HUMAN RIGHTS DEFENSE CENTER v. MAINE COUNTY COMMISSIONERS ASSOCIATION SELF-FUNDED RISK MANAGEMENT POOL
Ken-22-420
Maine Supreme Judicial Court
August 22, 2023
2023 ME 56
HORTON, J.
Arguеd: June 8, 2023; Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.; Reporter of Decisions
[¶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),
[¶2] This case presents the first occasion for us to consider what constitutes “bad faith” for purposes of FOAA‘s fеe-shifting provision.1
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 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 а contract with the Maine County Commissioners Association. See
[¶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 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 amоunt 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.”
[¶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
B. Procedural History
[¶9] Pursuant to FOAA‘s appeal procedure, HRDC filed a сomplaint in the Superior Court on July 27, 2021, against Kennebec County and the Maine County Commissioners Association. See
[¶10] On March 1, 2022, the Risk Pool filed a motion to dismiss pursuant to
[¶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 HRDC‘s request, because “the Risk Pool‘s behavior was so deceptive and abusive of the FOAA process.” See
[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 prevariсation 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.
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.
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....”
[¶16] The Risk Pool asserts that HRDC‘s appeal was untimely for two alternate
[¶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 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
An amendment of a plеading 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
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
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 interpretatiоn 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 diсtionary definition. Id. ¶ 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
[¶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,
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,”
[¶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.
[¶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, dоn‘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 documents reflecting
[¶30] The Risk Pool‘s second exрlanation 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 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 bаd faith is warranted.
The entry is:
Judgment affirmed.
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