*1 and The James Russell WIGGINS American, Inc.
Ellsworth
Reginald McDEVITT. Maine.
Supreme Judicial Court of 23, 1983.
Argued Sept.
Decided March Wilk, Goodall,
Lund, Gordon H.S. Scott plaintiffs. (orally), Augusta, Scott P.A., Gross, Singal, Minsky, Mogul & Gould, Edward W. Singal (orally), Z. George Bangor, for defendant. McKUSICK, C.J., NICHOLS,
Before WATHEN, ROBERTS, VIOLETTE, SCOLNIK, JJ. GLASSMAN WATHEN, Justice. Wiggins Russell is the
Plaintiff James weekly newspaper editor and of a publisher American, Inc. by plaintiff owned Ellsworth pursuant this action Plaintiffs commenced (1 of Access Act to the Maine Freedom seeking an seq. (1979))1 et defendant, deputy requiring order County, permit of Hancock sheriff pertaining to fees inspect tiffs to received found as a fact cess. The history legislative (Me.1979). 1. For a review of the 341^42 n. 4 City act see 400 A.2d Moffett v. *2 judgment
that defendant had no record of such fees defendant. From that cross-appeal and are taken. personal present appeal other than state and copy The federal individual income tax returns. II. officially court noted that maintained procedure description brief fol- records of fees received for service of cess, existed, process service of civil demon- lowed they “public if would be context within which the strates records” but held that tax returns permits law civil present case arose. Maine the same information are and confidential a deputy a sheriff or process to be served argue are not records. Plaintiffs on specifies may the fees which sheriff and failing that the court to appeal erred in types charged for the service various require disclosure. Defendant cross-appeals (1978 process. civil M.R.S.A. § from the court’s suggestion officially that who are “not Supp.1982-1983). Deputies maintained records would be on salary per may a diem basis receive cross-appeal We dismiss defendant’s be- and retain fees from the service of ... civil challenged cause the a suggestion not process” and such fees “shall be collected judgment of the Superior Court. We sus- exclusively litigants.” them plaintiffs’ tain appeal. 2(4)(B) (Supp.1982-1983). requires M.R.Civ.P. 4 the person I. process civil to a make return of service 2,1982 July plaintiffs’ attorney On sent a prescribed thereon. The form for return of letter to the sheriff of Hancock County requires service disclosure of fee defendant, part-time deputy, request- charged any charge for service and an ing opportunity “public examine mileage. After return of service is records” the fees received for service of it completed, litigant is delivered to responded in writ- his attorney, pays who sheriff deputy days within 10 required by 1 M.R. and then appropriate files the return in the 409(1) (1979). S.A. He § refused honor service, court. Other than the return of no plaintiffs’ request on the grounds that he is required part keeping official, not a public requested performance of the official act. records do not come within the Freedom Defendant does not now contest the fact Act, Access and that the information re- “public that he is a purposes official” for quested is available for inspection by the though act even term is not an examination of the service defined 1by M.R.S.A. 402. State v. See filed in the various court locations Brown, 169,151 Me. A. (1930) (deputy State of Maine and elsewhere.2 officer). sheriff is Section 408 Plaintiffs filed a timely complaint3 pur- the act states unequivocally unless oth- suant to 1 M.R.S.A. 409(1) an requesting provided by person erwise statute “every order requiring the defendant right inspect copy any shall have the subsequently moved for summary judg- dispute record.” Plaintiffs do not ment on the basis of the pleadings justice the presiding conclusion of deposition. defendant’s Following record in the of defend- motion, court’s denial of that parties ant the copy of his individual income tax submitted the on matter the same record return. We must determine therefore and the court entered judgment in favor of whether defendant’s tax returns “public significant It is complaint note that unlike the 3. The named the sheriff and defend- parties. against point tiffs in ant as The Moffett defendant has not the sheriff at voluntarily proceedings it was dismissed after was deter- these asserted a posses- he mined that had no records within his against seif-incrimination. sion. inspection plaintiffs’ any part analysis.
records” other records has in the request. in section definition contained of other availability does not turn on the The term records” and the sought. If a sources for the information relevant are defined in 1 M.R. exceptions possessed by tax return official 402(3) as: S.A. § relating to the trans- contains information *3 written, any graphic or matter or printed the return is a public action business mechanical compi- or electronic data it falls within one of public record unless lation from which information can be ob- statutory exceptions. the tained, or after directly translation into a construing “public records” In the term form or susceptible of visual aural com- primarily we “must look first and at the prehension, possession is in the or provision.” City of the Moffett v. custody public of an or official of agency Portland, (Me.1979). 400 A.2d It political this State or of its subdivi- sought to apparent legislature the prepared sions and has been received or broad, enacting avoid uncertainty by very in use connection with the transaction subject all-encompassing only definition public governmental or business or specific The statute was de- exceptions. contains information relating signed to avoid restrictive common law def- transaction public governmental or public initions of records. It declares as a business, except: pub- matter of that records of policy designated A. Records that have been lic shall open public inspection. be statute; confidential It or qualification leaves little room for B. Records that would be within the restriction. scope of privilege against discovery recognized by or use as evidence the the information describes courts of this in State civil or criminal in his tax in only returns as “related the trials if the records or inspection peripheral there- most manner with the transac sought of were in the course of a court tion of governmental business.” Notwith proceeding; standing relationship the attenuated be
tween the
information
his tax returns
performance
and the
public duty,
of his
Plaintiffs concede that defendant’s tax re-
copies
of the tax returns in his
turns were not
“in
prepared
connection
relating
contain information
to the transac
with the
govern-
transaction of
compelled
business. We are
business,”
mental
they
but
contend that the
to conclude that
portions
copies
those
of the
tax returns do contain “information relat-
of defendant’s tax
in
ing to the
govern-
transaction of
come from the
process
service of civil
business,” namely,
report
mental
of the
public records.
liberal construction of
fees
mileage charges
re-
the language
permits
of section
no
ceived for
Plaintiffs
other conclusion.4
argue that defendant’s “personal tax return
becomes
record” if he maintains
In order to avoid disclosure of the tax
no other
returns,
record and the
alternative
it must be demonstrated that one
source
information is a
of the definitional exceptions
applicable.
“unavailable without a detailed search
prior
of On two
occasions we have ruled on the
every
files of
court in the state.”
scope
exceptions
We
to the definition of
persuaded
are not
availability
Theobald,
Dunn
public &
Inc. v.
payroll
It should be noted that
records for
Mass.
records judicial upon reliance definitions of from self assessment. accurate and records” which were enacted de- case on the We hold facts of access, purposes e.g., for other than clared copies of defendant’s tax records, compilation preservation for neither confiden- and are defining or for admissibility evidence meaning of privileged tial nor within the upon called forgery, courts a crime 402(3). Superi- On remand the problem legislatures address should order of those or Court pur- for the defining phrase specifically tax returns which portions defendant’s He providing access. warned pose perform- reflect income resulting limiting use of such against his official ance of duties pursuant by law” or “recorded “required law,” descrip- more liberal and advocated be: entry must a conve- writings which “constitute reversed. Judgment Superior Court nient, customary method of appropriate or office.” discharging the duties of the His for the Remanded however, upon throughout, was emphasis entry of an order disclosure consistent use, fact, its of the record and the nature opinion with the herein. in state business. McKUSICK, C.J., and GLASSMAN Legis- this the 99th Against background SCOLNIK, JJ., concurring. predecessor enacted the lature *5 any express defini- statute without ROBERTS, Justice, with whom NICH- The bill’s chief public of tion VIOLETTE, Justices, join dissent- OLS to members of reported thereafter ponent ing. of Information: on Freedom the Committee agree I do not with the decision ... are concerned far as records [A]s require Reginald Court to agency or every almost ... de- past return. McDevitt personal McDevitt’s tax right its own has held it to be partment to duty is under no disclose unless tax will ... it make decide what records to the mean- return is a record” within This cannot or will withhold.... public Act, of Maine Access Freedom of any We have at- be the case more. (1979). reject I as M.R.S.A. §§ opinion Harold torney general’s and exceeding legislative overbroad law means that opinion that our Cross’ interpreta- the Court’s mechanical purpose exempt by not any specifically record Both the tion of the words the statute. now a record.... public is statute surrounding and the circumstances history Hamilton, W. Memorandum Brooks the absence of legislation this demonstrate Chairman, on Free- Maine Committee Joint scope departure such radical any 7,1959 (em- Information, May dom of dated Know Law.” original “Right to original). history in the Nowhere phasis of at- there legislative history legislative is judicial of Maine’s effort than those greater to infor- records other tempts provide suggestion access within the were activity governmental nature concerning governmental mation reach of the statute. in The has been chronicled H.L. Cross People’s Right Legal to Know: Access of section The present Proceedings Records and Public P.L.1975, ch. was enacted Cross, title a Maine resident whose book P.L.1975, critical lan- ch. 1. The probably gave popu- our statute its original rely, “or upon plaintiffs which the guage name, as to the lar served a consultant relating to trans- contains information business,” of In- Maine Joint Committee on Freedom governmental formation, original sponsored part an omnibus “Errors was inserted P.L.1959, Although the Act, of Access ch. 219. bill. Freedom and Inconsistencies” was debate about the record indicates there
impact upon legislative pa- documents and legislators there no hint that intend-
pers, personal papers
ed into sweep essentially domain. agree the opinion
I with of the Court that presence absence other immaterial, although plain-
tiffs make much absence
other convenient source of If information.
Reginald McDevitt’s is a public tax return it is “in because ...
of ... official ... and ... con- [a] relating
tains information transac- business,” so,
tions of ... too, then return other public official receives income in
who connection with his private duties. Even diary, assum- ing it relating contained information Hawkins, (oral- Becker & Peter J. Becker business, of public transaction be would ly), Bridgton, for Jeffrey Pickering, subject to inspection. citizen tiff. Common sense convinces me that an offi- Hunt, Bowie, Thompson R. Daniel Ma- personal cial’s tax return remains in the III, whinney, DeLong, (orally), Frank W. private opposed the public domain. Chrysler Corp. An individual tax return is inherently pri- vate. It is simply not one of those records Waterhouse, F. Cyr, Carroll & James intended sweep within the of the Molleur, Edmands, Biddeford, L. Peter legislature’s admittedly broad definition. Chrysler-Plymouth. Twin Town The return relates to the personal obliga- *6 tion for payment taxes, and bears C.J., NICHOLS, McKUSICK, Before the most tenuous association transac- ROBERTS, VIOLETTE, GLASSMAN business. I would affirm the SCOLNIK, JJ. judgment of the Superior Court.
SCOLNIK, Justice. 17, 1979, September plaintiff On Wood- W. complaint row Tuttle filed a (Cumberland County) against defend- Chrysler Corporation (Chrysler) and ants Woodrow W. TUTTLE Chrysler-Plymouth, (Twin Twin Town Ltd. Town). After some procedural skirmishing, Chrysler CHRYSLER filed a pretrial CORPORATION and Twin memo- Chrysler-Plymouth Town Ltd. 9, 24, 1980, May July randum on 1980. On pretrial defendant Twin Town filed a mem- Supreme Judicial Court of Maine. 17, 1981, February Supe- orandum. On Argued Nov. 1983. complaint rior Court dismissed plaintiff’s Decided March completely comply because he had failed states, 16(a)(1), with M.R.Civ.P. days “Within 20 one party after serves memorandum, pretrial party each other