No Labels, Inc. v. Bellows

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. Civil Action
Docket No. CV-2023-117

NO LABELS, INC., )
Plaintiff, )
)
)
V. ) JUDGMENT
)
)
SHENNA BELLOWS, in her )
capacity as Secretary of State )
of the State of Maine, )
Defendant. )

This case arises out of a partial denial of access to records in the custody of the

Defendant, Secretary of State Shenna Bellows. The records at issue have been

submitted for in camera review by this court and fall into two categories: four draft

employee performance evaluations and a short email thread retrieved from the

Secretary of State's personal email account.

The pleadings describe how this case arises out of the efforts of the Plaintiff to

qualify as a political party in the State of Maine and the Plaintiff's concerns about the

Secretary of State's actions in regards to that effort. The court is also cognizant that

there may be additional proceedings between the parties where records obtained under

the Freedom of Access Act could be material. As a result, the court has worked with

counsel to expedite briefing in this matter and will keep this order brief in order to

provide the parties a timely resolution of their dispute 1 •

The issue before this court is whether the Secretary of State has been able to

demonstrate "just and proper cause" for withholding the records at issue in this case.

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The length of this order should not be taken in any way as a suggestion of a lack of importance of this
matter or a lack of substance in the arguments advanced by either party.

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Dubois v. Dep't of Env't Prat., 2017 ME 224, <JI 8, 174 A.3d 314. A "just and proper cause"

could include that the documents in question are not public records, as defined by

statute. In this case, the Secretary of State has submitted the records in dispute for in

camera review by the court.

The first category of documents is described by the Secretary of State as a cover

email attaching four human resources documents. The Secretary of State argues that

two of the documents are draft 3-month Probation Reports pertaining to two employees

and the other two documents are draft Performance Management Forms pertaining to

the same two employees.

After in camera review of these documents, it is the court's finding of fact that the

documents in question are exactly what the Secretary of State claims them to be and

that the Secretary of State's description of the documents is fair and accurate. In

addition, only one of the documents makes reference to the Plaintiff. That reference

suggests that the employee's duties included work related to the Plaintiff's efforts to

qualify as a political party. The reference is brief and offers no commentary on the

merits of the Plaintiff's effort.

Performance evaluations are included on a list of personnel records that shall not

be "public records," under Maine law. 5 M.R.S.A. §7070. Therefore, because the records

are not "public records," the Secretary of State has established a "just and proper cause"

for not providing the records.

The second set of documents is a thread of four emails found in the Secretary of

State's personal e-mail account. The Secretary of State describes the documents as

emails between a staff person from a political organization affiliated with the

Democratic Party and the Secretary of State.

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After in camera review of these documents, it is the court's finding of fact that the

documents in question are exactly what the Secretary of State claims them to be and

that the Secretary of State's description of the documents is fair and accurate. In

addition, only one of the documents makes reference to the Plaintiff. That reference is

brief and innocuous. Nowhere in the documents provided for in camera review does

anyone advocate that the Secretary of State take any action and nothing is said,

positively or negatively, about the Plaintiff.

The substance of the communications at issue is an update on the organization's

finances and activities and an invitation to future Zoom calls. The first communication

in the thread is from the organization and is one of general circulation, not a

communication targeted to the Secretary of State alone. The direct communications

involving the Secretary of State are a non-substantive scheduling question and a

response. There is no reference to the Secretary of State's work and the reference to the

Plaintiff is brief and fleeting.

For a record to constitute a public record it must have "been received or

prepared for use in connection with the transaction of public or governmental business

or contains information relating to the transaction of public or governmental business."

1 M.R.S. §402(3). In this case, the record in question does not meet this criteria.

Therefore, because the records are not "public records," the Secretary of State has

established a "just and proper cause" for not providing the records.

The court's determination on this second category of records is based on an

application of the statutory definition to the records provided for in camera review. In

the court's view, the records do not meet the statutory definition of public records,

therefore no further analysis is required. However, the court shares the larger policy

and constitutional concerns raised by the Secretary of State.

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Without question, the Maine Secretary of State is selected through a political

process and everyone who has held the position, including the Defendant, is or was a

political figure. In enacting the Freedom of Access Act, the Legislature could not have

intended that any communications to or from a public official about political activities

would become public documents. The analysis turns on the content of the records and

whether they are related to the public official's public or governmental business.

On both category of records, the Plaintiff argues that the records could be

provided without any harm through proper redaction and cites to cases in which the

Law Court writes approvingly about the use of redaction in providing documents in

response to Freedom of Access Act requests. However, the Plaintiff's reliance on the

cited cases is misguided. The cases cited stand for the proposition that confidential

information contained in public records may be redacted and the redacted public

documents may then be properly disclosed. The cases do not support the claim that

records that do not fall within the definition of public records must be redacted and

disclosed.

This court takes seriously its role in ensuring that public entities properly meet

their obligations under the Freedom of Access Act. The court also respects that, due to

the ongoing dispute between the parties, the Plaintiff is skeptical of the Defendant's

motives and possible biases. However, the determination that the records at issue in

this case are not public records is not a close call. The fact that these records were found

and identified to the Plaintiff by the Secretary of State suggests that she takes her

obligations under the Freedom of Access Act seriously and acted in good faith in

responding to the records request.

For these reasons, Judgment is entered for the Secretary of State on the Plaintiff's

Complaint.

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Dated: December 19, 2023

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JUSTICE, MAINE SUPERIOR COURT

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Entered on the Docket:M/­

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