The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: AP;-07-.fO. ../
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BLETHEN MAINE NEWSPAPERS INC
Plaintiff,
ORDER ON PLAINTIFF'S
v. APPEAL FROM DENIAL OF
ACCESS TO PUBLIC
PROCEEDINGS PURSUANT
TO 1 M.R.S.A. § 409 AND
PORTLAND SCHOOL COMMITTEE, M.R. Civ. P BOB
Defendant.
This matter comes before the Court on an appeal under Maine's Freedom
of Access Act (1 M.R.S. §§401-410 (2007)) by Plaintiff Blethen Maine Newspapers,
Inc. d/b/ a Portland Press Herald and Maine Sunday Telegram ("Portland Press
Herald") pursuant to M.R.Civ.P. 80B, seeking preliminary and permanent
injunctive relief, a declaratory judgment and requesting an order compelling
disclosure of any public records relating to the executive session held on July 25,
2007 against Defendant, Portland School Committee ("School Committee"). This
appeal was the subject of a testimonial hearing on August 17, 2007.
BACKGROUND
The facts of this case are largely undisputed. On July 25, 2007 the School
Committee held a forty-five minute, closed, executive session ("Executive
Session"). The agenda for the Executive Session stated that the session was to
1
"consult with counsel and consider the duties of central office staff with respect
to the department's financial management."l
The School Committee asserts that only four documents were generated at
the Executive Session: 1) The "Superintendent's Outline," which is a two page
document outlining Superintendent O'Connor's management style; 2) the
personal notes of Committee Member Ellen Alcorn, 3) the personal notes of
Committee Member Lori Gramlich; and 4) the notes of School Committee
Attorney Pringle.
The day following the Executive Session, the Portland Press Herald
requested, through counsel, all public records regarding the Executive Session.
The School Committee responded by agreeing to disclose any "appropriate
documents ...within a reasonable period of time." On July 30, 2007, the School
Committee provided the Portland Press Herald with "a written description of the
notes" taken at the Executive Session "and confirmation that [the notes] would
not be disclosed."2 On or about July 30, 2007, Richard Paulson, Jr., finance
director of the Portland School Department, submitted his resignation.
On July 27, 2007, two days after the Executive Session, one of the School
Committee members posted a comment on the Portland Press Herald website
which indicated to the Portland Press Herald that discussions during the
Executive Session were unlawful under the FOAA.:I The Portland Press Herald
1 The School Committee reports that eight School Committee members were present at
the Executive Session as well as Attorney Pringle and three school administrators
(Superintendent of Schools Mary Jo O'Connor, finance director Richard Paules, and
Director of Human Resources, Joline Hart).
2 The Portland Press Herald asserts the response came on July 31, 2007; however the date
is not critical.
:I School Committee member Benjamin Meiklejohn posted the following comment on the
Portland Press Herald website: "Going into the most recent executive session, I would
2
had the School Committee served with a Complaint for Summary Appeal under
the FOAA on July 31,2007 seeking injunctive and declaratory relief as well as
access to public records from the Executive Session, which was filed that day
with this Court.
The Portland Press Herald contends that the School Committee held the
Executive Session in direct contravention of the FOAA and that Portland School
District budgetary issues were discussed during the Executive Session. They
further argue that the School Committee has failed to meet its burden that the
notes taken at the meeting fit within narrowly construed exceptions under the
FOAA and therefore all documents must be disclosed as public records.
The School Committee contends that the Executive Session was
permissible under the FOAA. They assert that, if the Executive Session was
permissible, all documents prepared for or during the meetings are not public
II
records." 4 The School Committee further contends that any notes taken by
committee members are personal notes, which are beyond the scope of public
records as defined by the FOAA, and that notes taken by Attorney Pringle are
excepted as the work product of the School Committee attorney.
Thus this Court is presented with two issues. First, was the Executive
Session permissible under the FOAA because discussions in the Executive
Session fell within a permitted deliberation as defined by 1 M.R.S.A. § 405(6)(A)
say that such a reasonable expectation [of damage to reputation or violation of a right to
privacy] most certainly did exist. Having sat through it however, I no longer feel that
said expectation exists, and would oppose future motions to enter executive session
unless new factors present such a 'reasonable expectation.'"
4 The Portland Press Herald argues that the definition of "public record" should be
independent of the form of meeting for which the record is prepared. To do otherwise,
it is argued, would create an "implied exception" under the FOAA, contrary to it's
stated purpose.
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or (E)? Second, are the notes that were taken at the Executive Session by School
Committee members and Attorney Pringle privileged or excepted under 1
M.R.S.A. § 402(3)7
DISCUSSION
1. Under 1 M.R.S.A. §§ 401-410 ("FOAA"), was the Executive Session held by
the School Committee a permissible deliberation as defined by 1 M.R.S.A.
§ 405(6) (A) or (E)7
The FOAA was enacted to ensure that public proceedings5 be conducted
openly with full public access to the meetings and to public records of those
meetings. 1 M.R.S. § 403 (2007). The intent of the legislature was to facilitate
"the conduct of the people's business." 1 M.R.S. § 401 (2007). The Law Court
articulated the FOAA's "basic purpose" as the protection of "the public's right
to obtain information about their government and governmental policies, to
know what their government is doing, and to prevent the mischief of arbitrary
and self-serving governmental action." Cook v. Lisbon Sch. Comm., 682 A.2d 672,
677 (Me. 1996) (citing 1 M.R.S.A. §401 (1989)). In furtherance of that intent the
legislature declared that the FOAA "shall be liberally construed and applied to
promote its underlying purposes and policies...." 1 M.R.S. § 401.
a. Permitted Deliberations under the FOAA.
Narrow exceptions, called executive sessions, exist to this liberal public
access policy. See 1 M.RS. § 405 (2007). The executive sessions are specifically
limited and may "not defeat the purposes of" the statute. 1 M.R.S. § 405(1).
Moreovec the exceptions are to be strictly construed by the court. Bangor Publ'g
5 Neither party contests that the School Committee meetings are within the scope of the
FOAA.
4
Co. v. City of Bangor, 544 A.2d 733, 736 (Me. 1988). In addition, the legislature
statutorily limited the executive sessions by subjecting them to specific
procedures. See 1 M.R.S. § 405. For example, the content of an executive session
must be stated in advance and the scope of the session may not exceed that
stated content. 1 M.R.S. § 405(4) & (5). Further, the content is expressly limited
to the matters set forth in Section 405(6) of the statute. See 1 M.R.S. § 405(6).
At issue in this case are exceptions set forth in sub-sections 405(6)(A) and
(E). Id. Under Section 405(6)(A), an executive session may discuss the dismissal
or resignation of a public employee, but that discussion can only occur in an
executive session if "public discussion could be reasonably expected to cause
damage to the reputation or the individual's right to privacy would be violated."
1 M.R.S. § 405(6)(A)(1) (emphasis added).
However, Section 405(6)(A) specifically states that subsection A does not
apply to discussions ofa budget or budget proposal. 1 M.R.S.A. § 405(6)(A).
(emphasis added). The Law Court has recently reiterated that "[w]hen
interpreting a statute, we accord its words their plain meaning." Cyr v.
Madawaska Sch. Dept., 2007 ME 28, <[ 10, 916 A.2d 967, 970 (citing Bangor Publ'g
Co, 544 A.2d at 736). "If the statute's meaning is clear, we do not look beyond its
words, unless the result is illogical or absurd." Id. (quoting S. Portland Police Patrol
Ass'n v. City of S. Portland, 2006 ME 55, <[ 5, 896 A.2d 960, 963). Thus a permitted
deliberation under §405(6) (A) would be any deliberation regarding personnel
issues that the School Committee can show could reasonably be expected to
damage the reputation of the individual discussed or invade that persons
privacy but budgetary discussions are strictly prohibited.
5
Under Section 405(6)(E) an executive session may contain consultations
with the agency's attorney where that consultation would fall within the attorney
client privilege and public access to that knowledge would put the agency"at a
substantial disadvantage." 1 M.RS. § 405(6)(E). However, "the mere presence of
an attorney cannot be used to circumvent the FOAA's open meeting
requirement." Underwood v. City of Presque Isle, 1998 ME 166, err 16, 715 A.2d 148,
153.
For example, the Law Court held that the scope of the attorney client
privilege under Section 405(6) (E) included discussions with an attorney
regarding legal rights and duties but specifically did not authorize deliberations
on the merits of an issue. Id. err 15, 715 A.2d. at 153. The Underwood Court
considered the permissibility of deliberations of a town zoning board. See Id.
While recognizing that it may be difficult for a public body to draw the line
between permissible and impermissible deliberations, the Court took the
opportunity to
remind public boards and agencies of the Legislature's declaration
in the Freedom of Access Act that 'their deliberations be conducted
openly,' and that the Act 'be liberally construed ... to promote its
underlying purposes..'
Id. c:rr 16, 715 A.2d at 153 (quoting M.R.S.A. § 401). Thus the Law Court has
construed section 405(6)(E) narrowly to permit deliberations with an attorney in
executive session only regarding legal rights and duties, not the merits of the
issues.
b. Burden of Production under the FOAA.
With respect to burden of production, "[t]he party alleging a violation of
the Act, [ ] has the burden of producing probative evidence before the Superior
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Court sufficient to support a finding that the Act has been violated." Chase v.
Town of Machiasport, 1998 ME 60, CJ[9, 721 A.2d 636,639. After the initial burden is
met, the public body then has the burden to show that its executive session
"complied with an exception to the FOAA's open meeting requirement."
Underwood, 1998 ME 166, CJ[ 19, 715 A.2d at 153. This Court will require
disclosure if it finds that the "denial was not for just and proper cause." 1
MoR.S.A. §409(l).
In this case the Portland Press Herald presented evidence that a member
of the School Committee posted information on the paper's website that
questioned the validity of the Executive Session under the FOAA open meeting
requirement. Thus the burden then shifted to the School Committee to show that
the Executive Session was lawful under the FOAA.
At hearing, the School Committee presented testimony regarding
deliberations in the Executive Session. Though this Court accepts that some of
the deliberations were regarding personnel issues and thus permissible, it
concludes that some of the deliberations were regarding the School Committee
budget and were thus impermissible under the FOAA.
2. Are the Notes That Were Taken at the Executive Session by School
Committee Members and the School Committee Attorney Public
Records Within the Meaning of 1 M.R.S.A. § 402(3)?
As a general rule, under the FOAA, records of public proceedings should
be open to public inspection. 1 M.R.S. §40l. "Except as otherwise provided by
statute, every person shall have the right to inspect and copy any public record
during the regular business hours of the custodian or location of such record .. 0 0
" 1 M.R.S. §408 (2007). Public Records are defined as:
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Any written, printed or graphic matter or any mechanical or
electronic data compilation from which infonnation can be
obtained, directly or after translation into a form susceptible of
visual or aural comprehension, that is in the possession or custody of
an agency or public official of this State or any of its political
subdivisions and 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. ...
1 M.R.S. §402(3). (emphasis added). Exceptions to the definition are listed in
Section 402, with those relevant to this case being: A) "Records that have been
designated confidential by statute; and B) Records that would be within the
scope of a privilege against discovery or use as evidence recognized by the courts
of this State in civil or criminal trials if the records or inspection thereof were
sought in the course of a court proceeding...." Id.
As noted above, these exceptions should be strictly construed, Bangor
Publ'g Co, 544 A.2d at 736, in service to the FOAA's mandate of liberal
construction, see 1 M.R.S. § 401. Should an exception under the FOAA apply,
those portions of a public record that are deemed confidential may be redacted.
Cyr, 2007 ME 28, <JI 11, 916 A.2d at 970.
a. Are Notes Prepared Solely for the Personal Use of School
Committee Members Excepted From the Definition of Public
Records Under the FOAA?
The Law Court has not specifically ruled on this issue. It has stated,
however, that:
In construing the term "public records" we "must look first
and primarily at the language of the provision." It is apparent that
the legislature sought to avoid uncertainty by enacting a very broad, all
encompassing definition subject only to specific exceptions. The statute
was designed to avoid restrictive common law definitions of public
records. It declares as a matter of public policy that records of
8
public action shall be open to public inspection. It leaves little
room for qualification or restriction.
Wiggins v. McDevitt, 473 A.2d 420, 422 (Me. 1984) (quoting Moffett v. City of
Portland, 400 A.2d 340, 345 (Me. 1979))(emphasis added). In that case the Law
Court considered a request for disclosure of personal copies of tax records held
by a deputy sheriff. Wiggins, 473 A.2d at 420. The Court held that "(if] a tax
return possessed by a public official contains information relating to the
transaction of public business the return is a public record unless it falls within
one of the statutory exceptions." Id. at 422. Similarly though not binding, the
Superior Court deemed personal notes public records when they"exist to
memorialize the content of any illegal portions of the executive session ... " Guy
Gannet Publishing Co. v. City ofPortland, CUMSC- CV-92-858 (Me. Super. Ct.,
Cumbo Cty., Sep. 24, 1992) (Lipez, n.
The School Committee asserts that records created "solely for the personal
use of the School Committee members who took them ... do not fall within the
definition of 'public records'" under the FOAA. The Portland Press Herald
counters that the School Committee has failed to innumerate an exception under
the definition of "public record" and thus, given the legislative mandate of
liberal construction, personal notes should not be excepted. This Court finds
Plaintiff's argument more compelling.
The School Committee relies on case law from other jurisdictions in
support of its argument, specifically the Federal Freedom of Information Act
(FFOIA) and freedom of access acts from New Hampshire, Ohio and Utah.
Reliance on New Hampshire law is not persuasive. The New Hampshire
Right -to-Know Law, though similar in scope to the FOAA, lacks a specific
9
definition for "public records," requires that minutes be taken at all meetings,
including executive sessions, and lacks the legislative mandate of liberal
construction found in section 401 of the FOAA. See N.H. Rev. Stat. Ann. § 91-A
(2007).
Further, the specific case relied upon by the School Commi ttee sets forth
the proposition that a personal recording made by a public official at a public
meeting is exempt from disclosure because itwas not created in connection with
the public meeting. Brent v. Paquette, 567 A.2d 976, 980 (N.H. 1989). In that case a
public official made a recording of a hearing for the purpose of a potential future
defense to defamation, the recording was not made in connection with the work
of the public agency. Id. The New Hampshire Supreme Court concluded that the
public was not entitled to records that did not have an official purpose. Id.
An analysis under Ohio's public access law is also unpersuasive. See Ohio
Rev. Code Ann. § 199.43 (2007). The Ohio statute defines "public record" as
those records "kept by any public office... If Id. This definition is more narrow
than the FOAA which includes documents "in the possession of ... public
official[s]." 1 M.R.S. 402(3).
In contrast, the Utah public access law has a broad definition of "public
records" however the statute contains none of the explicit public policy language
contained in the FOAA. See Utah Code Ann. § 63-2-201. Further, in the case
relied upon by the School Committee, the Supreme Court of Utah found that a
clerk's untranscribed notes, which were subsequently incorporated into the
minutes of the public office, non-public records. Conover v. Board of Ed. OfNebo
Sch. Dist., 267 P.2d 768, 770 (Ut. 1954). The Court stated however that:
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[T]he more pertinent cases are found ... whenever a written record of a
transaction of a public officer in his office is a convenient and appropriate
mode of discharging the duties of his office, and is kept by him as such,
whether required by express provision of law or not, such a record is a
public record.
Id.
The Federal Freedom of Information Act is likewise inapplicable. See 5
u.s.es. § 552 (2007). That statute is applicable to federal agency records and
specifically sets forth which records the public should have access to, in contrast
to the broad definition of "public records" under the FOAA. Id.
In this case the private notes of committee members would fall
under the FOAA broad definition of public records if those notes
"contain[] information relating to the transaction of public or
governmental business.... ." Quoting 1 M.R.S. § 402(3). While this Court
recognizes the right of committee members to have their private thoughts,
and recognizes that the actual notes in this case are scant and minimally
illustrative of Executive Session deliberations, these notes (and those of
Attorney Pringle) are the only record of the Executive Session. Should the
legislature choose to create an exception under the FOAA for private
notes, it may do so. Until that time the law and plainly stated Legislative
intent lead this Court to conclude that the notes are a public record.
b. Were the Notes Taken by Attorney Pringle "Work Product" and
Therefore Privileged Writings Under the FOAA?
Documents that would otherwise be privileged in court are excepted
under the FOAA. 1 M.R.S. § 402(3)(B). However, the Law Court has stated that
[i]n construing FOAA's statutory provisions, we will consider the
underlying public policy and rules of construction expressed by the
Legislature in 1 M.R.S. § 401. The public policy guiding the
11
interpretation of FOAA is the Legislature's declaration that 'public
proceedings exist to aid in the conduct of the people's business.'
Citizens Commc'ns Co. v. Attorney Gen.; Societe Colas, S.A. v. Dept.. of the Attorney
Gen., 2007 ME 114, <j[ 9, _ A.2d _ (quoting 1 M.R.S. § 401). Further, "[t]he mere
presence of an attorney cannot be used to circumvent the F[O]AA's open
meeting requirement. Underwood, 1998 ME 166, <j[ 16, 715 A.2d at 153 (citations
omitted).
The School Committee contends that notes taken by Attorney Pringle are
privileged under the work product doctrine. A document is protected under the
work product doctrine if (1) the document was created with a subjective
anticipation of litigation; (2) the subjective anticipation of litigation was
reasonable; and (3) the document is "of a type that can be considered work
product." Springfield Terminal Ry. Co. v. Dep't of Transp., 2000 ME 126, <j[<j[ 16-17,
754 A.2d 353, 358. The party seeking to protect documents under the work
product doctrine has the burden of establishing that those documents are within
the scope of the doctrine. [d. <j[ 15, 754 A.2d at 358 (citing M.R.Civ.P. 26(b) (3)).
The burden then shifts to the party seeking disclosure to "demonstrate that it has
substantial need of the materials. [d.
The key issue with respect to the application of the work product doctrine
in this case is whether Attorney Pringle's notes were prepared with a
subjectively reasonable anticipation of litigation. The School Committee claims
that they were because of the "executive session of the School Committee in the
midst of a budget deficit."
The burden is on the party seeking to prevent disclosure to demonstrate
that its expectation of litigation is reasonable. [d. <IT 19, 754 A.2d. at 358.
12
However, "[a] remote possibility of litigation is insufficient. ..." Id. (citation
omitted). The test for reasonableness is that "[t]he document must be prepared
because of the prospect of litigation when the preparer faces an actual claim or
potential claim following an actual event or series of events that reasonably
could result in litigation." Id. (citing National Union Fire Ins. Co. v. Murray Sheet
Metal Co., Inc., 967 F.2d 980,984 (4th Cir. 1992)).
The Springfield Court considered documents prepared by the Department
of Transportation in conjunction with a dispute over the use of certain railroad
tracks near Lewiston, Maine and a request under the FOAA for release of
documents pertaining to that dispute. See Springfield, 2000 ME 126, 754 A.2d. 353.
That court found that the work product doctrine did apply with respect to
certain documents prepared regarding an oral agreement made between the
Department of Transportation and Guilford Transportation Industries, Inc.
because the Department's anticipation of litigation was deemed reasonable. Id.
<JI. 22,754 A.2d. at 359.
In this case the School Committee asserts the work product doctrine based
on the possibility of litigation that may result from the Executive Session. The
potential litigation in Springfield centered on a specific dispute with the railroads
and the Deparbnent of Transportation. See Id.
In light of the test of a reasonable anticipation of litigation ("when the
preparer faces an actual claim or potential claim following an actual event or
series of events that reasonably could result in litigation." Id. <JI. 19, 754 A.2d. at
358), the anticipated litigation in this case is too general. This conclusion is
based on the mandate to construe exceptions under the FOAA narrowly, id. <JI. 8,
754 A.2d. at 356, which is reiterated throughout FOAA case law, see generally,
13
Cyr, 2007 ME 28, 916 A.2d 967; Underwood, 1998 ME 166, 715 A.2d; Springfield,
2000 ME 126, 754 A.2d 353, and the more specific anticipation of litigation
considered in Springfield. Id. To allow the work product doctrine privilege
under such a general anticipation of litigation would circumvent the FOAA
because it would open the door to Executive Sessions where the only record of
the session exists in attorney notes.
Thus, this Court will consider Attorney Pringle's notes and redact those
portions that are privileged under 1 M.R.S. §§405(6) (A) and (E) and § 402(3) (B)
(annexed hereto as Exhibit A).
c. Is the School Superintendent's Management Philosophy
Statement a Public Record?
The School Committee contends that the superintendent's management
philosophy document, distributed at the meeting should remain confidential.
The School Committee asserts that if the Executive Session is found lawful, then
all documents of or pertaining to that Session are privileged. The Portland Press
Herald asserts that such a conclusion would undermine the purpose of the
FOAA, which sets forth specific exceptions to its broad public access rule.
At hearing the School Committee did not meet its burden to show that
such a broad exception exists under the FOAA. Further, the superintendent
testified that there was nothing in the document that was damaging to her
reputation (transcript p. 46), thus precluding an exception under 1 M.R.S. §
405(6) (A) (1). See 1 M.R.S. § 405(6) (A) (1).
This Court thus holds that Superintendent O'Connor's management
philosophy document is a public record under the FOAA.
14
The entry is:
Those portions of the Executive Session that specifically dealt with
budgetary deliberations are held improper under the FOAA. All notes
taken in the Executive Session have been submitted to this Court for in
camera review and those notes that reflect improper deliberations will be
released as public records.
Specifically, the School Committee has provided this Court with transcribed
notes taken by Attorney Pringle. Those notes have been reviewed and
redacted and are attached hereto as Exhibit A. The School Committee also
provided the private notes of Committee Member Ellen Alcorn. Those
notes are deemed a public record and are attached hereto as Exhibit B. The
personal notes of Committee Member Lori Gramlich are likewise deemed a
public record and are attached hereto as Exhibit C. The management
philosophy statement prepared by Superintendent O'Connor and made
available by the School Committee is deemed a public record and is
attached hereto as Exhibit D.
All of the aforementioned documents shall be impo
up to twenty-one (21) days pending appeal bye'
ensue, the documents deemed "public reco s"
by this Court.
15
COURTS
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JONATHAN PIPER ESQ
SIGMUND SCHULTZ ESQ
PRETI FLAHERTY BELIVEAU PACHIOS & HALEY
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