recorded telephone conference with the parties on March 29, 2022, as a result of which counsel for MCILS was directed to submit to the court for its in-camera inspection copies of the redacted and unredacted documents, indicating what records had been provided and what documents had been withheld. Three binders of records were submitted to the court for its review. The binders detail what documents were produced to Gordon and what documents were withheld or redacted, and included a privilege log describing the documents and explaining why the record was withheld or redacted. Briefing in this matter was completed on June 6, 2022.
The court has conducted an in-camera inspection of the three binders of material and, in doing so, found the privilege log to be quite helpful. Based on its review and after consideration of the written arguments of the parties, the court makes the following findings and conclusions.
Category 1 - Commission Investigative Records
Title 4 M.R.S. § 1806 states that "(disclosure of information and records in the possession of the commission is governed by this section." As particularly relevant for purposes of this case, 4 M.R.S. § 1806(2)(F) provides:
The following information and records in the possession of the commission are not open to public inspection and do not constitute public records as defined in Title 1, section 402, subsection3 [FOAA],
F. Any information obtained or gathered by the commission when performing an evaluation or investigation of an attorney is confidential, except that it may be disclosed to the attorney being evaluated or investigated.
Maine's FOAA makes any record a public record if it "has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business." 4 M.R.S. § 402(3). There are, however, exceptions to this general rule, including: "Records that have been designated confidential by statute." 4 M.R.S. § 402(3)(A).
In the court's view, the language of 4 M.R.S. § 1806(2)(F) making the investigative records of the Commission confidential is clear. Such records are confidential and are not public records. Nevertheless, Gordon has argued that the correct interpretation of the statutory language is that "when an attorney requests the information, the Commission shall supply it . . . ." Plaintiff's Brief at 3. Gordon appears to conflate the provisions of Maine's
Freedom of Access Act with the Commission's authority to disclose otherwise confidential records to an attorney under investigation and subject to an adjudicatory proceeding before the Commission. The fact that the Commission is authorized to disclose otherwise confidential records to the subject of an investigation does not make those documents "public records" under FOAA. Rather, it makes clear that the Commission may make such disclosure without violating the confidentiality provision in section 1806(2)(F).
Here, the Commission did, in fact, provide a substantial number of records to Gordon's attorney in connection with his adjudicatory hearing before the Commission. From the court's inspection of the records, it appears that the records that were not disclosed were duplicative of what was disclosed. The court concludes that, with respect to the records in Category 1, the Commission's denial under FOAA was for just and proper cause. 1 M.R.S. § 409(1).
Category 2 - Correspondence Between Executive Director Andrus and Attorney Nadeau
The Legislature has declared that "public proceedings exist to aid in the conduct of the people's business." Consistent with this expression of legislative intent, Maine's Freedom of Access Act "shall be liberally construed and applied to promote its underlying purposes and policies . . . ." 1 M.R.S. §401.
In his FOAA request to the Commission, Gordon sought "[a] 11 correspondence between Justin Andrus and Tina Nadeau from Justin Andrus' start date at MCILS to present . . . In its response to this request, the Commission divided it into four sub-categories, namely, emails, text messages, signal messages and cellular phone records. Within each sub- category, the Commission redacted information if it concluded that the information did not constitute a "public record," or if it contained information that was protected from disclosure. In some instances, the Commission withheld the document if it determined that it was not subject to disclosure.
In many instances, the Commission withheld the signature block on the emails, presumably because it contained no information other than the signature block itself. The court finds that the Commission had just and proper cause for doing this.
Utilizing the privilege log, the court has closely examined the documents submitted for its in-camera inspection and finds that the Commission acted with just and proper cause in either redacting the information or withholding it, except as follows:
The court is not making a finding that the redactions or withholdings discussed in the text were done without just and proper cause. Rather, the court intends to set forth its concerns and give the Commission an opportunity to respond if it chooses to do so.
Pages 13-14; 16; 40; 42-43; 68-72; 85-86; 88-89; 94; 97; 128130; 132-144; 145-146; 160-163; 291; 373-377:
These documents were redacted or withheld pursuant to 4 M.R.S. § 1806(2)(E), which provides that a request for funds for expert or investigative assistance is confidential. What appears to have been redacted is the name of the defendant in the cases and, in one instance, the name of one of his appointed attorneys. The court notes that 4 M.R.S. § 1806(2)(A) makes individual client information confidential, but the name of a criminal defendant charged with a felony (murder, or Class A, B or C crime) is not confidential. Furthermore, while personal contact information of a rostered attorney is confidential, the name of the attorney does not appear to be confidential. The court questions whether the redaction of the names, as opposed to the details of the request for expert or investigative assistance, comes within the scope of section 1806(2)(E).
Pages 84;132-144;160-163; 373-377: These pages were withheld pursuant to 4 M.R.S. § 1806(2)(E). The court questions why these documents were withheld when similar documents were redacted.
Pages 135, 138, 142, 161-162, and 374: These pages were withheld pursuant to 4 M.R.S. § 1806(2)(E). The court notes that this section of the law provides that the decision of the executive director to grant or deny a request for expert or investigative assistance is not confidential "after a case has been completed." The court, of course, does not know whether in any instance the case was completed within the meaning of the statute, but does note that the email indicates that the executive director made decisions on the requests.
Pages 421 &422 from 5:58pm to 6:18 pm: This material was redacted on the basis that it does not relate to the transaction of public or governmental business. The court, however, finds that the redacted material does relate to the transaction of governmental business and should be disclosed.
Page 475 from 3:50 pm to 3:51 pm: The court finds that this redacted material relates to the transaction of governmental business and should be disclosed.
Page 492 at 10:52 am: The court finds that this redacted material relates to the transaction of governmental business and should be disclosed.
Category 3 - Documents related to the hiring o f Executive Director Andrus
The Commission provided the requested documents, only redacting personal contact information pursuant to 4 M.R.S. § 1806(2)(D).
CONCLUSION
Except for those pages identified by the court in this Decision and Order, the court finds that the Commission's withholding and/or redaction of documents was for just and proper cause. With respect to those pages identified by the court as potentially being subject to disclosure, the Commission may provide supplemental briefing on or before August 5, 2022, as to why the material should not be disclosed, notwithstanding the court's concerns.
Finally, the court finds that the Plaintiff is not a "substantially prevailing plaintiff' who is entitled to attorney's fees. Further, the court finds that the Commission's actions were not done in bad faith. Accordingly, the Plaintiff is not entitled to an award of attorney's fees pursuant to 1 M.R.S. § 409(4).
The entry is:
The Plaintiff's FOAA appeal is GRANTED IN PART and DENIED IN PART.
The Clerk is directed to incorporate this Order into the docket of this case by notation reference in accordance with M.R.Civ.P. 79(a).