Human Rights Defense Center v. Maine County Commissioners Association Self-Funded RIsk Management Pool

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 56
Docket: Ken-22-420
Argued: June 8, 2023
Decided: August 22, 2023

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

HUMAN RIGHTS DEFENSE CENTER

v.

MAINE COUNTY COMMISSIONERS ASSOCIATION
SELF-FUNDED RISK MANAGEMENT POOL

HORTON, J.

[¶1] The Maine County Commissioners Association Self-Funded Risk

Management Pool (Risk Pool) appeals from a judgment of the Superior Court

(Kennebec County, Billings, J.) awarding attorney fees to the Human Rights

Defense Center (HRDC), based on the court’s ruling after an evidentiary hearing

that the Risk Pool had refused in bad faith to comply with HRDC’s request for

records pursuant to the Maine Freedom of Access Act (FOAA), 1 M.R.S.

§§ 400-414 (2023).

[¶2] This case presents the first occasion for us to consider what
2

constitutes “bad faith” for purposes of FOAA’s fee-shifting provision.1 1 M.R.S.

§ 409(4). Because the Risk Pool never denied or explicitly refused to comply

with HRDC’s request, we must consider the circumstances under which a public

entity’s failure to comply with a FOAA request rises to the level of a bad-faith

refusal to comply. See id. Here, the Risk Pool’s failure to produce any of its

records in response to HRDC’s FOAA request, despite HRDC’s repeated efforts

to clarify what should already have been clear, can only be viewed as, in the

court’s words, “deceptive and abusive of the FOAA process.” We agree with the

court that the Risk Pool’s response constituted a bad-faith refusal and we affirm

the judgment.

I. BACKGROUND

A. Factual Background

[¶3] “The following facts are drawn from the court’s findings, which are

supported by the record . . . .” Dubois v. Dep’t of Agric., Conservation and Forestry,

2018 ME 68, ¶ 2, 185 A.3d 743.

[¶4] HRDC is a non-profit organization that collects information from law

enforcement and corrections agencies and other public entities in furtherance

1 Based on the novel-for-us issue presented, we granted a motion by the Maine Association of

Criminal Defense Lawyers, Maine Freedom of Information Coalition, Maine Press Association,
New England First Amendment Coalition, and Public Justice, for leave to file a joint amicus brief.
Their joint brief supports an affirmance of the judgment.
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of its mission to advocate for change in the criminal justice system. The Risk

Pool is an unincorporated, public, self-funded pool that provides risk

management services to Maine counties under a contract with the Maine

County Commissioners Association. See 30-A M.R.S. §§ 2251-2256 (2023)

(authorizing public, self-funded pools). Malcolm Ulmer, the Risk Pool’s director

of operations, maintains a claim file on each claim handled by the Risk Pool.

[¶5] At some point before June 18, 2021, HRDC became aware, through

a Portland Press Herald article, of the settlement of a federal lawsuit against

Kennebec County alleging maltreatment of a prisoner at the Kennebec County

Jail. The article indicated that the action was settled by the County’s payment

of $30,000 to the plaintiff. HRDC submitted a FOAA request to Kennebec

County for documents showing payments related to the action and settlement.

The County’s attorney responded by sending HRDC copies of pleadings filed in

the matter and a copy of a settlement agreement. However, the settlement

agreement indicated only that the settlement was in consideration of “One

Dollar and Other Good and Valuable Consideration” and did not mention the

$30,000 payment cited in the article.

[¶6] On June 18, 2021, HRDC submitted via email to the Risk Pool what

it designated as a FOAA request for “any documents showing payments
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disbursed to Jonathan Afanador and/or attorney John Wall[] by

Kennebec County, Nathan Willhoite, and/or the Maine County Commissioners

Association Self-Funded Risk Management Pool from January 1, 2021 to

present. This includes but is not limited to payment documentation related to

the following case: Afanador v. Kennebec County Case No: 1:20-cv-00235-JDL.”

[¶7] Ulmer, on behalf of the Risk Pool, responded via email the same day,

stating that he understood that the County’s attorney had already provided a

copy of the settlement agreement to HRDC and noting that the settlement

amount was $30,000. HRDC replied promptly to point out that the settlement

agreement did not indicate the dollar amount of the settlement and asked, “[d]o

you have any documentation that shows the $30,000 amount?” The Risk Pool

responded with a message saying only, “See attached,” attaching the Portland

Press Herald article stating that the case settled for $30,000, and not any Risk

Pool document from his claim file. On June 21, 2021, HRDC sent another

follow-up email asking for “a copy of the actual agreement that shows $30,000.”

On the same day, the Risk Pool replied that the release that HRDC received from

the attorney for Kennebec County was the “actual agreement” and that “I have

already advised you that the settlement amount is $30,000.”
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[¶8] On July 2, 2021, counsel for the American Civil Liberties Union of

Maine (ACLU of Maine) sent a letter via email to the Risk Pool and the attorney

for Kennebec County indicating that the ACLU of Maine was representing HRDC

in connection with its FOAA request and stating that “Kennebec County’s FOAA

response thus far is not in compliance with the FOAA.” The letter pointed out

that the settlement agreement produced by Kennebec County’s attorney did not

contain the dollar amount paid in settlement and that “[n]o documents were

produced that show that $30,000 was paid to Mr. Afanador, nor were any

documents produced showing payment to any attorneys involved in the case.”

The letter pointed out that “documents that are potentially responsive to the

FOAA request include accounting records, a copy of a cover letter that was sent

with payment, emails between individuals in county government and officials

in the sheriff’s office, or memoranda suggesting that officers not engage in

whatever conduct led to the filing of the litigation in the first place.” The letter

concluded by noting that HRDC would treat a failure to provide all responsive

documents as a final denial or refusal pursuant to 1 M.R.S. § 409(1). The Risk

Pool responded by stating that “it is [its] understanding that the signed release

provided to [HRDC] by [Kennebec County] is the only settlement release
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document.” The Risk Pool’s reply did not indicate whether the Risk Pool

possessed what HRDC had requested—“payment documentation.”

B. Procedural History

[¶9] Pursuant to FOAA’s appeal procedure, HRDC filed a complaint in the

Superior Court on July 27, 2021, against Kennebec County and the Maine

County Commissioners Association. See 1 M.R.S. § 409(1). Kennebec County

responded on September 7, 2021, by asserting that it had provided HRDC with

all responsive documents in its possession. See id. (“The agency or official shall

file a statement of position explaining the basis for denial . . . .”). The Maine

County Commissioners Association filed its statement of position on

September 27, 2021, asserting that HRDC should have named the Risk Pool as

a party instead of the Maine County Commissioners Association. See 1 M.R.S.

§ 409(1). HRDC filed a motion to amend its complaint on October 4, 2021, to

add the Risk Pool as a party. HRDC’s motion explained that it did not initially

name the Risk Pool as a party because it believed that the Risk Pool was part of

the Maine County Commissioners Association. On October 25, 2021, the court

granted HRDC’s motion to amend. The order did not address Kennebec

County’s or the Maine County Commissioners Association’s statements of

positions. On November 15, 2021, the Risk Pool filed an answer and affirmative
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defenses to HRDC’s amended complaint, asserting that HRDC’s appeal was

untimely, that all responsive documents were produced, and that any

documents withheld are privileged. On January 24, 2022, HRDC moved to

dismiss its appeal as to Kennebec County and the Maine County Commissioners

Association. The court granted the motion on February 1, 2022, leaving the

Risk Pool as the only defendant. See M.R. Civ. P. 41(a)(2).

[¶10] On March 1, 2022, the Risk Pool filed a motion to dismiss pursuant

to M.R. Civ. P. 12(b)(6), asserting that HRDC had failed to meet the FOAA

requirement that an appeal be filed within thirty calendar days of the agency’s

“refusal, denial, or failure” to comply with a FOAA request. 1 M.R.S. § 409(1).

HRDC’s memorandum in response to the Risk Pool’s motion contended that its

joinder of the Risk Pool related back to its timely initial complaint because

HRDC would have named the Risk Pool initially but for a mistake, and the

mistake caused no prejudice because the Risk Pool was aware of the action

from its outset. See M.R. Civ. P. 15(c)(3) (relation back of the joinder of a party).

HRDC included an affidavit of counsel explaining why HRDC had not initially

joined the Risk Pool in its appeal. The court denied the motion to dismiss,

agreeing with HRDC that “there was good reason for [HRDC’s] confusion” about
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whether the Risk Pool was a distinct legal entity, and ruled that HRDC’s joinder

of the Risk Pool in its amended complaint related back to its initial complaint.

[¶11] The court held a bench trial on September 29, 2022. The court

heard testimony from the executive director of HRDC and Ulmer. During the

trial, the Risk Pool acknowledged that it did in fact have “payment

documentation” (the same term used in HRDC’s FOAA request) for the

settlement and had still not provided it to HRDC. When pressed on why

documents showing the amount of payment had still not been provided, the

Risk Pool claimed that HRDC had not requested them.

[¶12] After the hearing, HRDC and the Risk Pool filed written closing

arguments. By its decision, dated December 1, 2022, the court noted that Ulmer

had testified “that he was in possession of a claim file and financial records that

contained documentation that showed the Risk Pool had paid $30,000 to settle

[the] claim, but did not release those documents because he did not believe that

HRDC had specifically requested them.” The court found that the Risk Pool “is

in possession of responsive documents and wrongfully refused to release them”

and ordered that the Risk Pool disclose all responsive documents “showing that

it paid $30,000 to settle the case.” The court granted HRDC’s request for

attorney fees based on what it found was the Risk Pool’s bad-faith response to
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HRDC’s request, because “the Risk Pool’s behavior was so deceptive and

abusive of the FOAA process.” See 1 M.R.S. § 409(4). The court found that

[a]t every stage of the FOAA process, the Risk Pool and Mr. Ulmer
adopted bizarre interpretations of HRDC’s request to avoid
disclosure, despite knowing from the beginning that they were in
possession of responsive documents. This type of obfuscation and
prevarication undermines the basic purpose of the FOAA, which is
to enable the public to be informed about what their government is
up to.

[¶13] The Risk Pool filed a motion to alter or amend the final judgment

on December 15, 2022. M.R. Civ. P. 52(b). On February 6, 2023, the court

denied the Risk Pool’s motion for amended findings of fact without comment.

The Risk Pool timely appealed from the final judgment. M.R. App. P. 2B(c)(1);

14 M.R.S. § 1851 (2023).

II. DISCUSSION

[¶14] “[W]e review the trial court’s factual findings for clear error and

its interpretation of FOAA de novo.” Fairfield v. Me. State Police, 2023 ME 12,

¶ 9, 288 A.3d 1220. The Risk Pool raises two arguments on appeal. It contends

that HRDC’s appeal was untimely and that the court erred in awarding attorney

fees to HRDC.
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A. Timeliness of HRDC’s Appeal

[¶15] Under FOAA “[a]ny person aggrieved by a refusal or denial to inspect

or copy a record or the failure to allow the inspection or copying of a record . . . may

appeal . . . within 30 calendar days of the receipt of the written notice of refusal, denial,

or failure . . . .” 1 M.R.S. § 409(1). The thirty-day period runs from the date on

which the requesting party learns of an agency’s violation of FOAA in the form

of a wrongful refusal, denial, or failure to comply with FOAA. See Palmer v.

Portland Sch. Comm., 652 A.2d 86, 89 (Me. 1995) (“A Freedom of Access claim

must be filed within thirty days of discovering a possible violation.”).

[¶16] The Risk Pool asserts that HRDC’s appeal was untimely for two

alternate reasons. First, the Risk Pool argues that the thirty-day period began

to run on June 21, 2021, because “the undisputed evidence is that [Ulmer] had

responded to the request as much as he was going to by June 21, 2021,” and

HRDC’s filing of its original complaint on July 27, 2021, was therefore untimely.

Second, the Risk Pool argues that even if HRDC’s initial complaint were deemed

timely, it failed to name the Risk Pool as a defendant, and the court erred in

deciding that the addition of the Risk Pool as a defendant in HRDC’s amended

complaint related back to the filing of the initial complaint. See M.R. Civ. P. 15.

We disagree on both points.
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[¶17] The Risk Pool’s contention that its June 21, 2021, response to

HRDC’s request triggered the appeal period because HRDC should have taken

it as the Risk Pool’s final response is unfounded. HRDC’s initial June 18, 2021,

request was for “any documents showing payments” made to settle the case,

and its clarification sought “documentation that shows the $30,000 amount.”

The Risk Pool’s June 21, 2021, reply did not indicate whether the Risk Pool

possessed such documents. HRDC was fully justified in attempting to ensure,

through its counsel’s July 2, 2021, follow-up letter, that the Risk Pool

understood what HRDC was requesting.

[¶18] Moreover, as a matter of FOAA procedure, when an agency plainly

is not interpreting a request to mean what the requester intends, further efforts

to clarify both the scope of the request and the completeness of the response

are to be encouraged before judicial remedies are invoked. To accept the Risk

Pool’s argument would likely spawn avoidable litigation by causing requesters

to file appeals prematurely when further dialogue might resolve

disagreements. Here, HRDC’s counsel’s July 2 letter pointing out that

“Kennebec County’s FOAA response thus far is not in compliance with the

FOAA” shows that HRDC did not interpret Ulmer’s June 21, 2021, message as a

final response. (Emphasis added.) The Risk Pool’s July 6, 2021, response to
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that letter stated that there were no other documents responsive to HRDC’s

request. It was that response that triggered the appeal deadline, and HRDC’s

complaint, filed on July 27, 2021, was therefore timely.

[¶19] The Risk Pool’s contention that HRDC’s amended complaint adding

the Risk Pool as a party should not relate back to the initial complaint is equally

unpersuasive. Maine Rule of Civil Procedure 15(a) allows for changes of parties

or the naming of parties. “An amended pleading relates back to the date of the

original pleading where the claim asserted in the amended pleading ‘arose out

of the conduct, transaction, or occurrence set forth or attempted to be set forth

in the original pleading.’” Frame v. Millinocket Reg’l Hosp., 2013 ME 104, ¶ 13,

82 A.3d 137 (quoting M.R. Civ. P. 15(c)(2)). The “relation back” provision of

Rule 15(c)(3) further provides:

An amendment of a pleading relates back to the date of the original
pleading when . . . (3) the amendment changes the party or the
naming of the party against whom a claim is asserted if . . . the party
to be brought in by amendment (A) has received such notice of the
institution of the action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or should have
known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party.

[¶20] The Risk Pool does not deny that it was aware of the action almost

as soon as it was brought and does not contend that the delay in its joinder

resulted in any prejudice. Instead, the Risk Pool argues that HRDC’s failure to
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name the Risk Pool was not a mistake and that HRDC unduly delayed moving

to amend its complaint to add the Risk Pool as a defendant. However, the Risk

Pool does not contend that HRDC knew, as of when it filed its initial complaint,

that the Risk Pool was separate from Kennebec County and the Maine County

Commissioners Association, and it does not proffer any reason other than a

mistake for HRDC’s initial failure to include the Risk Pool as a defendant. As to

delay, we have indicated that a party seeking leave to amend must act without

unreasonable delay once the party becomes aware of grounds for a motion to

amend. See John W. Goodwin, Inc. v. Fox, 642 A.2d 1339, 1341 (Me. 1994). Here,

HRDC filed its motion to add the Risk Pool as a defendant a week after the Maine

County Commissioners Association filed its answer identifying the Risk Pool as

a separate entity. The court did not err in concluding that the joinder related

back to HRDC’s timely initial filing.

B. The Award of Attorney Fees Based on a Finding of Bad Faith

[¶21] On appeal, the Risk Pool argues that the court erred in awarding

HRDC attorney fees based on the court’s finding that the Risk Pool acted in bad

faith in responding to HRDC’s FOAA request.2 See 1 M.R.S. § 409(4) (stating that

2 To be awarded attorney fees under FOAA, HRDC must have also been a “substantially prevailing

plaintiff.” 1 M.R.S. § 409(4) (2023). The Risk Pool has not appealed the court’s finding that it violated
FOAA or the order requiring the Risk Pool to disclose all the responsive documents in its possession.
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in an appeal from an agency’s refusal of a records request or failure to allow

inspection or copying of a record, “the court may award reasonable attorney’s

fees and litigation expenses to the substantially prevailing plaintiff . . . if the

court determines that the refusal . . . was committed in bad faith”). We review

de novo the court’s interpretation of the statute, and “we review the court’s

factual findings for clear error.” Blue Sky W., LLC v. Me. Revenue Servs., 2019

ME 137, ¶ 24, 215 A.3d 812. “We review a court’s award of attorney fees for an

abuse of discretion, mindful that the trial court is in the best position to observe

the unique nature and tenor of the litigation as it relates to a request for

attorney fees.” Wilmington Tr., N.A. v. Berry, 2020 ME 95, ¶ 21, 237 A.3d 167

(quotation marks omitted).

[¶22] In interpreting a statute, this Court “look[s] to the plain meaning

of the statute, interpreting its language to avoid absurd, illogical, or inconsistent

results and attempting to give all of its words meaning.” Jackson Lumber &

Millwork Co. v. Rockwell Homes, LLC, 2022 ME 4, ¶ 10, 266 A.3d 288. The plain

meaning of the language may be determined by its dictionary definition. Id.

See Citizens for a Strong N.H., Inc. v. Internal Revenue Serv., No. 14-cv-487-LM, 2016 U.S. Dist. LEXIS
128118, at *8-10, 2016 WL 5108035, at *3 (D.N.H. Sept. 20, 2016). We conclude that HRDC is a
substantially prevailing plaintiff, because HRDC demonstrated that the litigation was “necessary and
had a causative effect on the disclosure of the requested information.” Maynard v. Cent. Intel. Agency,
986 F.2d 547, 568 (1st Cir. 1993) (quotation marks omitted). Without court intervention, HRDC
would not have been able to obtain access to the documents it requested. See id. at 568-69.
15

¶ 13. If a statute is ambiguous, this Court may look to legislative intent and

legislative history. Id. ¶ 10.

[¶23] We have not previously construed the FOAA attorney fee

provision. Our starting point is in the purposes and framework of the statute.

In enacting FOAA, the Legislature mandated that the statute “shall be liberally

construed and applied to promote its underlying purposes.” 1 M.R.S. § 401.

“FOAA’s central purpose [is to ensure] the public’s right to hold the government

accountable.” Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, ¶ 32, 871 A.2d

523. In furtherance of that purpose, FOAA “establishes a general right of the

public to inspect and copy public records.” Doyle v. Town of Falmouth, 2014

ME 151, ¶ 8, 106 A.3d 1145; see 1 M.R.S. § 408-A. When an agency denies or

refuses a request or fails to allow access to a requested record, an aggrieved

party may “appeal” to the Superior Court. 1 M.R.S. § 409(1). Because a FOAA

“appeal” can include the taking of evidence, “although the process is described

statutorily as an appeal, the trial court actually conducts a trial de novo and

does not act in an appellate capacity.” Blue Sky W., LLC, 2019 ME 137, ¶ 24,

215 A.3d 812 (quotation marks omitted). “On such a challenge, the burden of

proof to demonstrate just and proper cause is on the agency that denied

inspection of the records.” Id. “If a court, after a review, with taking of
16

testimony and other evidence as determined necessary, determines such

refusal, denial, or failure was not for just and proper cause, the court shall enter

an order for disclosure.” 1 M.R.S. § 409(1).

[¶24] The Legislature did not include a definition of “bad faith” in the

FOAA statute,3 and we have not been previously called on to define the term for

purposes of FOAA. A legal dictionary defines the term as “[d]ishonesty of belief,

purpose, or motive.” Bad faith, Black’s Law Dictionary (11th ed. 2019). Our

jurisprudence on attorney fee awards provides guidance on what can

constitute bad faith. In general, “attorney fees may not be awarded as a

sanction in the absence of significant bad faith on the part of a litigant or his

agents,” Linscott v. Foy, 1998 ME 206, ¶ 17, 716 A.2d 1017. In Linscott, we

upheld a fee award, noting that a litigant’s “obstinate refusal to comply with a

valid order” of court was “undertaken in bad faith” and was “abusive of the

court and other parties.” Id. ¶ 18. In Cimenian v. Lumb, we upheld a fee award,

3Likewise, the legislation that preceded the statute did not provide any definition for bad faith
but noted that the Superior Court had discretion to award attorney fees. J. Standing Comm. on
Judiciary, Legis. Doc. 679, 124th Leg., 1st Sess., at 21 (Me. 2009). Although we look to the federal
Freedom of Information Act (FOIA) for guidance in interpreting the Maine FOAA, Campbell v. Town
of Machias, 661 A.2d 1133, 1136 (Me. 1995), the term “bad faith” does not appear in the federal
statute. FOIA permits courts to award attorney fees against the Government if the requesting party
“has substantially prevailed.” 5 U.S.C.A. § 552(a)(4)(E)(i) (2023) (Westlaw through Pub. L. No.
118-10) (“The court may assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case under this section in which the complainant has
substantially prevailed.”).
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observing that “bringing an action without ‘even the slightest merit,’ [and]

testifying untruthfully about matters relevant to the issues being litigated is bad

faith.” 2008 ME 107, ¶ 13, 951 A.2d 817; cf. Aubuchon v. Blaisdell, 2023 ME 5,

¶¶ 16-20, 288 A.3d 805 (awarding attorney fees as a sanction for a “frivolous

and contumacious appeal”). These decisions convey that bad faith in litigation

can consist of dishonest conduct, but it can also include intentional acts or

omissions that thwart the legal process and cause harm to other parties to the

action.

[¶25] A similar analysis applies to identifying bad faith in the context of

FOAA. The legislative mandate for the FOAA to be “liberally construed and

applied to promote its underlying purposes,” 1 M.R.S. § 401, applies as

forcefully to responding agencies as it does to courts. An agency’s duty to apply

FOAA in a manner that promotes the Act’s purposes calls for the agency to

respond to a FOAA request with the purpose of facilitating the requester’s

timely access to the requested records unless the agency has a good-faith basis

for withholding or delaying access. An agency’s failure to respond does not in

itself establish bad faith. See Campbell v. Town of Machias, 661 A.2d 1133, 1135

(Me. 1995) (“[T]he failure to respond to a Maine Freedom of Access request

within the time frame set forth in the statute does not constitute a waiver of the
18

right to withhold the documents at issue. Such a failure to respond is deemed

a denial of the request for the documents.”). On the other hand, proof that an

agency has acted in the opposite manner to facilitating access to its public

records—by responding to a request dishonestly, for example, or by

deliberately and affirmatively impeding or thwarting valid requests for

access—may be sufficient to prove bad faith.

[¶26] Here, HRDC’s June 18, 2021, FOAA request was quite specific:

[A]ny documents showing payments disbursed to Jonathan
Afanador and/or attorney John Wall[] by Kennebec County, Nathan
Willhoite, and/or the Maine County Commissioners Association
Self-Funded Risk Management Pool from January 1, 2021 to
present. This includes but is not limited to payment
documentation related to the following case: Afanador v. Kennebec
County Case No: 1:20-cv-00235-JDL.

[¶27] At the hearing, the following exchange occurred between Ulmer on

behalf of the Risk Pool and HRDC’s counsel:

Q : You have a claim file for the Afanador matter?
A: That’s correct.
Q: And the claim file has material related to the settlement of the
Afanador matter?
A: Yes.
Q: Including the amount that was paid to Mr. Afanador?
A: Yes.
Q: And you didn’t turn over any of those documents in that claim
file, did you?
A: Those documents were not requested in the context of this
case.
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[¶28] In a previous series of questions, Ulmer was asked whether the

Risk Pool had ever provided HRDC with copies of cancelled checks, payment

receipts, ledgers, or “any documents showing how much money was paid to

Mr. Afanador,” and he answered each question by saying that such documents

had never been requested. When HRDC asked, “You have documents like that

in your possession, though, don’t you?” Ulmer answered, “I have documents

that would reflect the payment.”

[¶29] The Risk Pool appears to proffer two reasons for failing to provide

the documents in its possession reflecting payment of the settlement, neither

of which withstands even cursory examination. First, the Risk Pool claims that

it thought HRDC wanted a settlement agreement that showed the dollar amount

of the settlement and that it did not produce anything because there is no such

document. HRDC’s FOAA request, however, was not for a settlement

agreement; it sought “any documents showing payments.” When the Risk Pool

initially responded by mentioning the settlement agreement that HRDC had

already obtained, HRDC reiterated its original request by asking, “Do you have

any documentation that shows the $30,000 amount?” The Risk Pool ignored

this reiteration of HRDC’s already clear request and then ignored a subsequent

reiteration in the ACLU of Maine’s July 2, 2021, letter, which asked for
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documents reflecting the settlement amount, such as “accounting records, a

copy of a cover letter that was sent with payment, emails between individuals

in county government and officials in the sheriff’s office, or memoranda

suggesting that officers not engage in whatever conduct led to the filing of the

litigation in the first place.” Instead of providing the “documents that would

reflect the payment” that Ulmer testified were in his claim file, the Risk Pool’s

July 6, 2021, response to HRDC’s letter mischaracterized HRDC’s FOAA request

as being for a release or agreement: “[I]t is my understanding that the signed

release provided to [HRDC] by [Kennebec County] is the only settlement

release document and I also advised [HRDC] of the settlement amount.”

[¶30] The Risk Pool’s second explanation for producing nothing in

response to HRDC’s request appears to be that HRDC did not request the

payment documents in Ulmer’s claim file in terms specific enough to suit the

Risk Pool. Ulmer testified that his claim file included documents reflecting

payment, yet he testified that cancelled checks, payment receipts, and

“documents showing how much money was paid to Mr. Afanador” were never

requested. HRDC obviously had no way to know whether the settlement

amount was paid by check, wire transfer, credit or debit card, an online

payment platform, or some other method of payment. HRDC’s request for “any
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documents showing payments disbursed to Jonathan Afanador” and “any

documentation” clearly covered documents in the various categories that the

Risk Pool claims were not requested.

[¶31] Instead of facilitating HRDC’s access to the responsive material in

the Risk Pool’s possession, the Risk Pool did the very opposite, while

pretending to facilitate: it mischaracterized HRDC’s FOAA request as being

different and narrower than it was, ignored HRDC’s efforts to correct the

mischaracterization, and deliberately withheld access to documents in its

possession that clearly were responsive to the request and should have been

disclosed. As we learned at oral argument, although the court ordered the Risk

Pool to provide HRDC with the responsive documents, it still has not done so

because it continues to maintain that 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.

The entry is:

Judgment affirmed.
22

Jeffrey T. Edwards, Esq. (orally), Preti Flaherty Beliveau & Pachios LLP,
Portland, for appellant Maine County Commissioners Association Self-Funded
Risk Management Pool

Carol J. Garvan, Esq. (orally), Zachary L. Heiden, Esq., and Anahita D. Sotoohi,
Esq., American Civil Liberties Union of Maine Foundation, Portland; and Loree
Stark, Esq., Human Rights Defense Center, Boynton Beach, Florida, for appellee
Human Rights Defense Center

Shelby Leighton, Esq., and Jaqueline Aranda Osorno, Esq., Public Justice,
Washington, D.C., for amici curiae Maine Association of Criminal Defense
Lawyers, Maine Freedom of Information Coalition, Maine Press Association,
New England First Amendment Coalition, and Public Justice

Kennebec County Superior Court docket number CV-2021-131
FOR CLERK REFERENCE ONLY