Opinion
Civil Action AP-19-39
02-04-2021
SUSAN HAWES, Plaintiff v. CUMBERLAND COUNTY SHERIFF'S OFFICE, Defendant
Plaintiff-Susan M Hawes (Pro se) Defendant-Michael Devine, Esq.
Plaintiff-Susan M Hawes (Pro se)
Defendant-Michael Devine, Esq.
ORDER
Thomas D. Warren, Justice
A healing was held on December 21, 2020 on plaintiffs action under the Freedom of Access Act to obtain certain overtime records relating to officers at the Cumberland County Jail.
This case was about to be scheduled for a hearing when court proceedings were curtailed in March 2020. Since then there has been almost no time in Cumberland for Superior Court civil proceedings due to the pandemic and the need to focus on criminal cases.
Ms. Hawes has three counts in her amended FOAA complaint, but Count II has previously been resolved.
Count I of the amended complaint seeks specific overtime records for the month of July 2019, requested in an email from Ms. Hawes dated November 17, 2019. In prior proceedings Ms. Hawes specified that she understood that the specific records in question had been kept in several binders.
The initial response of the Sheriffs Office was that the records were confidential pursuant to 16 M.R.S. § 804(7). In its answer to the amended complaint the Sheriffs Office also asserted 16 M.R.S. § 804(8). As the case progressed, however, it appeared that the confidentiality concerns of the Sheriffs office related only to any telephone numbers that might be contained on the records, and Ms. Hawes stated that she was willing to allow any telephone numbers to be redacted. The Sheriffs Office thereafter reported that it could not locate any of the binders referred to by Ms. Hawes or the July 2019 overtime records that had allegedly been kept in those binders.
16 M.R.S § 804(7) protects "intelligence and investigative record information," as defined in 16 M.R.S. § 803(7), that would "disclose investigative techniques and procedures or security plans and procedures not known by the general public." Section 804(8) protects intelligence and investigative record information that would "endanger the life or physical safety of any individual, including law enforcement personnel."
However, at the outset of the December 21, 2020 hearing counsel for the Sheriffs office reported that certain documents responsive to Count I had recently been discovered and produced to Ms. Hawes and that a further search was underway for further documents that were also believed to exist.
Ms. Hawes offered evidence through Thomas Wiley, a retired employee of the Cumberland Sheriffs Office, which established that overtime records had been maintained during his tenure listing the employees working overtime for every shift and any so-called forced overtime. Those records were kept in five three-ring binders. As time went on, records relating to past months were removed from the binders and were stored in a room near the Lieutenant's office.
One or more of the records recently produced to Ms. Hawes came from those binders (Exhibit 3). The parties agreed that before Count I could proceed to a conclusion, the Sheriffs office needed to continue to search for the remaining records responsive to Count I that were believed to exist.
The remainder of the hearing addressed Count III of the complaint, which involved Ms. Hawes's request as set forth in a November 24, 2019 email for the following:
a current 2019 Jail Active Roster, including vacant positions, with the standard roster columns: Employee Number / Last Name / First Name / Job Class / Job Class Description / Position / Pay Type / Pay Type Description / Position Description /Location / Group / Bargaining Unit.
The Sheriffs Office maintained that it had complied with this request by producing the information sought in the form of a Microsoft Excel worksheet which in .pdf format amounted to approximately 321 pages listing each employee multiple times. Because Ms. Hawes had previously obtained a far more intelligible 3 page document listing the exact information she was requesting for a month in 2017 (Hawes Ex. 5), she reasonably believed that the Sheriffs Office was providing the information in the least intelligible form and had not produced a current version of Exhibit 5.
Exhibit A, offered by Ms. Hawes, is an excerpt from that document, consisting of a page and a half showing the entries for one employee.
The evidence at the hearing, however, demonstrated that Exhibit 5 was a document that had been prepared for a specific County Commissioners' workshop by Alex Kimball, the county's Treasurer. Mr. Kimball had spent several hours manually preparing Exhibit 5 - cutting and pasting some of the information from a computer printout. Neither the Sheriff 's Office nor the County had a current version of that document, not was the information electronically stored in the format' requested by Ms. Hawes. See 1 M.R.S. § 408(7).
The county uses "Munis" software to process payroll, but the county does not have a Munis feature that would have allowed it to provide a record in a format sought by Ms. Hawes.
Under the Freedom of Access law, agencies are not required to create a record that does not exist. 1 M.R.S. § 408(6). Accordingly, the Sheriffs Office was not required to create a 2019 Jail Active Roster in the format sought by Ms. Hawes, and the court cannot find that Ms. Hawes is entitled to prevail on Count III of the amended complaint.
The court will make one other observation. Ms. Hawes is a longtime critic of the personnel policies at the Jail, and this has resulted in an adversarial relationship and a lack of trust on both sides. It is not clear that the Sheriffs office ever contacted Ms. Hawes to explain the problem with her November 24, 2019 request. If it had done so, it is not clear that Ms. Hawes would have accepted the explanation offered by the Sheriffs office. However, if there had been more communication, the parties and the court might have been spared litigation on this issue.
Ms. Hawes stated at the hearing that through another FOAA request she had obtained a current employee list. The other information that prompted her request - a list of vacant positions - appears to be available from budget documents that have been made public,
Count I of the amended complaint remains unresolved. The most recent information provided to the court after the December 21, 2020 hearing is that additional records responsive to the November 17, 2019 request had been found and were being reviewed before copies could be provided to Ms. Hawes. The parties shall advise the court on or before February 24, 2021 as to the status of the remaining records involved in Count I.
Even if Ms, Hawes has now received ail of the available records, she has made a request for attorney's fees and litigation costs on the ground that the responses of the Sheriffs Office to her requests were in bad faith. Because she is proceeding pro se, she is likely not entitled to attorney's fees, see Kay v. Ehrler, 499 U.S. 432, 435 & n. 5 (1991), but she could be entitled to litigation costs if the Sheriffs Office is found to have acted in bad faith
The entry shall be:
Judgment is entered for defendant on Count III of the amended complaint. Count I remains unresolved. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).