HRDC Awarded Over $130,000 in Legal Costs and Fees for Defendant’s “Bad Faith” in Maine Records Lawsuit
by David M. Reutter
On January 16, 2024, Maine’s Superior Court for Kennebec County ordered state officials to pay $130,600.02 in attorney fees and legal costs to PLN’s publisher, the Human Rights Defense Center (HRDC), after making a rare finding that the officials exercised bad faith in repeatedly denying the nonprofit’s request for public records.
Under the state Freedom of Access Act (FOAA), HRDC sent a request to the Self-Funded Risk Management Pool (SFRMP) of the Maine County Commissioners Association (MCCA) on June 18, 2021, seeking payment documentation made in settlement of a lawsuit brought by a former Kennebec County jail detainee, who accused guards of using excessive force. See: Afanafor v. Kennebec Cty., USDC (D. Me.), Case No. 1:20-cf-00235.
But the only document the county provided reflected a settlement of $1—even though MCCA, which insures the county, said the settlement amount was $30,000. HRDC then filed an appeal to the county’s denial. SFRMP representative Malcom Ulmer sent a copy of a Portland Press-Herald article in which he was quoted stating the case settled for $30,000—the same article that alerted first HRDC to the settlement. But Ulmer provided no other documents to show SFRMP actually paid $30,000 to settle the case.
On July 2, 2021, Zachary Heiden, an attorney with the Maine chapter of the American Civil Liberties Union (ACLU), sent a letter to Ulmer and Peter Marchesi, an attorney for Kennebec County, notifying them that ACLU was representing HRDC and reiterated its FOAA request. They replied that there were no more responsive documents.
HRDC then filed its FOAA complaint on July 27, 2021, arguing that no public entity settles a lawsuit for $30,000 without generating paperwork to document it. The Court denied SFRMP’s motion to dismiss for untimeliness on April 28, 2022. At a hearing on September 29, 2022, Ulmer admitted he was in possession of a claim file and financial records that documented the $30,000 payment. Attempting a dodge, he claimed that HRDC had not “specifically” requested them— that is, the nonprofit hadn’t guessed the right question—so he didn’t release the documents. Ulmer also claimed for the first time that some documents were privileged.
On December 1, 2022, the Court rejected both arguments. Heiden’s letter specifically used the phrase ‘accounting records’ in describing potentially responsive documents, the Court noted; so it was wrong to say that HRDC never requested the specific records that Ulmer tried to keep from disclosing. The Court also did not find it credible when Ulmer testified that “he believed that he did not have to disclose those records or assert a privilege to them because he thought HRDC was seeking only a settlement agreement.”
Finding that response to the FOAA request inadequate, the Court ordered disclosure of all records that HRDC requested. SFRMP was also ordered to pay HRDC $127,127.33 in attorney fees and $3,472.69 in costs after the Court concluded it did not act in good faith but instead “adopted absurd, blatantly untrue, and inconsistent legal positions in this litigation to avoid a ruling on the merits.” See: Human Rights Def. Ctr. v. Maine Cty. Comm’rs Assoc. Self-Funded Risk Mgmt. Pool, Maine Super. (Kennebec Cty.), Case No. CV-21-131.
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Related legal case
Human Rights Def. Ctr. v. Maine Cty. Comm’rs Assoc. Self-Funded Risk Mgmt. Pool
| Year | 2024 |
|---|---|
| Cite | Maine Super. (Kennebec Cty.), Case No. CV-21-131 |
| Level | State Trial Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 130,600.02 |