Keegan J. Fairfield v. Maine State Police

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 12
Docket: Yor-22-186
Submitted
On Briefs: December 7, 2022
Decided: February 7, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

KEEGAN J. FAIRFIELD

v.

MAINE STATE POLICE

JABAR, J.

[¶1] Keegan J. Fairfield appeals from an order entered by the Superior

Court (York County, Mulhern, J.) affirming the Maine State Police’s (MSP)

decision to withhold documents Fairfield sought pursuant to a Freedom of

Access Act (FOAA) request. See 1 M.R.S. §§ 400-414 (2022).1 The trial court

correctly interpreted FOAA and did not err in its review of the factual record,

and, therefore, we affirm the order.

1 We cite the current statutes because, although FOAA has been amended since the MSP declined
to release certain requested materials to Winchester, the amendments are not relevant to the present
case. See, e.g., P.L. 2021, ch. 313, § 5 (effective Oct. 18, 2021) (codified at 1 M.R.S. § 412(1) (2022)).
2

I. BACKGROUND

A. FOAA Request

[¶2] On May 7, 2020, Fairfield submitted a FOAA request to the MSP,

seeking (1) documentation of MSP Crime Laboratory protocols including

standing operating procedures; (2) DNA contamination logs; (3) quality

assurance records; and (4) quality assurance manuals dating back to 2008. The

MSP acknowledged receipt of the request later that day.

[¶3] The MSP distributed files to Fairfield on September 28, 2020, and

November 11, 2020. On December 11, 2020, the MSP notified Fairfield that it

was denying his request as to certain documents that fell within the four

requested categories. Specifically, the MSP withheld the DNA contamination

logs and three types of quality assurance records: (1) corrective action forms;

(2) testimony review forms; and (3) drying locker logs.2 As of March 4, 2021,

the MSP had provided approximately 6,800 pages of requested materials in full,

as well as forty partially redacted pages. The MSP withheld approximately

2,700 pages, concluding that they were confidential under state law.

The MSP withheld some of the corrective action forms, all the testimonial review forms, and
2

portions of each drying locker log.
3

B. Proceedings Below

[¶4] On December 11, 2020, Fairfield appealed the MSP’s decision to

redact and withhold certain documents to the Superior Court. See 1 M.R.S.

§ 409(1). In an order dated March 4, 2021, the court (Fritzsche, A.R.J.) ordered

the withheld documents to be presented for in camera review. Additionally, the

court scheduled a hearing that was limited, “[u]nless the reviewing Justice

decides otherwise, . . . to answering any questions the Justice may have about

the documents and an inquiry into whether the defendant has made a

comprehensive search for relevant documents and what, if any, types of

documents were neither disclosed nor subject to in camera [review].”

[¶5] Fairfield submitted a witness list for the hearing, revealing that the

witnesses were expected to testify on alleged deception and data accuracy

issues at the MSP Crime Laboratory. At a status conference on July 29, 2021,

the court (Mulhern, J.) determined that this testimony would go beyond the

scope of the hearing and vacated the March 4, 2021, scheduling order. On

August 2, 2021, Fairfield filed a motion to reconsider the court’s order vacating

the earlier scheduling order. The court denied the motion and issued a new

scheduling order, stating that it would rely exclusively on briefs, an in camera

review, affidavits that the parties were invited to file, and an exceptions log
4

prepared by the MSP as the factual record. The court reserved the right to hold

a hearing after reviewing the submitted materials.

[¶6] Fairfield submitted his brief and additional materials on January 3,

2022. The brief was ninety-six single-spaced pages, and none of the materials

that Fairfield sought to introduce to the court were in the form of affidavits. The

MSP filed a reply brief on February 2, 2022, along with affidavits concerning the

nature of the withheld documents, why the documents were withheld, and

operations of the MSP Crime Laboratory generally.

[¶7] The court issued an order denying Fairfield’s FOAA appeal on

May 26, 2022, and stated that it did not consider Fairfield’s additional materials

as part of the evidentiary record. Fairfield timely appealed. M.R.

App. P. 2B(c)(1).

II. DISCUSSION

[¶8] On appeal, Fairfield challenges the court’s determination that the

DNA contamination logs and quality assurance records withheld by the MSP are

confidential under state law.3

3Fairfield also argues on appeal that the court’s decision to vacate the March 4, 2022, scheduling
order and to cancel the hearing violated the “law of the case” doctrine. The scheduling order was
explicitly provisional, and provisional orders are not subject to the “law of the case” doctrine. See
Raymond v. Raymond, 480 A.2d 718, 721 (Me. 1984).
5

A. Standard of Review

[¶9] In reviewing whether a government entity complied with FOAA, we

review the trial court’s factual findings for clear error and its interpretation of

FOAA de novo. See Anctil v. Dep’t of Corr., 2017 ME 233, ¶ 5, 175 A.3d 660. Any

exceptions to FOAA’s disclosure requirement are strictly construed to promote

FOAA’s underlying policies and purposes. Id. “When an agency denies a FOAA

request, the agency bears the burden of establishing that there is just and

proper cause for the denial.” Preti Flaherty Beliveau & Pachios LLP v. State Tax

Assessor, 2014 ME 6, ¶ 10, 86 A.3d 30.

[¶10] We have not yet had the occasion to announce a standard of review

in instances where a party submits a FOAA request that implicates a large

quantity of records. In announcing a standard of review today, we look to

federal interpretation of the Freedom of Information Act (FOIA) for guidance.

See Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, ¶ 13, 871 A.2d 523.

[¶11] When confronted with a significant volume of withheld and

redacted documents, federal courts have interpreted FOIA to grant trial courts

broad discretion in their creation and review of a factual record. See, e.g.,

Montgomery v. IRS, 40 F.4th 702, 713 (D.C. Cir. 2022) (“We have explained on

numerous occasions that the decision whether to perform in camera inspection
6

is left to the broad discretion of the trial court judge.” (quotation marks

omitted)). If a trial court orders the submission of documents for in camera

review, “it need not inspect each and every document in question, [and] many

courts tak[e] the position that an in camera examination in the nature of a spot

check or random sample of documents is sufficient to determine the propriety

of the withholding of records.” Lewis J. Heisman, Annotation, Power of court

under 5 USCS § 552(a)(4)(B) to examine agency records in camera to determine

propriety of withholding records, 60 A.L.R. Fed. 416 § 2 (1982); see also NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (“The in camera review

provision is discretionary by its terms, and is designed to be invoked when the

issue before the District Court could not be otherwise resolved; it thus does not

mandate that the documents be individually examined in every case.”).4

[¶12] Accordingly, where a requesting party challenges a trial court’s

determination that a large number of requested documents are confidential,

our approach is two-fold. First, we analyze de novo whether the trial court has

4In announcing our standard of review, we acknowledge that FOIA and FOAA are distinct from
one another. However, both statutes provide factfinders with discretion to create a factual record.
See 5 U.S.C.S. § 552(a)(4)(B) (LEXIS through Pub. L. No. 117-242); Dubois v. Dep't of Env’t. Prot., 2017
ME 224, ¶ 10, 174 A.3d 314 (holding that trial courts have “discretion to determine the process
necessary for the resolution of disputed facts, giving due consideration to the efficacy, costs, and time
required for each method of presentation of evidence”).
7

created a sufficient factual record upon which it can determine whether the

withheld documents are confidential.5 Second, we independently review the

factual record, including any documents submitted for in camera review, to

ensure that the court did not commit clear error in its description and

categorization of the withheld documents. Cf. Havemann v. Colvin, 537 F. App’x

142, 146 (4th Cir. 2013) (“[W]here FOIA is involved, [appellate] review is

limited to determining (1) whether the district court had an adequate factual

basis for the decision rendered and (2) whether upon this basis the decision

reached is clearly erroneous.” (alterations and quotation marks omitted)). We

may satisfy this second step by spot-checking a random selection of any

withheld documents submitted for in camera review and reviewing other

components of the factual record.

B. Statutory Framework

[¶13] A person has the right to inspect any public record unless

otherwise provided by statute. 1 M.R.S. § 408-A(2). Records that are

5 Although Fairfield challenges the adequacy of the factual record on appeal, the court here
created a factual record nearly identical to the one we approved in Dubois v. Department of
Agriculture, Conservation and Forestry: an in camera review of the withheld documents, an exceptions
log, the parties’ briefs, and any additional affidavits submitted by the parties. 2018 ME 68, ¶¶ 11-12,
185 A.3d 743. Accordingly, we find that the court here “creat[ed] a fair process for all of the parties
to present information that . . . create[d] a meaningful and sufficient record on which the court could
adjudicate the FOAA claim.” Id. ¶ 12.
8

designated confidential by statute are not public records under FOAA, 1 M.R.S.

§ 402(3)(A), and confidential information may be redacted from records that

would otherwise be subject to disclosure, see Doyle v. Town of Falmouth, 2014

ME 151, ¶ 9, 106 A.3d 1145.

[¶14] The MSP contended, and the trial court agreed, that three different

statutes rendered certain withheld documents confidential: 16 M.R.S.

§§ 801-809 (2022) (Intelligence and Investigative Record Information Act),6

25 M.R.S. §§ 1571-1578 (2022) (DNA Data Base and Data Bank Act), and 5

M.R.S. § 7070 (2022) (personnel records provision).

1. Intelligence and Investigative Record Information Act

[¶15] A record that contains intelligence and investigative record

information is confidential if there is a reasonable possibility that public release

or inspection of the record would result in an unwarranted invasion of privacy.

16 M.R.S. § 804(3). In Blethen Maine Newspapers, Inc., 2005 ME 56, ¶ 14, 871

A.2d 523, we applied a three-part test to determine if disclosure would result

in an unwarranted invasion of privacy, considering “(1) the personal privacy

6We cite the current statutes because, although the Intelligence and Investigative Record Act has
been amended since the MSP denied portions of Fairfield’s FOAA request, the amendments are not
relevant in the present case. See, e.g., P.L. 2021, ch. 353, § 2 (effective Oct. 18, 2021) (codified at
16 M.R.S. § 806-A (2022)).
9

interests . . . in maintaining the confidentiality of the records sought by [the

requesting party]; (2) the public interest supporting disclosure of the records;

and (3) the balancing of the private and public interests.”

[¶16] Intelligence and investigative records often contain sensitive

personal information that may not have been verified and “[f]ew people wish

to be publicly associated with investigations of alleged criminal conduct,

whether as a perpetrator, witness, or victim.” Id. ¶ 15. Accordingly, individuals

referenced in intelligence and investigative records have a significant interest

in keeping their identities private. See id.

[¶17] As to the public interest prong, the requesting party must

demonstrate that the information sought is likely to advance a significant public

interest. Id. ¶ 33. We have previously acknowledged, however, that the public

has a significant interest in “information that might document governmental

efficiency or effectiveness . . . [and] information documenting governmental

negligence or malfeasance.” Id. ¶ 32.

2. DNA Data Base and Data Bank Act

[¶18] “All DNA records are confidential and may not be disclosed to any

person or agency unless disclosure is authorized by [25 M.R.S. § 1577].”

25 M.R.S. § 1577(1). Any DNA identification information obtained from DNA
10

analysis is a “DNA record.”7 25 M.R.S. § 1572(5). DNA records with personal

identifying information may be released only to certain law enforcement

agencies and personnel, medical examiners, and any individual who seeks their

own DNA record. 25 M.R.S. § 1577(2), (4).

3. Personnel records provision

[¶19] State employee records containing performance evaluations are

confidential in their entirety. See 5 M.R.S. § 7070(2)(B). Similarly, employee

records containing “information or materials that may result in disciplinary

action” are confidential and may not be disclosed, if at all, until a final written

decision relating to disciplinary action is issued. Id. § 7070(2)(E); cf. Lewiston

Daily Sun v. City of Lewiston, 596 A.2d 619, 621 (Me. 1991).8 The provision

relating to disciplinary action exempts only records relating to potential or

Fairfield appears to assert that a DNA record contains “identification information” only if a lay
7

person can use the record to identify its subject. We have previously held, however, that the statute’s
safeguards are meant to “minimize the risk that personally identifiable information can be
inappropriately mined or released.” State v. Hutchinson, 2009 ME 44, ¶ 25, 969 A.2d 923 (emphasis
added). Thus, the statute is intended to protect information that, if released to the public generally,
could be used to identify the DNA record’s subject. Accordingly, we are unpersuaded by Fairfield’s
proposed reading of the DNA Data Base and Data Bank Act.

In Lewiston Daily Sun v. City of Lewiston, 596 A.2d 619 (Me. 1991), we interpreted a statute that
8

contains nearly identical language to the personnel records provision at issue here, but that applies
to municipal workers instead of state workers. See 30-A M.R.S.A. § 2702 (Pamph. 1990). The
municipal records law has since been amended and is intended to “parallel the same [privacy]
protections provided for state employees.” L.D. 1790, Summary (129th Legis. 2019); see P.L. 2019,
ch. 451, § 3 (effective Sept. 19, 2019) (codified at 30-A M.R.S. § 2702 (2022)).
11

actual disciplinary action, Me. Today Media, Inc. v. City of Portland, No. AP-13-05,

2013 Me. Super. LEXIS 144, at *6 (June 24, 2013), and the exception must be

narrowly drawn and does not protect all information pertaining to misconduct,

Guy Gannett Publ’g Co. v. Univ. of Me., 555 A.2d 470, 472 (Me. 1989).

C. Withheld Documents

[¶20] We now address the two types of documents that Fairfield

contends should have been disclosed to him: DNA contamination logs and

quality assurance records.

1. DNA contamination logs

[¶21] DNA contamination logs track all instances of identified

contamination of DNA samples, and the MSP withheld these records in their

entirety. The withheld documents contain highly sensitive information

including the identification of suspects or victims, the nature of the offense, and

“evidence, such as . . . anal or vaginal swab[s] . . . [and] body fluids.”

[¶22] The MSP went through painstaking efforts to create an exceptions

log detailing the various reasons for each contamination log’s confidentiality.

Upon our random review of the withheld DNA contamination logs, we hold that

the court did not err in its determination that the disclosure of certain

contamination logs would lead to an unwarranted invasion of privacy. Indeed,
12

it is difficult to imagine information more sensitive than the genetic information

contained in the withheld contamination logs. See Blethen Me. Newspapers, Inc.,

2005 ME 56, ¶ 15, 871 A.2d 523 (“[W]hen the subject of a law enforcement

record is a private individual, the privacy interest protected by the privacy

exception is at its apex.”). While we agree with Fairfield that there is a strong

public interest in the release of “information as to the integrity and credibility

of [the MSP’s] work,” we cannot say that the court clearly erred in determining

that the private interest in keeping the contamination logs confidential

outweighed the public interest in their release.9

[¶23] The MSP also relied on the DNA Data Bank and Data Base Act to

withhold certain contamination logs. Our review of the withheld documents

confirms that the relevant contamination logs contain DNA identification

information. Because the presence of DNA identification information renders

the entirety of the record confidential, the court did not err in relying on the

DNA Data Base and Data Bank Act to determine that the implicated

contamination logs were confidential. See 25 M.R.S. § 1577.

9 Fairfield argues that the court improperly interpreted the Intelligence and Investigative Record

Information Act to mean that “any intelligence and investigate record information is confidential.”
Contrary to Fairfield’s contention, the court noted the “sensitive” nature of the information contained
in the documents and referenced its responsibility to “balance the need for transparency of
government action with the protection of sensitive information.”
13

2. Quality assurance records

[¶24] The quality assurance records consist of three types of forms

withheld by the MSP: (a) corrective action forms, (b) testimony review forms,

and (c) drying locker logs.

a. Corrective action forms

[¶25] An MSP affidavit states that corrective action forms “are used to

identify possible nonconformances in the laboratory . . . [including] inaccurate

analyses or methods, inaccurate reports, instrument malfunction and

non-fulfillment of an accreditation or laboratory policy.” After being filed, the

lab’s quality manager reviews the corrective actions forms, evaluates the

employee’s work, and decides whether remedial measures are appropriate.

Further, corrective action forms document employee performance. The forms

often contain case-specific information—including the nature of the

contamination, the name of the alleged victim or suspect, and the name of the

law enforcement officer—and may identify any relevant employees by name or

position. Here, the corrective action forms were withheld only where they

addressed the performance of staff, and the case-specific identification

information was redacted on the remaining records.
14

[¶26] Our review of a sample of the withheld corrective action forms

confirms that the court did not err in its determination that the withheld

corrective action forms were confidential. Because the documents clearly

contain information that may result in disciplinary action, see 5 M.R.S.

§ 7070(2)(E), and are used to document employee performance, id.

§ 7070(2)(B), each of the corrective action forms pertaining to employee

performance is confidential in its entirety. Because the MSP primarily withheld

documents pertaining to employee performance, the court did not err in

deeming the withheld documents confidential.10

[¶27] Similarly, the court did not err in classifying the redacted case

information as confidential. Following the balancing test set forth in Blethen

Maine Newspapers, Inc., 2005 ME 56, ¶ 14, 871 A.2d 523, we are satisfied that

release of the suspect and victim names would result in an unwarranted

invasion of privacy, particularly because it is unclear how the release of victims’

names would advance the public interest asserted by Fairfield. See Dean v. State

Two additional corrective actions forms were withheld solely out of concerns for lab security,
10

16 M.R.S. §§ 803(7), 804(7) (2022), and one more was withheld solely under the DNA Data Base and
Data Bank Act, 25 M.R.S. § 1577(1) (2022). Having reviewed each of these three documents
individually, we conclude that the trial court did not clearly err in categorizing each as confidential
under either the DNA Data Base and Data Bank Act or the Intelligence and Investigative Record
Information Act.
15

Fire Marshal’s Off., No. CV-2020-129, 2021 Me. Super. LEXIS 35, *8 (Feb. 19,

2021).

b. Testimony review forms

[¶28] Testimony review forms evaluate and document whether MSP

Crime Lab employee testimony is technically accurate, professionally delivered,

and easy to understand. Each of these documents were withheld under the

personnel records provision. See 5 M.R.S. § 7070(2)(B).

[¶29] Upon our random inspection of the testimony review forms, we

conclude that the court did not error in determining that the withheld

documents were confidential. The testimony review forms were fairly

characterized as performance evaluations and, consequently, are entirely

confidential under the personnel records provision.

c. Drying locker logs

[¶30] Drying lockers are secure locations to store and dry out wet

evidence, such as evidence soaked in bodily fluids. Drying locker logs track

“receipt and removal of evidence from the lockers.” The MSP released all the

drying locker logs to Fairfield, but it redacted the names of the suspects and

victims associated with the evidence, concluding that release of the names
16

would produce an unwarranted invasion of privacy, rendering the names

confidential under Intelligence and Investigative Record Information Act.

[¶31] Upon our review of the documents, we are satisfied that release of

the withheld names would result in an unwarranted invasion of privacy.

Because “[f]ew people wish to be publicly associated with investigations of

alleged criminal conduct, whether as a perpetrator, witness, or victim,” the

individuals whose names were redacted from the drying locker logs have a

strong personal privacy interest in preventing their names from being released

to the public. Blethen Me. Newspapers, Inc., 2005 ME 56, ¶ 15, 871 A.2d 523.

Additionally, as with the corrective action forms, it is unclear how releasing the

names of the suspects and victims would advance the public interest asserted

by Fairfield. Accordingly, we find that the court did not err in finding that the

suspects’ and victims’ names on the drying locker logs were confidential under

the Intelligence and Investigative Records Act.

III. CONCLUSION

[¶32] The court did not err in its creation of a factual record. Following

our independent review of the factual record, we further hold that the court did

not clearly err in determining that the MSP met its burden to show that the

withheld records were confidential.
17

The entry is:

Judgment affirmed.

Amy L. Fairfield, Esq., Fairfield & Associates, P.A., Lyman, for appellant Keegan
J. Fairfield

Aaron M. Frey, Attorney General, and Laura A. Yustak, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Maine State Police

York County Superior Court docket number AP-2020-25
FOR CLERK REFERENCE ONLY