Maine group acted in ‘bad faith’ by withholding public records about former Kennebec County jail inmate, justice says

A Superior Court justice ordered the Maine County Commissioners Association self-funded risk management pool to pay attorneys' fees and release the wrongfully withheld documents detailing a settlement with a former Kennebec County jail inmate who alleged that officers used excessive force and racial slurs against him.

AUGUSTA — The Maine County Commissioners Association Risk Pool has been ordered to turn over documents the group claimed it didn’t have that were sought through a Freedom of Access Act request by an agency that advocates on behalf of human rights for prisoners and inmates. 

In his decision and order issued this month, Maine Superior Court Justice Daniel Billings wrote that in denying the initial public records request by the Human Rights Defense Center, the counties’ Risk Pool group acted in “bad faith” and it had adopted “absurd, blatantly untrue and inconsistent legal positions in this litigation to avoid a ruling on the merits.”

Malcolm Ulmer, who oversees the Risk Pool, “knew that he had responsive documents, and he decided to prevaricate and obfuscate rather than disclose them,” Billings wrote in the rare decision.

Because of the determination of bad faith, the Risk Pool was also ordered to pay reasonable attorney’s fees for the litigation of this case that began a year and a half ago.

The American Civil Liberties Union of Maine, which represented the Human Rights Defense Center, said the decision is a significant victory for transparency and for the people of Maine. Carol Garvan, legal director for the ACLU of Maine, said as far as her organization can tell, this is the first Freedom of Access Act appeal in which attorney fees and costs have been awarded because of bad faith.

“Without that (determination of bad faith), there’s no consequence for delaying and delaying and obstructing. There’s no negative at the end,” Garvan said. “Maybe at the end they are told to turn over the documents.”

The decision also sets a precedent in requiring the Risk Pool to pay attorney costs and fees, she said. Those costs are currently being calculated.

The Risk Pool is a publicly funded group that insures Maine’s county governments, including Kennebec County, and is responsible for covering the costs of legal settlements.

Jeffrey Edwards, an attorney with Preti Flaherty representing the Risk Pool, said Monday the risk pool worked diligently to respond to the Human Rights Defense Center’s information request to make sure its response was timely, appropriate and in keeping with its obligations under the state’s Freedom of Access Act.

“The Risk Pool disputes that there was any bad faith in responding” to the public records request by the Human Rights Defense Center, Edwards said. “We’re in the process of pursuing an appeal of the entire matter, including that finding. We’ve filed a motion for amended findings of fact, and we’ll be taking an appeal from that decision.”

The motion was filed Thursday, and no action has been taken on it.

A request for comment to Ulmer was referred to Edwards, the attorney.

The records request and subsequent lawsuit arose from a discrepancy in information about the amount of a payment made following a settlement reached in a federal excessive force lawsuit filed by Jonathan Afanador, who was then an inmate at the Kennebec County Correctional Facility in Augusta awaiting trial. Afanador had filed the lawsuit against Kennebec County and one of the corrections officers.

Afanador, who is Black, alleged that in August 2019, a corrections officer at the jail assaulted him during a “full floor shakedown.” Afanador’s complaint states he was standing against a wall and reading a book when a corrections officer grabbed his arm and pepper sprayed him directly in the face. The officer then allegedly spun Afanador around, slammed his chest against a table and pinned his arm behind him. The complaint states Afanador was placed in isolation and did not receive medical attention until the next day. Afanador’s complaint also claimed one of the officers directed a racial slur at him.

Afanador was convicted in May 2020 of drug trafficking and is currently an inmate at the Mountain View Correctional Facility in Charleston.

When the lawsuit was settled in 2021, Ulmer said the settlement amount was $30,000, after those associated with the case said they could not talk about the terms of the settlement.

When the Human Rights Defense Center pursued further information through a Freedom of Access Act request seeking “any documents showing payments disbursed” from the Risk Pool to any party to the lawsuit, it received a document that states only that the case was settled for “one dollar and other valuable consideration.” When the defense center pressed for details, it was provided with a copy of the Portland Press Herald story quoting Ulmer saying the case had been settled for $30,000. He provided no other documentation of that amount.

In his opinion, Billings wrote: “The FOAA does not ensure a right to assurances from public officials that their interviews with the press are accurate, it ensures a right to public documents. Even if the court were to accept the Risk Pool’s argument that the HRDC’s request for ‘any’ document showing the amount paid to Mr. Afanador meant only one document, the Risk Pool failed to provide even a single public record responsive to the request.”

In a hearing on the FOAA appeal, Ulmer testified he keeps a claim file on the settlements paid out by the Risk Pool, but he said he believed he did not have to disclose documents because he thought the defense center was seeking only a settlement agreement.

Garvan, the ACLU of Maine’s legal director, said the state’s Freedom of Access Act is supposed to be interpreted broadly, in a way the requester can make a general request. “The requester is not the one who knows exactly what the documents are called and where they are stored,” she said. “The responder is supposed to look in good faith and do due diligence.”

She said she hopes this decision could be precedent for those who receive future public records requests to understand the requests broadly and provide the information being asked for.

“The government is doing people’s business,” she said, “and so the people have (a) right to know what is going on.”