May 20, 2019
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Maine law shields police videos from public scrutiny

Jake Bleiberg | BDN
Jake Bleiberg | BDN
Portland city councilors discuss a plan to buy a small number of police body cameras before the department fully adopts them in the 2019 fiscal year.

PORTLAND, Maine — Amid a tense public debate over how quickly to equip Portland police with body cameras, the city has denied a public records request for dashboard camera video from last Saturday’s police shooting of a 22-year-old man.

With $400,000 earmarked to outfit the police department with body cameras in fiscal year 2019 and a preliminary plan to pilot the technology before then, city officials seem to agree that the devices would be a boon for community-police relations and transparency. But the refusal to release video from Saturday’s shooting highlights the way in which Maine’s exemption-riddled public records law might limit the technology’s usefulness when serious questions are raised about a police officer’s behavior.

“What’s happened over time with the public record law in Maine is it’s turned into Swiss cheese,” said Sigmund Schutz, a First Amendment lawyer and partner with Preti Flaherty in Portland. “There are just so many exemptions to it, and some of them are ambiguous and open to broad interpretation.”

The Maine attorney general’s office is investigating Sgt. Nicholas Goodman’s shooting of Chance David Baker in Union Station Plaza last Saturday, and Portland police also will conduct a review of the incident. Police said that Baker was brandishing a rifle-style pellet gun when Goodman shot him from about 100 feet away.

[MORE: How Maine police shootings are investigated]

The open investigations into the killing — which are standard protocol when police use deadly force — were cited in the public records request denial, which said releasing the video might interfere with the investigation, lead to the intimidation of witnesses, or lead them to misperceive events.

But a letter from police lawyer BethAnne Poliquin also cited two of the other myriad exceptions to Maine’s public records law as reasons to deny the request. Interpreted broadly, these exemptions would seem to cover nearly any video captured by a police body camera and make it unlikely that many such videos would be seen by the general public.

Under Maine law, personnel records are exempt from freedom of access requests. Poliquin interpreted this to include dashboard camera video from Saturday’s shooting because the police department’s review of the event will cover “whether an officer violated police department policy and whether the officer should be subject to discipline.”

The video “is a confidential personnel record and the department cannot release it,” Poliquin wrote. Written decisions to discipline officers can become public, she added.

The lawyer also denied the request based on a legal exemption for “intelligence and investigative information.” Maine law defines that broadly, as:

“[i]nformation collected by criminal justice agencies or at the direction of criminal justice agencies in an effort to anticipate, prevent or monitor possible criminal activity, including operation plans of the collecting agency or another agency, or information compiled in the course of investigation of known or suspected crimes, civil violations and prospective and pending civil actions.”

Contrary to the presumption of public disclosure, law enforcement often interprets Maine law to give them “broad discretion over when and whether they release information,” said Schutz, who’s been a lawyer in Maine for about 20 years.

“If we’re not going to show the video to anyone, that kind of undermines the point,” he said.

On Wednesday, six Portland city councilors declined to comment on whether Maine’s public record exemptions lessen the value of body cameras. Councilor Spencer Thibodeau said that the video’s status as public records will be one of the things the council will consider in making policy.

A city spokeswoman said it was premature to comment on the issue.

Mayor Ethan Strimling said Thursday that the wording of the public records law “undercuts the transparency” value of the cameras and that he generally favors broad disclosure.

“We’ve seen in other communities where getting these videos out improves community trust and where not getting them out breeds mistrust,” Strimling said.

But the mayor said that the cameras also have value as a record for law enforcement and the legal system.

Kelly McDonald, the lawyer who heads the Police Citizen Review Subcommittee, said that body camera videos could be another source of information for his group, which reviews Portland police internal affairs investigations. As part of its reviews, the civilian watchdog goes through confidential personal records, including dashboard camera video, McDonald said.

Police body cameras are driving new conversations about transparency and privacy across the state and country, but worries about government opacity is nothing new here. Maine received a failing grade in eight of 13 categories, including public access to information, in a 2015 ranking by The Center for Public Integrity. The state was ranked among the worst in the nation for transparency, and it was the only New England state to receive an overall failing grade.

On Tuesday, Portland police Chief Michael Sauschuck said that he supports body cameras, but warned that they are not a cure-all.

“I think there’s a lot of value to body cameras,” Sauschuck said. “I also think they’re not the panacea that the general public would think that they are — that they will give you every answer to every question [in] every situation.”

 



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