Police unions are expected to appeal a court’s decision that public records be released of discipline given to police officers in South Portland that unions sought a court order to prevent the public from seeing.
A notice of appeal has been filed in the case, setting up the potential for it to be heard at Maine’s highest court - the Supreme Judicial Court, known as the Law Court.
The case involved requests for officer discipline under the Freedom of Access Act, Maine’s public records law, made by a former employee at South Portland police department and Marcus Wraight, a criminal defense attorney who writes this blog.
A temporary restraining order was issued on June 18, 2021, preventing release of records. That was dissolved as a result of the decision. However, they have still not be released.
Among the retained records - but disclosed after a separate earlier request - was a record of a senior officer found asleep in the parking lot of the police department with an explicit video playing on his phone.
In his Order on June 24, Justice O’Neil ruled on two motions for summary judgment, one made by each side - effectively deciding the case based on the court filings alone - and fell in favor of The City of South Portland that the records of discipline should be disclosed.
Under statute, final disciplinary decisions where discipline is imposed are public records and have to be released when requested. However, police departments can destroy those records when that is explicitly stated in a union agreement with a city. That is allowed under a regulation by the State Archivist. The regulation is known as a retention schedule. Some of these union contracts, known as collective bargaining agreements (CBAs), state destruction explicitly. Others are more ambiguous about removal of a record from a personnel file - allowing cities to retain the records for public records purposes.
In South Portland’s case, that provision about records of discipline was more ambiguous - and the source of dispute about whether the records should have been kept and released under FOAA or destroyed after set amounts of time depending on whether an officer was suspended or reprimanded. The city had kept the discipline separate from an officer’s individual file because of its legal obligation to release public records.
In the decision, Justice O’Neil said: “In this case, the CBA language - which is lawfully part of each CBA pursuant to the State Archivist's promulgated retention schedules - does not require removal of a written reprimand from all officer associated files at city hall. It merely requires removal, upon written request, of reprimands from personnel folders or files which are stored at the Police Department for reference when making employment related decisions.”
However, what was not addressed was the separate obligation that discipline be disclosed to criminal defendants under case law by the United States Supreme Court. It is this aspect of the case that attorney Marcus Wraight finds most concerning - the destruction of records that defendant is entitled to know about and that a prosecutor is obligated to disclose in a criminal case.
“Retention of these records is a matter of public policy because of a prosecutor’s discovery obligations - whatever a regulation or union contract says,” said Mr. Wraight.
“It is a source of deep concern that the public is kept in the dark in what is in effect race to destroy these records before a public record request is made - and certainly before a defendant gets to know about the officer who appeared in their rear view mirror or who arrested them and whose word, ability to do their job, and credibility is important.
“Knowing whether that officer followed procedure, is accident prone, or worse has been found to be be untruthful, is a matter for cross examination at trial and must be retained for that reason. It’s about the minor to the important. All of it has to be disclosed. Subcontracting that obligation to union contracts means these records could be destroyed within weeks and nobody would ever know they even existed. That has to end.”
The Right To Know Advisory Committee that recommends changes to regulations and statute is expected to discuss this issue of police discipline records retention later this year.