From yesterday's decision in Human Rights Defense Center v. Maine County Comm'rs Ass'n Self-Funded Risk Management Pool (opinion by Justice Horton), interpreting the Maine Freedom of Access Act (FOAA), Maine's analog to the federal FOIA and other states' public records laws:
This case presents the first occasion for us to consider what constitutes "bad faith" for purposes of FOAA's fee-shifting provision. Because the Risk Pool never denied or explicitly refused to comply with HRDC's request, we must consider the circumstances under which a public entity's failure to comply with a FOAA request rises to the level of a bad-faith refusal to comply. Here, the Risk Pool's failure to produce any of its records in response to HRDC's FOAA request, despite HRDC's repeated efforts to clarify what should already have been clear, can only be viewed as, in the court's words, "deceptive and abusive of the FOAA process." We agree with the court that the Risk Pool's response constituted a bad-faith refusal and we affirm the judgment….
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 a contract with the Maine County Commissioners Association. Malcolm Ulmer, the Risk Pool's director of operations, maintains a claim file on each claim handled by the Risk Pool.
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. [Further details omitted. -EV]
[B]ad faith … 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…. An agency's failure to respond does not in itself establish bad faith. On the other hand, proof that an agency has acted in the opposite manner to facilitating access to its public records—by responding to a request dishonestly, for example, or by deliberately and affirmatively impeding or thwarting valid requests for access—may be sufficient to prove bad faith.
Here, HRDC's June 18, 2021, FOAA request was quite specific:
