Legal dispute over public access to 911 calls reaches Maine’s highest court

Judge Donald Alexander of the Maine Supreme Judicial Court in this 2013 file photo.
Judge Donald Alexander of the Maine Supreme Judicial Court in this 2013 file photo.
Posted Sept. 09, 2013, at 5:49 p.m.

PORTLAND, Maine — Attorneys on opposite sides of a legal dispute over public access to 911 call transcripts suggested Monday that dangerous precedents could be set if their sides did not prevail.

The case is rooted in MaineToday Media’s request for records of 911 calls made on Dec. 29 after James Pak, 74, of Biddeford, allegedly shot and killed two tenants of a building he owned during a dispute over snow removal and parking. The request was denied, and the company subsequently sought access to all of the state’s 911 transcripts from unresolved murder cases.

Sigmund Schutz — representing MaineToday Media, the parent company of the Portland Press Herald — argued Monday before the Maine Supreme Judicial Court that the same lower court ruling used to block the newspaper’s access to emergency call records could be used to make other more obviously public documents off-limits. The precedent could give law enforcement justification to pull government budgets and contracts out of the public purview if they’re considered part of a criminal probe, he said.

Deputy Attorney General William Stokes countered that if 911 transcripts are freely distributed to the media before criminal trials, potential jurors and witnesses could be influenced by the information included therein.

During a Monday hearing, Maine Supreme Judicial Court Justice Donald Alexander took the potential trickledown effect a step further.

“Your argument is that anybody at any time should be able to have access to 911 material,” Alexander told Schutz. “This could include the media; this could include the public; this could include somebody who wants to start a reality show based on 911 calls. … Victims of domestic violence may think differently [about calling 911 for help] — they may think a second or third time, maybe too late — if they think their call could be splashed over the front page of the Press Herald.”

Maine’s Freedom of Access Act, known as the Sunshine Law, allows for the release of the transcripts of emergency calls as long as confidential information such as names, addresses and phone numbers are redacted, according to briefs filed in the appeal.

The attorney general’s office, which is responsible for prosecuting all homicide cases, took the position that the recordings and transcripts constituted intelligence and investigative information and are exempt from the state’s Sunshine Law.

The newspaper has asked Maine’s high court to overturn a March 8 ruling by Superior Court Justice Roland Cole that sealed the transcripts. Cole found that release of the transcripts “could hypothetically influence the input of potential witnesses” at a trial.

Schutz told the state’s highest court Monday that Cole’s ruling was too broad and allows law enforcement officials the flexibility to conceal any otherwise public document as long as they can say it could be used in a criminal trial at some point.

“We believe there has to be an evidentiary showing,” Schutz told the court. “In this particular scenario [involving the Biddeford shooting], you already have a suspect and an indictment. The information may have already been turned over to defense attorneys.”

Maine Supreme Judicial Court Justices Jon Levy and Ellen Gorman each seemed uneasy about the lower court ruling based on hypothetical concerns, saying if public records are going to be sealed in advance of criminal trials, prosecutors should likely be asked to be specific about what information included is expected to influence which prospective witnesses.

But Gorman also joined fellow Justice Warren Silver in asking Schutz why his clients cannot simply wait until after the trial to get the 911 transcripts.

“[The Freedom of Access Act] is not about making sure media outlets can get a newspaper out the next day, it’s about making sure the public can see its government is working appropriately,” Gorman said. “That can be accomplished after the trial as easily as it can before it.”

A “friend of the court brief” has been filed by the Reporters Committee for Freedom of the Press, the New England First Amendment Center, the Maine Association of Broadcasters, the Maine Freedom of Information Coalition and the Associated Press. A brief filed on behalf of the organizations urged justices to release the transcripts.

Pak allegedly shot and killed Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18, and injured Thompson’s mother, Susan Johnson, 44, in a dispute over snow removal and parking. Pak was the victims’ landlord.

Pak has pleaded not guilty to two counts of intentional or knowing murder and one count each of attempted murder with the use of a firearm, elevated aggravated assault and burglary. A trial date has not been set.

Pak is being held without bail. If convicted, he faces between 25 years and life in prison.

BDN staff reporter Judy Harrison contributed to this story.

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