Hawes v. Cumberland County Sheriff's Office

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-19-39

SUSAN HAWES,

Plaintiff
V. ORDER

CUMBERLAND COUNTY SHERIFF'S
OFFICE,

Defendant

In this case, much delayed by the pandemic, the court held a hearing on November 18,

2021 to address Counts 4, 5, and 6 of plaintiff Susan Hawes's second amended complaint. 1 After

the hearing the parties were allowed until December 6 to submit any additional legal argument.

Ms. Hawes submitted a memorandum of law on December 6. Counsel for the Cumberland County

Sheriffs Office did not submit an additional memorandum.

Count Four

The evidence offered at the hearing with respect to Count 4 demonstrated that the records

that were the focus of the request by Ms. Hawes - reflecting the amount of forced overtime - are

kept by the union rather than by the Sheriffs Office or by the county. 2 Accordingly, Ms. Hawes

is not entitled to relief on Count 4.

1 Counts I, 2, and 3 of Ms. Hawes's complaint have previously been addressed.

2 As Ms. Hawes noted at the hearing, it would have saved eve1yone time if that had been explained to Ms.

Hawes at an earlier point.
Counts Five and Six

(a) Subject matter jurisdiction

At the outset of the hearing, counsel for defendant raised an objection to Counts 5 and 6

on grounds on subject matter jurisdiction. The court had not previously granted Ms. Hawes leave

to amend to assert Counts 5 and 6. The defendant did not initially object to the addition of the

additional counts but instead simply filed a response to the second amended complaint. It did,

however, raise subject matter jurisdiction as an affirmative defense and renewed that defense at

the hearing.

Under the circumstances of this case, the court concludes that subject matter jurisdiction

exists. Ms. Hawes filed her second amended complaint on April 14, 2021. Count 5 related to an

FOAA request she had submitted on March 19. Count 6 related to an FOAA request she had

submitted on March 15. The Sheriffs Office did not deny her requests. It provided records in

response to those requests on April 1 and 2 - although Ms. Hawes contends the records provided

did not comply with the FOAA. The Sheriffs office contends it complied with her requests and

with the statute.

The FOAA provides that a person aggrieved by an agency's refusal, denial, or failure to

allow inspection and copying may appeal within 30 calendar days. 1 M.R.S § 409(1). In a case

where records are provided but the requester contends that the response failed to comply with the

FOAA, the court would interpret the 30 days as running from the allegedly non-compliant

response. In any event, the second amended complaint in this case was filed within 30 calendar

days of Ms. Hawes's March 15 and 19 requests and within 14 days of the response that Ms. Hawes

contends failed to comply with the FOAA. This was timely under 1 M.R.S. § 409(1).

2
In the court's view, the 30 day deadline goes to timeliness and a failure to meet that

deadline does not deprive the court of subject matter jurisdiction. Even if that is incorrect, Ms.
- -- --- - ---- --- ----

Hawes met the 30 day deadline. If she had filed a new FOAA complaint on April 14, 2021, that

would have been timely. Where this action was already pending, the issue reduces to whether Ms.

Hawes was required to pay a second filing fee to file a new complaint. 3 Freedom of Access

litigation should not turn on such technicalities, particularly in light of the statutory provision that

FOAA appeals may be advanced on the docket and receive priority when the court determines that

the interests of justice so require. Moreover, leave to amend shall be freely given when justice so

requires. The court will allow the amendment to add Counts 5 and 6 and will consider those counts.

(b) Redaction of payroll codes

With respect to the requests that are the subject of Counts 5 and 6, the information sought

is contained in data files maintained by Cumberland County. The Sheriffs Office does not itself

maintain records with the information requested, and the records produced to Ms. Hawes therefore

came from the County.

On Count 5 Ms. Hawes received records with the pay codes redacted. The basis for this

redaction is that disclosure of pay codes might reveal the payment of sick pay. The only

justification for such a redaction, as far as the court is aware, would be 30-A M.R.S. §

3 Another issue, lurking in the background, is whether, if Ms. Hawes had missed the 30-day deadline, she
would have been precluded from refiling the same request and bringing a new appeal. Counsel for tbe
Sheriff's Office suggested at tbe hearing that she would have been precluded. The comi does not need to
reach this issue but is inclined to disagree. To preclude a second request for the same records if the 30 day
deadline is missed would infuse the Freedom of Access statute with a trap for the unwary. This is
particulai·ly true in a case where a requester receives records but discovers potential omissions in the
agency's response after the fact. Moreover, if this were the rule, a requester could simply refra1Ue the
request more broadly or in different language.

3
503(1)(B)(l), which exempts "county records containing ... [m]edical information of any kind,

including information pertaining to the diagnosis or treatment of mental or emotional disorders."
------ ------ ---

The question is whether the fact that an employee received sick pay constitutes "medical

information of any kind." Following the principle that FOAA exemptions shall be strictly

construed, see, e.g., Citizens Communication Co. v. Attorney General, 2007 ME 114 ,r 9, 931 A.2d

503, the court concludes that the exemption for medical information should be limited to any

information relating to symptoms, illnesses, diagnoses, and treatment including, as the statute

expressly provides, any information relating to mental or emotional disorders. Just because an

employee receives sick pay, however, does not constitute confidential medical information. This

is consistent with precedent in other states. See Clymer v. City of Cedar Rapids, 601 N. W. 2d 42,

46, 48 (Iowa 1999) and cases cited therein.

(c) Disabled Spreadsheets

In the records produced that are the subject of Counts 5 and 6, the Sheriff's Office produced

records in spreadsheet form that were "locked." This was done after the data requested was

obtained from the county's data file and placed on spreadsheets. The Sheriff's Office thereafter

locked the spreadsheets before producing them to Ms. Hawes. If the spreadsheets had been

produced in an unlocked form, Ms. Hawes could have used the spreadsheets, for example, to total

various columns and could have cut and pasted data from the spreadsheets. In locked form, she

may have been able to reorganize the data (e.g., from lowest to highest) to a very limited extent

but she could not have performed any other operations or functions.

The defense witnesses at the hearing testified that they had just begun locking spreadsheets

in early 2021 and that this was done for security reasons. They stated that they would lock

4
spreadsheets in response to other requests, but it did not appear that any spreadsheets other than

the ones requested by Ms. Hawes had yet been locked.
----

Whether locldng a spreadsheet complies with the FOAA requires interpretation of two

provisions in the statute. "Public records" are defined to include "any electronic data compilation

from which information may be obtained." 1 M.R.S. § 402(3). In addition, 1 M.R.S. § 408-A)(?)

provides as follows:

Electronically stored information. An agency or official having
custody or control of records subject to a request under this section
shall provide access to an electronically stored public record either
as a printed document or in the medium in which the record is stored,
at the requester's option, except that the agency or official is not
required to provide access to an electronically stored public record
as a computer file if the agency or official does not have the ability
to separate or prevent the disclosure of confidential information
contained in or associated with that file.

(emphasis added). The Sheriffs Office does not contend that it does not have the ability to separate
out confidential information in this case.
Accordingly, the issue presented is whether electronically stored information must be
produced in an unlocked spreadsheet ~ i.e., in a functional form that would allow the recipient, if
he or she chooses, to extract and sort the data and to perform the various operations and functions
that could ordinarily be performed in using a spreadsheet.
The court has not found any precedent on this issue. However, it concludes that Ms. Hawes
is entitled to unlocked spreadsheets for three reasons. First, the FOAA is to be liberally construed
in favor of disclosure. Citizens Communication Co. v. Attorney General, 2007 ME 114 ~ 9. Second,
the statutory language favors this result. The "medium in which the record [sought by Ms. Hawes]
is stored," as set forth in 1 M.R.S. § 408-A(?), is in a functional data file which can be sorted and
manipulated, not in a data file that is locked. Section 408-A(?) further states that the agency does
not have to provide access to an electronically stored record "as a computer file" if the agency
cannot separate confidential information. That indicates that when the agency can separate out
confidential information, it has to provide the public record information "as a computer file."

5
Providing the data in a locked or crippled computer file does not accord with the statutory
obligation.
Third, _t_he s~curity justificati_Qn provided by_the ~heriff s O_ffice_is u11_con'1incing. Tlle
ability of unauthorized persons to hack into the computer files of public agencies and private
companies is a serious problem. However, the locking of records provided to Ms. Hawes does not
afford the Sheriffs Office any security against hacking. All it does is to secure the data from being
fully utilized by Ms. Hawes. The Sheriffs Office may be concerned about misuse of the data by
Ms. Hawes or another requester; Ms. Hawes could, for example, replace some of the entries on the
spreadsheet with new values. But the Sheriffs Office can protect itself against any alteration of
data by making and preserving an exact digital copy of any public record provided to Ms. Hawes
or another requester. It would then be able to determine if any data has been altered.
The FOAA is designed to allow citizens to inspect and copy public records and to obtain
copies of electronically stored data in the form of computer files. Non-disclosure of electronically
stored records cannot be justified on the basis that the data may be misused any more than non­
disclosure of public records kept on paper could be justified on the ground that paper documents
might be altered and recopied or that portions of those documents might be quoted out of context.
Accordingly, the Sheriffs Office is ordered to produce the payroll records without
redactions for pay code and is ordered to produce the spreadsheets previously provided in an
unlocked format.
For the reasons stated at the hearing the court has already determined that Ms. Hawes is a
prevailing party entitled to an award of costs, including her filing fee, from the Sheriffs office.
The relief awarded in this order further supports that conclusion. If Ms. Hawes seeks an award of
any costs other than her filing fee, she shall submit a bill of costs within 10 days. Otherwise she
court shall simply award her costs equaling$ 175 (filing fee) and $5 (service form). 4
The FOAA can be interpreted to suggest that litigation costs can only be awarded if a failure
or refusal to provide public records was committed in bad faith. See 1 M.R.S. § 409(4). It is unclear
if this means that the costs ordinarily available to a prevailing party under Rule 54(d) are not
available in FOAA cases absent bad faith. If so, the court finds that there is sufficient evidence of

4
The FOAA has a provision for attorney's fees but the court adheres to the view that parties appearing
prose are not entitled to attorney's fees, and Ms. Hawes is not seeking attorney's fees. Recoverable costs
are set forth in 14 M.R.S. §§ 1502-B and 1502-C and in M.R.Civ.P. 54(f) and (g). The court is not aware
that Ms. Hawes incmTed any fees for effecting service, for subpoenaing witnesses, or for depositions.

6
bad faith to justify at least an award of the filing fees paid by Ms. Hawes. This is demonstrated by
the initial invocation by the Sheriff's Office of 16 M.R.S. § 804(7) - which relates to the
confidentiality of recordsthat would disclose "investigative teclmiques_or se911rity plans" - i11__
response to the FOAA request by Ms. Hawes that triggered this action. Subsequently the Sheriff's
Office also invoked 16 M.R.S. § 804(8) (information that would endanger the life or physical
safety of law enforcement personnel) and compounded what the court can only describe as
stonewalling by the invocation of 14 M.R.S. § 807 (which provides that a criminal justice agency
may not confirm the existence or nonexistence if investigative record information). See order dated
March 2, 2020 at ,r,r 5-7. As far as the court can tell, Ms. Hawes would not have received any
records in response to her initial request if she had not filed this action.
Since the response to the initial request, the court would not necessarily be prepared to find
that the Sheriffs Office and the County have been acting in bad faith. However, they have been
very grudging, to say the least, in responding to Ms. Hawes's requests. It is, for example, unclear
whether any other requester has received or would receive disabled spreadsheets.
As noted in its Februaiy 4, 2021 order, the court understands that there has been a
longstanding adversarial relationship between Ms. Hawes and both the Sheriffs Office and the
·County. Ms. Hawes has apparently frequently appeared at meetings of the County Commissioners
and perhaps on other occasions to criticize, in particular, the forced overtime policies at the jail. ­
County officials may have lost patience with Ms. Hawes and believe that her criticisms are not
valid and her persistence is not productive. Nevertheless the FOAA exists to guarantee access to
public records by all citizens, including persistent critics who seek to hold governmental agencies
to account and regardless of whether the agencies consider their criticisms to be valid or their
efforts to be productive.

The entry shall be:
1. Defendant Cumberland County Sheriff's Office is ordered to provide to plaintiff Susan
Hawes the payroll records sought in her March 19, 2021 request without redactions of the pay
codes.

2. Defendant Cumberland County Sheriffs Office is ordered to provide to plaintiff Susan
Hawes the records sought in her March 15 and 19, 2021 requests in an unlocked spreadsheet
format.

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3. Ms. Hawes is entitled to an award of costs.

__ __4. The clerk shall incorpQrate thls Qrder in the docketby reforencepurstJa11t to Rule 72(a).
Dated: January__J__, 2022

Thomas D. Warren
Justice, Superior Comi REC'D GUMB CLERKS OF
JfiN 3 '22 PH1:21

Plaintiff-Susan Hawes Pro Se
Defendant-Michael Devine, Esq. and
Trevor Savage, Esq.

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( (

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-19-39

SUSAN HAWES,

Plaintiff
V. ORDER

CUMBERLAND COUNTY SHERIFF'S
OFFICE,

Defendant

In response to the court's order dated March 15, 2021 plaintiff Susan Hawes filed on April

14, 2021 a second amended complaint including as Count Four a claim that she did not receive all

of the records covered by a request made on January 21, 2021. 1 She also added two additional

FOAA claims as Counts Five and Six.

In Count Four Ms. Hawes states that she understood there were 60+ pages responsive to

her January 21, 2021 request but that, as of April 13, 2021 only 49 pages had been received.

Count Five seeks relief based on a request she made on March 19, 2021 for a standard

excel spreadsheet of regular, overtime, and all other pay types paid to each jail employee for the

years 2018 to present. She alleges that pay codes were wrongfully redacted and that the spreadsheet

was produced in a non-functional form.

Count Six relates to her January 21 request for overtime records relating to the period from

December 22, 2020 to January 21, 2021. However, the request annexed to the Second Amended

complaint as Exhibit E and referred to in Count Six is dated March 15, 2021, not January 21, 2021.

. 1 Ms. Hawes was granted leave to amend to add count Four in the comt's March l 5 order.
( (

In Count Six, as in Count Five, Ms. Hawes alleges that pay codes were wrongfully redacted and

that the spreadsheet was produced in a non-functional form.

Ms. Hawes had not been granted leave to amend to add Counts Five and Six. However, the

Sheriffs Office did not object to those additional amendments but simply filed an answer to her

Second Amended Complaint.

The court orders as follows:

1. As set forth below, the court will consider whether Ms. Hawes may proceed on Counts

Five and Six, but apart from that there shall be no further amendments to the complaint. The court

only allowed Ms. Hawes to add Count IV because it reiterated the request made in count I for a

different time period. The court does not have - and does not intend to exercise - continuing

jurisdiction over all of Ms. Hawes's current and future FOAA requests.

2. The court will schedule one further hearing at which the parties shall be prepared to

address the following:

(1) Ms. Hawes's claim in Count Four that she only received 49 of the 6o+ documents
requested;

(2) whether Ms. Hawes shall be permitted to proceed on Counts Five and Six;

(3) if so, whether the Sheriffs Office is entitled to redact pay codes and to contend that
the basis of the redaction is confidential;

(4) if so, whether the Sheriffs Office has produced spreadsheets in a non-functional
form;

(5) if so, whether the production of spreadsheets in a non-functional form violates l
M.R.S. § 408-A(7).

3. If the Sheriffs Office needs witnesses in order to address (3) and (4) above, those

witnesses shall be available at the hearing because the burden of persuasion in FOAA cases is on

the agency. Dubois v. Department ofAgriculture, 2018 ME 68115, 185 A.3d 743.

2
The entry shall be:

Procedural order issued. The clerk shall incorporate this order in the docket by reference
pursuant to Rule 79(a),

Dated: June_!1, 2021

Thomas D. Wanen
Justice, Superior Court

Plaintiff Hawes-Pro Se
Defendant CCSO-Michael Devine, Esq.

3
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-19-39

SUSAN HAWES,

Plaintiff
v. ORDER

CUMBERLAND COUNTY SHERIFF'S
OFFICE,
•~ -~-. ··-'
Defendant

A hearing was held on December 21, 2020 on plaintiffs action under the Freedom of

Access Act to obtain certain overtime records relating to officers at the Cumberland County Jail. 1

Ms. Hawes has three counts in her amended FOAA complaint, but Count II has previously

been resolved.

Count I of the amended complaint seeks specific overtime records for the month of July

2019, requested in an email from Ms. Hawes dated November 17, 2019. In prior proceedings Ms.

Hawes specified that she understood that the specific records in question had been kept in several

binders.

The initial response of the Sheriffs Office was that the records were confidential pursuant

to 16 M.R.S. § 804(7). In its answer to the amended complaint the Sheriffs Office also asserted

16 M.R.S. § 804(8).2 As the case progressed, howeyer, it appeared that the confidentiality concerns

1 This case was about to be scheduled for a hearing when cmnt proceedings were curtailed in March
2020. Since then there has been almost no time in Cumberland for Superior Cami civil proceedings due
to the pandemic and the need to focus on criminal cases.

2 16 M.R.S § 804(7) protects "intelligence and investigative record information," as defined in 16 M.R.S.
§ 803(7), that would "disclose investigative techniques and procedures or security plans and procedures not
of the Sheriffs office related only to any telephone numbers that might be contained on the

records, and Ms. Hawes stated that she was willing to allow any telephone numbers to be redacted.

The Sheriffs Office thereafter reported that it could not locate any of the binders refened to by

Ms. Hawes or the July 2019 overtime records that had allegedly been kept in those binders.

However, at the outset of the December 21, 2020 hearing counsel for the Sheriffs office

reported that certain documents responsive to Count I had recently been discovered and produced

to Ms. Hawes and that a further search was underway for further documents that were also believed

to exist.

Ms. Hawes offered evidence through Thomas Wiley, a retired employee of the Cumberland

Sheriffs Office, which established that overtime records had been maintained during his tenure

listing the employees working overtime for every shift and any so-called forced overtime. Those

records were kept in five three-ring binders. As time went on, records relating to past months were

removed from the binders and were stored in a room near the Lieutenant's office.

One or more of the records recently produced to Ms. Hawes came from those binders

(Exhibit 3). The parties agreed that before Count I could proceed to a conclusion, the Sheriffs

office needed to continue to search for the remaining records responsive to Count I that were

believed to exist.

The remainder of the hearing addressed Count III of the complaint, which involved Ms.

Hawes's request as set forth in a November 24, 2019 email for the following:

a current 2019 Jail Active Roster, including vacant positions, with
the standard roster columns: Employee Number I Last Name I First
Name I Job Class/ Job Class Description I Position I Pay Type/ Pay
Type Description I Position Description /Location / Group /
Bargaining Unit.

known by the general pub! ic." Section 804(8) protects intelligence and investigative record information that
would "endanger the life or physical safety of any individual, including law enforcement personnel."

2
The Sheriff's Office maintained that it had complied with this request by producing the

information sought in the form of a Microsoft Excel worksheet which in .pdf format amounted to

approximately 321 pages listing each employee multiple times. 3 Because Ms. Hawes had

previously obtained a far more intelligible 3 page document listing the exact information she was

requesting for a month in 2017 (Hawes Ex. 5), she reasonably believed that the Sheriffs Office

was providing the information in the least intelligible form and had not produced a current version

of Exhibit 5.

The evidence at the hearing, however, demonstrated that Exhibit 5 was a document that

had been prepared for a specific County Commissioners' workshop by Alex Kimball, the county's

Treasurer. Mr. Kimball had spent several hours manually preparing Exhibit 5 - cutting and pasting

some of the information from a computer printout. Neither the Sheriff's Office nor the County

had a current version of that document, not was the information electronically stored in the format ·

requested by Ms. Hawes. See 1 M.R.S. § 408(7). 4

Under the Freedom of Access law, agencies are not required to create a record that does

not exist. 1 M.R.S. § 408(6). Accordingly, the Sheriffs Office was not required to create a 2019

Jail Active Roster in the format sought by Ms. Hawes, and the court cannot find that Ms. Hawes

is entitled to prevail on Count III of the amended complaint.

The court will make one other observation. Ms. Hawes is a longtime critic ofthe personnel

policies at the Jail, and this has resulted in an adversarial relationship and a lack of trust on both

sides. It is not clear that the Sheriff's office ever contacted Ms. Hawes to explain the problem with

3 Exhibit A, offered by Ms. Hawes, is an excerpt from that document, consisting of a page and a half

showing the entries for one employee.

4 The county uses "Munis" software to process payroll, but the county does not have a Munis feature that
would have allowed it to provide a record in a fonnat sought by Ms. Hawes.

3
her November 24, 2019 request. If it had done so, it is not clear that Ms. Hawes would have

accepted the explanation offered by the Sheriffs office. However, if there had been more

communication, the parties and the court might have been spared litigation on this issue. 5

Count I of the amended complaint remains unresolved. The most recent information

provided to .the court after the December 21, 2020 hearing is that additional records responsive to

the November 17, 2019 request had been found and were being reviewed before copies could be

provided to Ms. Hawes. The parties shall advise the court on or before February 24, 2021 as to the

status of the remaining records involved in Count I.

Even if Ms. Hawes has now received all of the available records, she has made a request

for attorney's fees and litigation costs on the ground that the responses of the Sheriffs Office to

her requests were in bad faith. Because she is proceeding pro se, she is likely not entitled to

attorney's fees, see Kay v. Ehrler, 499 U.S. 432,435 & n. 5 (1991), but she could be entitled to

litigation costs if the Sheriff's Office is found to have acted in bad faith

The entry shall be:

Judgment is entered for defendant on Count III of the amended complaint. Count I remains
unresolved. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: February_!j____, 2021

Thomas D. Warren
Justice, Superior Court

Plaintiff-Susan M Hawes (Pro se)
Defendant-Michael Devine, Esq. Entered on the Docket:_ o1-/0'fjio2--1
ff,.r, j

5 Ms. Hawes stated at the hearing that through another FOAA request she had obtained a current
employee list. The other information that prompted her request - a list of vacant positions - appears to be
available from budget documents that have been made public.

4
( (

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. .AP-2019-39]

SUSAN HAWES,

Plaintiff
v. ORDER

CUMBERLAND COUNTY SHERIFF'S OFFICE,
. et al.,

Defendants

After considering the issues raised at a scheduling conference held on February 27, 2020,

attended by plaintiff Susan Hawes, who is representing herself, and Attorney Michael Devine for

defendants, the court orders as follows:

1. The court understands that Ms. Hawes does not object to the dismissal of Lauren

Hrubowchak as a defendant. If this is incorrect, Ms. Hawes shall so notify the court and counsel

for defendants in writing on or before March 13, 2020. If no such notice is received, the complaint

shall be dismissed as against Hrubowchak without further notice.

2. Ms. Hawes agreed that Count II of her complaint can be dismissed as the document

sought has been provided. So ordered.

3. The Sheriff's Office contends that after the amended complaint was filed, it provided

Ms. Hawes with the document or documents responsive to the request that is the subject of Count

III (November 24, 2019 request for current jail roster). Ms. Hawes disagrees that what she received

is what she requested. The parties agree that Ms. Hawes does need to amend count III to pursue

her claim for a jail roster. The Sheriff's Office, if it wishes to do so, shall have until March 13 to

file an amended answer to count III.

Plaintiff-Pro Se
Defendants-Michael Devine, Esq.
( (

4. Ms. Hawes informed the court at the conference that she has a witness who is prepared

to testify as to the existence of certain binders responsive to the request that is the subject of count

I of the amended complaint (November 17, 2019 request for overtime records for the month of

July 2019). On or before March 16, 2020 Ms. Hawes shall submit an offer of proof, identifying

the witness and setting forth the substance of the testimony the witness will provide. Although not

required, the offer of proof may be in the form of an affidavit.

5. Counsel for the Sheriffs Office suggested at the conference that 16 M.R.S. § 807 may

prevent the Sheriffs Office from confirming or denying the existence of the records sought by Ms.

Hawes in count I. As the court suggested at the conference, this would appear to be a vastly

overbroad invocation of 16 M.R.S § 807.

6. 16 M.R.S § 807 applies to confirmation of "intelligence or investigative record

information." The issue of whether the contents of the overtime records sought by Ms. Hawes are

exempt from disclosure as intelligence and investigative record information remains to be decided.

But if the Sheriffs Office contends that the mere existence or non-existence of overtime records

itself constitutes "intelligence or investigative record information," the Sheriffs office shall - on

or before March 16, 2020 - submit a memorandum of law with any legal argument or authority

supporting that contention along with any supporting affidavits. It bears emphasis that some or all

of the overtime records sought in this case are documents that are identified in the collective

bargaining contract.

7. The court believes that it is required to establish "a fair process for all of the parties to

present information ... [to] create a meaningful and sufficient record" on which the court can

adjudicate the FOAA claims. Dubois v. Department ofAgriculture, 2018 ME 68 ,r 12, 185 A.3d

743 (emphasis added). In I)ubois, the specific documents at issue were submitted for in camera

2
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review, but the court ordered the agency to prepare and provide to the plaintiffs an exceptions log

itemizing the documents and the reasons those documents were redacted or withheld and to submit

affidavits supporting the claim of exemption. Id ,r 4. Something similar, either through written

submissions or at a short evidentiary hearing, shall likely be necessary in this case.

8. To the extent that the existence of records is disputed (e.g., whether overtime records

are or were kept in binders or in some other form, and whether the document sought in count III

of the amended complaint exists in the form that Ms. Hawes is requesting), this would appear to I Ii
l
require a short evidentiary hearing. I
1 1
9. Counsel for the Sherriff's office stated at the conference that the Sheriff's office may
J
wish to offer testimony as well on issues other than the existence of responsive records and the I
exemptions claimed. On or before March 16, 2020 the Sheriff's office shall submit an offer of II
II
proof as to the proposed testimony, identifying the witness(as) and setting forth the substance of
.'I
the testimony the witness(as) will provide. Although not required, the offer of proof may be in the I!
"
form of an affidavit.

10. Counsel for defendants raised the possibility of taking a deposition of any witness

identified by Ms. Hawes. At this time the court is not inclined to allow discovery, which appears
IIJ'
I
It
li
unnecessary and will potentially delay the resolution of this action. Guided by Dubois v. ·,,
~

Department ofAgriculture, 2018 ME 68 ,r 13, the court will deny any request for a depositions or

other discovery unless the party seeking discovery first makes a showing that that there is good I
cause for such discovery.

11. Two additional legal issues have been raised: (1) The Sheriff's argument that since Ms.
I
~
IT

rr

Hawes requested certain records in August 2019 and did not appeal from the denial of that request,
I
I
II
i
3
{
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she is barred from relitigating her November 17, 2019 request; 1 and (2) the contention by Ms.

Hawes that since the Sheriff's Office cited only 16 M.R.S. § 804(7) in denying her November 17,

2019 request, it may not now cite an additional exemption, 16 M.R.S. § 804(8), to support its

position in this action. On or before March 23, 2020 Ms. Hawes and counsel for the Sheriff's

office shall submit their legal arguments on those issues.

The entry shall be:

Procedural order entered. The clerk shall incorporate this order in the docket by reference
pursuant to Rule 79(a).

])ated: March-1=._, 2020

Thomas D. Warren
Justice, Superior Court

sf
Entered on the Docket: o //3'/1 D ,

1 In this connectk?n it appears to the court that Ms. Hawes's August request and her November 17 request
- although addressed to the same general issue - are not identical.

4