# Maine Center for Public Reporting v. York County

> Superior Court of Maine · September 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10812646

## Case

- **Court:** Superior Court of Maine
- **Decided:** September 6, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Julia M. Lipez
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. CY-21-141

)
THE MAINE CENTER FOR PUBLIC )
INTEREST REPORTING,
Plaintiff, )

) ORDER ON PLAINTIFF’S

Vv. ) FOAA APPEAL

)
YORK COUNTY, )
)
Defendant. )
)

On June 25, 2021, Samantha Hogan, a reporter employed by the plaintiff,
The Maine Center for Public Interest Reporting (the “Center’), submitted a request
pursuant to the Freedom of Access Act (“FOAA”), 1 M.R.S. § 400 et seq., to York
County seeking records related to the County’s potential practice of recording
privileged telephone calls between jail inmates and their attorneys. York County
denied the Center’s request in full. The Center then appealed the denial to this
court. See 1 M.R.S. § 409(1).

Since the filing of this action, York County has produced many of the records
sought by the Center. However, one category of records, known as “Call Detail
Reports,” has yet to be disclosed. The issue before the court is whether Call Detail
Reports of attorney-inmate calls constitute “public records” as that term is defined
under FOAA. For the reasons below, the court concludes that the records satisfy

that definition and orders disclosure accordingly.
BACKGROUND

York County Jail’s Call Management System. York County Jail, along with

several other jails around the State, contracts with a private company, Securus
Technologies, Inc. (“Securus”), to provide telephone services to inmates. J.S.F. 4 11.)
In most cases, inmates must use Securus’s call management system, the Secure
Call Platform, to speak with their attorneys and others outside the jail. J.S.F.
(14, 21. Collect calls made by inmates are charged at per-minute rates based on
prices negotiated between York County and Securus. J.S.F. 4] 25. York County
receives commission payments from Securus that are based in part on completed
collect calls made through the Secure Call Platform. J.S.F. 24. Inmate-attorney
calls are among the calls from which commission payments may be collected. Id.
The Secure Call Platform records telephone calls by default. J.S.F. 4] 14-19.
Each call is prefaced with a warning that the call is subject to monitoring and
recording. J.S.F. §{] 22-23.2 The platform, however, includes a feature that allows
York County officials to mark specific telephone numbers as “private.” J.S.F. 7 14-
19. Ifa number is marked as “private,” the Secure Call Platform does not record the
call. Id. When York County executed its contract with Securus in 2015, the
telephone numbers of various criminal defense attorneys were inputted and marked

as private within the system. J.S.F. 411, 16.

1 Citations are to the Joint Stipulations of Fact (“J.S.F.”) submitted by the
parties.

2 In August 2020, an additional warning was added that states: “[I]f you are
an attorney, hang up and dial 1-800-844-8561, after this, the call is subject to
monitoring and recording.” J.S.F. 4 23.
Under the contract, designated York County employees may access the
Secure Call Platform, including Call Detail Reports (“CDRs”). J.S.F. ¥ 36; Ex. C at
2. CDRs do not capture the contents of the calls recorded by the platform, but
rather, contain certain metadata associated with inmate calls. J.S.F. [4] 32-35.
Specifically, CDRs indicate whether an inmate’s call was recorded; the name of the
inmate and telephone number dialed; the date and time of the call; and the amount
charged for the call. J.S.F. (32-34; Ex. E.

Using Securus’s system, designated York County employees may export data
contained in CDRs into a spreadsheet. J.S.F. {| 38. The system can generate CDRs
limited to specific telephone numbers. See J.S.F. 4] 28, 37-38.4

In response to the Center’s various FOAA requests, Androscoggin, Aroostook,
Franklin, Kennebec, and Penobscot Counties produced the requested CDRs without

litigation. J.S.F. | 27. An example of such a record may be found in the CDRs

3 An “X” in the “Priv” column (see infra pg. 4) means that the telephone
number called was marked private and hence, the call was not recorded. The
absence of an “X” in the “Priv” column means that the telephone number called was
not marked private and hence, the call was recorded. J.S.F. { 33.

4 Designated York County employees may also use the Secure Call Platform
to play and download recordings of calls. J.S.F. 40. The system automatically
indicates whether a York County employee accessed an inmate call to “download,”
“save to folder,” “burn to CD,” “monitor,” or “playback.” J.S.F. { 41. The reports
documenting this information are known as “Audit Log Reports.” Jd. York County
produced records in response to the Center’s request for Audit Log Reports. Those
records revealed one instance where an employee burned an attorney call to a CD
and another instance where an attorney call was “saved to folder.” J.S.F. 4 40, 44.
The records did not indicate that the calls were listened to. J.S.F. | 44.
produced by Kennebec County, which appear in Exhibit E and are reproduced in

part below:

CT Pee CU eect cc) OR OR Be a ee CU en AS) Rees CLUB EUR UC Cee Rd
2076208254 flocal 2015-01.02 08:36:47 52019-01.02 08:37: 69; 19206 192051979 ROBERT PERKINS Direct Bill (Complete Investigator Pro Mapping Errot XIN N No we
20777 2019-01-02 10:11 OL17551, [179511985 SHAWN LGGETIO Debit locomplete__iInvestigator Pro Mapping Cirot aN x 0 a
2076233731 [local 2019-01-02 10:32; BOK 19212 1192121964 PHIL? AUSSIERE Debit Complete Investigator Pro Mapping Erior N 1,62 0.34
2077738001, 2019-01-07 12:15; [12186 1123861989 | ERIC BARD ‘Instant Pay-Account Activator incomplete 'FCC2 Not Completed (Catt ot Accepted) NO i
2077738001 2019-01-02 13:07:47 & QiN2186 112853989 EAIC BARD HInslant Pay-Accounl Activator Incomplete [FCCZ Not Completed [Calt Not Accepied) R
2076233731 |Local 2019-01-02 13:14:25 0;12186 1121851989 EAI BARD Instant Pay lacomptete —_clnvestigator Pro Mapping Error a
2076226161 {Loca 2019-01-02 13:26:38 G:2148 (21481981 STEPHEN DINGUS Debit Incomplete Insufficient Funds i 0 9

Local 2019-01-02 13:27:03 GiT148 = (21481981 STEPHEN DINGUS Instant Pay Complete Calter Hang yp i
11076268234 [Lost 2019-0102 13:23 327|19206 [192661979 ROBERT PERKINS Direct Bil Complete jInvestigator Pro Mapping Ctror N
207, 2019-05-02 14:58: Q)A7551_ 1175512985 SHAWN LGGETTO Debit Incomplete Caller Hang up K 0 o
2077 taflntraslate [2019-01-03 08:37:25, 0127551. [175511985 SHAWN liscerto Debit Incomplete [investigator Pro Mapping Error N o Qo
20777 2019-01-03 9:32.06 DATISSL [175511985 SHAWN. UGGETTO Debit Incomplete —_jlavestigator Pro Mapping Error N 0: 0;
207. ft [2039-03-03 10:48:52 :2019-01-03 10:50:54 QUEPSS1 [175513985 SHAWN LIGGETTO Debit Incomplete Investigator Pro Mapping Error N o 6
20777 2019-01-03 11:40:04 [2019-01-03 11:41:56 O1N7551 |Y75541995 SHAWR. LIGGETTO Debit incomplete [Caller Hang up N o: a
2019-01-03 12:32:34 Gl243q 128301955 jf. GEORGE BROWNING Debit incomplete — Caller Hang up 4 o 0
2076233731 jlocal 2029-03-03 13:57:00 0139212 1192123964 PHILIP BUSSERE Debit Incomplete _jlnvestigator Pro Mapping Error N Oo q
2077738001 {Intratata/t 2029-01-03 14:43:44 OF12186 1121861989 ERIC BARD Debit Incomplete ‘Insufficient Funds N 0: Q
1207738001 2019-01-03 14:48:19 9132186 |121861989 ERIC BARD Inslant Pay-Acc | FCC2 Nat Completed [Call Not Accepted) 8
2076233731 2019-01-03 14:47:53 Oi12486 [123861989 TRIC BARD tnstant Pay Incomplete _ ilnvestigator Pro Mapping Error N
2076233731 local 2019-01-04 08:57:26 6oi9212 [192121966 PHILIP BUSSIERL Deb, Complete lavestigator Pra Mapping Error NL A ol
2078223711 local 2019-01-04 12:40:15 Oj 18410_ (184101982 NECHAEL STEVENS Enataat Pay lecomplete Investigator Pro Mapping Error N
2077738001 {IntrafatafInteastate | |20)9-01-08 14:06:05 [2019-01-04 14. D218 FZt86N9G9 P| ERIC BARD Instant Pay-Account Activator ilncomplete —FCCZ Not Completed {Cail Not Accepted) N ol
2078777781 {Local 2029-01-04 14:17:00 | 2049-01-04 14:18: O)39073 [190791112 O08 SWANSON Dedit Incomplete ‘Investigator Pra Mapping Error N 0: 6
2077738001 i 2049-01-04 15:02:15 O}L21EG [12861989 | ERIC Instant Pay-Accounl Activator ilacomplete — IFCC2 Nol Completed (Call Not Accepted) N i
2019-01-06 16:18:04 142}7656 (7656198) ERA AdvanceCoanect Complete Caller Hang up : N
2019-01-07 08:22:31 146:38473 1284793955 ROLAND PELLETIER AdvanceConnedt Complete investigator Pro Mapping {trot N
a 04-07 12:43:40 Direct Bill v N i
edit iN oi a
3982148 {21481981 STEPHEN pNGUS Debit Complety N 303 0.25

The Center’s Request and FOAA Appeal. The Center is a nonprofit news

organization that publishes The Maine Monitor, an investigative news service.
J.S.F. { 1. In various articles authored by Ms. Hogan, the Center has reported that
Maine jails have recorded nearly 1000 privileged inmate-attorney calls and in some
instances, shared the recordings with law enforcement and the Maine Office of
Children and Family Services. J.S.F. 5-7. In furtherance of her ongoing
investigation, Ms. Hogan submitted a FOAA request to York County on June 25,
2021. Among other records, Ms. Hogan requested CDRs of all inmate calls to
specified telephone numbers associated with criminal defense attorneys contracted

with the Maine Commission on Indigent Legal Services, for the dates January 1,

2019, through June 25, 2021. J.S.F. § 8.5 York County denied the request on two
grounds: (1) the CDRs were not “public records” under FOAA, that is, they were not
“received or prepared for use in connection with the transaction of public or
governmental business’ nor did they “contain[] information relating to the
transaction of public or governmental business,” see 1 M.R.S. § 402(8); and
(2) obtaining the requested information would require the County to create a record
in violation of 1 M.R.S. § 408-A(6).

The Center appealed the denial to this court pursuant to 1 M.R.S. § 409(1).
To aid the court’s resolution of this matter, the parties filed a Joint Stipulation of
Fact, which serves as the factual record for purposes of this appeal. Briefing and
oral argument followed. At the briefing stage, York County withdrew the second
asserted ground for denying the plaintiffs FOAA request (1.e., that it had no
obligation to create a record). See Def.’s Br. 13. As such, the court is left with one
issue to decide: Whether the requested CDRs constitute “public records” under
FOAA. See 1 M.R.S. § 402(8).

DISCUSSION

The Legislature enacted FOAA with the express intent that public actions “be
taken openly and that the records of [public] actions be open to public inspection
and [public] deliberations be conducted openly.” 1 M.R.S. § 401; MaineToday Media,

Inc. v. State, 2013 ME 100, { 8, 82 A.3d 104. To that end, FOAA provides that,

5 Ms. Hogan also sought Audit Log Reports, a username list, and certain
additional communications. As noted, York County initially denied Ms. Hogan’s
request for those records but has since provided them to the Center.
“fe]xcept as otherwise provided by statute, a person has the right to inspect and
copy any public record in accordance with this section within a reasonable time of
making the request to inspect or copy the public record.” 1 M.R.S. § 408—A;
MaineToday, 2013 ME 100, {| 8, 82 A.3d 104. By statute, FOAA “shall be liberally
construed and applied to promote its underlying purposes and policies as contained
in the declaration of legislative intent.” 1 M.R.S. § 401.

When a party appeals from a denial of a FOAA request, “[t]he court must []
determine whether the [] refusal to allow inspection was supported by ‘just and
proper cause.” Blue Sky W., LLC v. Maine Revenue Servs., 2019 ME 187, §] 24, 215
A.3d 812 (quoting 1 M.R.S. § 409(1)). “The burden of proof is on the agency or
political subdivision [from which the information is sought] to establish just and
proper cause for the denial of a FOAA request.” MaineToday, 2013 ME 100, §] 9, 82
A.3d 104 (alteration in original) (quoting Anastos v. Town of Brunswick, 2011 ME
41, | 5, 15 A.3d 1279). If the governmental entity fails to carry its burden, “the
court shall enter an order for disclosure.” 1 M.R.S. § 409(1).

As noted, the disagreement in this case centers on whether attorney-inmate
CDRs constitute “public records.” That term is statutorily defined to include:

any written, printed or graphic matter... 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).
The Law Court has described Section 402(3)’s definition as “a very broad, all-
encompassing definition” that “leaves little room for qualification or restriction.”
Wiggins v. McDevitt, 473 A.2d 420, 422 (Me. 1984). Even documents with an
“attenuated relationship” to the transaction of governmental business “relatf[e] to”
such business and thus, qualify as public records. Id.

Here, the parties dispute whether the requested CDRs “contain[] information
relating to the transaction of public or governmental business” under Section
402(3). 1 M.R.S. § 402(8). The Center argues that attorney-inmate CDRs qualify as
public records because they shed light on (1) York County’s practice of recording
privileged calls, as well as (2) the income the County derives from calls placed over
the Securus system. York County, meanwhile, argues that because inmates and
attorneys are not government employees, “[eJach entry on a Call Detail Report is a
record of a personal telephone call.” Def.’s Br. 7, 10. In York County’s view, details
of personal calls are unrelated to the transaction of governmental business and do
not qualify as public records. York County relies extensively on the Law Court's
decision in Doyle v. Town of Falmouth to support its position. 2014 ME 151, 106
A.3d 1145.

Having considered the parties’ arguments and the authorities they cite, the
court concludes that York County has failed to carry it burden to demonstrate that
its denial of the Center’s request was supported by “just and proper cause.”

MaineToday, 2013 ME 100, {{ 9, 82 A.3d 104. The requested records fall within the

purview of FOAA because they contain information relating to the transaction of
governmental business. As the Center correctly observes, there are two types of
“sovernmental business” at issue: The York County Jail’s practice of (1) recording
telephone calls between inmates and their attorneys, and (2) deriving income from
the calls. 1 M.R.S. § 402(3). Moreover, the CDRs “contain[] information relating to”
those types of business: (1) the “Priv” column of the records indicates whether York
County Jail recorded the call, and (2) the “Amount” column shows how much was
charged. Id. Thus, the court is satisfied that the reports at issue qualify as public
records under Section 402(3)’s “broad, all-encompassing definition.” Wiggins, 473
A.2d at 422.

To be clear, the court takes no position on whether Section 402(3)’s definition
of “public records” extends to CDRs of calls between inmates and non-attorneys.
That issue is not before the court, as the plaintiffs FOAA request was limited to
attorney-inmate CDRs. Accordingly, the court’s ruling in this case is narrow: CDRs
of inmate-attorney calls are public records under FOAA. The Law Court’s decision
in Doyle is not to the contrary.

In Doyle, the Law Court upheld a town’s partial denial of the plaintiffs FOAA
request for the cellphone records of the former school superintendent, who used a
school-issued phone that was paid for by the school department. 2014 ME 151,

{| 1-2, 106 A.3d 1145. There was no policy preventing employees from using their
cellphones for personal purposes, and the superintendent evidently used hers to
make personal calls to healthcare providers, her grandchildren’s daycare, and her

family and friends. Id. { 2 & n.4.
In response to a FOAA request that sought copies of the superintendent’s
“cellular telephone bills,” the town provided records that revealed the “date, time,
and duration of all calls placed or received by the Superintendent, as well as the
total amount charged to the School Department for the Superintendent’s use of the
phone.” Id. 4 {{ 2-3, 5. However, the town redacted the telephone numbers associated
with the superintendent’s personal calls. Id. §]{| 4-5.

On appeal, the Law Court held that the redactions were proper under FOAA.
While acknowledging the “very broad, all encompassing definition” of “public
records,” the court concluded that the plain language of the definition
“demonstrates that records of personal telephone calls made by the former
Superintendent that were unrelated to the transaction of public or government
business do not fall within the definition.” Id. | 14. The Law Court emphasized that
the town did not prohibit the use of the government-issued phones for personal
matters. Jd. In the court’s view, “[t]hat the Town... provided some employees with
cellular phones d[id] not convert all of the calls made on those phones into public
records pursuant to the Act.” Jd. The court accordingly concluded that it was
appropriate “to redact information concerning the calls, other than those related to
the Town’s business” from the superintendent’s cellphone billing records. Jd.

York County advocates for a broad reading of Doyle whereby records of
personal calls categorically fall outside the definition of a public record. Such an
interpretation, however, overlooks certain qualifying language in the Law Court’s

opinion: “records of personal telephone calls made by the former Superintendent
that were unrelated to the transaction of public or government business do not fall
within the definition.” Jd. (emphasis added). Thus, Doyle did not hold that all
records of personal calls were outside the scope of FOAA—only those records
“unrelated to the transaction of... government business.” Jd.

Important factual distinctions between the present case and Doyle
demonstrate why FOAA requires disclosure of the CDRs. Unlike in Doyle, the
records in this case were generated at a county jail. The requested CDRs, though
they involve calls between non-government actors, shed light on how York County
administers the detention of the inmates in its custody—a core government
function. See Procunier v. Martinez, 416 U.S. 396, 412 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) (“One of the primary
functions of government is the preservation of societal order through enforcement of
the criminal law, and the maintenance of penal institutions is an essential part of
that task.”); Torcasio v. Murray, 57 F.3d 1340, 1345 (4th Cir. 1995) (“It cannot be
disputed that the management of state prisons is a core state function.”). Put
another way, it is not the fact of the calls that makes the CDRs disclosable, but
rather what the CDRs reveal about how York County manages those calls.

For example, the records bear upon how the jail controls an inmate’s access to
the outside world and its surveillance of the inmate population. The Doyle case,
involving the telephone records of a person who was not in government custody and
whose calls were not recorded, did not implicate similar concerns. The CDRs also

show the extent to which the jail is honoring the attorney-client privilege to which

10
inmates are entitled. See M.R. Evid. 502; State v. DeMotte, 669 A.2d 1331, 13384 (Me.
1996) (suggesting that incarcerated persons retain attorney-client privilege, though
in some cases, the right may be balanced against the State’s legitimate penological
interests). In Doyle, by contrast, the redacted records did not reveal anything about
the propriety of the government’s actions—a point the Law Court highlighted.
Doyle, 2014 ME 151, § 14, 106 A.3d 1145 (explaining that the “Town and School
Department did not prohibit the School Department employees who received
government-issued cellular telephones from using those phones in connection with
their personal matters.”). The court accordingly concludes that because the
requested CDRs in this case contain information about how a government entity
conducts its business, disclosure is consistent with the principles enunciated by the
Law Court in Doyle.

In ordering disclosure, the court is mindful of the inmate privacy concerns
raised by York County. However, the court is assured that the content of the calls
will not be released. See J.S.F. § 35.6 Moreover, inmates are warned at the
beginning of each call that their calls may be monitored and recorded, affording
them notice that their call records may be subject to scrutiny. J.S.F. 9] 22-23.

In short, the court concludes that attorney-inmate CDRs constitute public

records under FOAA. And because York County otherwise fails to establish that an

6 Attorney-client privilege is limited to protecting “the contents of any
confidential communication.” M.R. Evid. 502(b) (emphasis added). Thus, the
information contained in the CDRs is not subject to the privilege.

11
exception to the rule of public access applies,’ the defendant has not met its burden
to demonstrate that “just and proper cause” supported its denial of the plaintiffs
FOAA request. MaineToday, 2018 ME 100, 4 9, 82 A.3d 104.

The entry is:

The plaintiffs FOAA appeal is granted. York County is ordered to provide the
plaintiff access to the attorney-inmate CDRs requested.

The clerk is directed to incorporate this order on the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATED: 9/@|]28 Gs mS

2B a
Julia M. Lipez 0
Justice, Superior Cou

7 To support its position that the denial was proper, York County makes
passing reference to 34-A M.R.S. § 1216(1), which states: “All orders of commitment,
medical and administrative records, applications and reports, and facts contained in
them, pertaining to any person receiving services from the [DJepartment [of
Corrections] must be kept confidential and may not be disclosed by any person,
except that public records must be disclosed in accordance with Title 1, section 408-
A [FOAA].” Id. (emphasis added). York County, however, does not assert that
attorney-inmate CDRs constitute administrative records “pertaining to [a] person
receiving services from the department.” Jd. Moreover, Section 1216(1) expressly
permits disclosure of administrative records that qualify as “public records” under

FOAA. Id.

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10812646. Public record. Not legal advice.