The city of Auburn has refused to release the report detailing the arrest of its mayor.
By Lindsay Tice
Staff Writer

AUBURN – The Sun Journal has won a partial victory in its attempt to get Auburn officials to release a report on police behavior in the arrest of Mayor Normand Guay.

A judge ruled Friday that Auburn cannot withhold the report based on the argument that the document is part of a criminal investigation.

“I don’t believe there is any reasonable possibility there would be a criminal process coming out of this,” said Justice Thomas E. Delahanty II.

If the city wants to keep the report secret, the judge said, it will have to prove there are confidential personnel issues involved.

The situation began on Aug. 4 when Auburn police arrested Guay on a charge of drunken driving. A Breathalyzer test showed he had a blood-alcohol level of .01 percent, well below the legal limit of .08. Police, however, summoned Guay to appear in court on the charge.

A week later, City Manager Pat Finnigan hired a law firm to investigate the officers involved in the arrest. The charge against Guay was later dropped by the Attorney General’s Office.

In November, the law firm gave the city an 80-page report on the incident.

Finnigan issued a five-page summary of the report, including the conclusion that some officers acted inappropriately. But she has refused to release the entire report.

In a lawsuit filed last month in Androscoggin County Superior Court, the Sun Journal contended the report is a public document under the Maine Freedom of Access Law and the city is violating the Maine Civil Rights Act by refusing to release it.

The newspaper asked the court to review the report and order the city to make it public.

On Dec. 15, a day before the Sun Journal was scheduled to present its case at a hearing, the city filed a motion asking the judge to rule against the newspaper without hearing arguments.

The city claimed the report is not a public document because it could interfere with an ongoing criminal investigation and because it contained confidential personnel information, such as prescription drug use, social relationships and finances.

Friday, the judge ruled on the city’s motion, in the newspaper’s favor. Delahanty, who has read the report, said Auburn cannot keep the report secret based on the grounds that it could hurt a criminal investigation.

He also denied another city argument that the newspaper should not receive the lawyers’ report because it had obtained, without the city’s approval, a copy of the original police report on the mayor’s arrest. The city claimed the police report was obtained illegally and, therefore, the newspaper had “unclean hands” and should not be allowed access to the lawyers’ report.

Delahanty said the argument didn’t stand up since any individual or news outlet can ask to see a public document or sue for the right to see a document they believe is public.

“I don’t really see it as an issue here,” he said. “Ultimately, it’s not going to be persuasive to the court here.”

He said the city will have to prove its remaining argument: the report should stay confidential because it contains personal information.

To counter that claim, the newspaper has submitted signed releases from 15 Auburn police officers waiving their rights to confidentiality.

The city maintains the waivers are not enough because those officers may yet be punished for their actions surrounding the arrest and no state law allows employees subject to disciplinary action to waive their confidentiality.

The two sides will now spend the coming weeks dealing with discovery. After that, the judge could make another summary judgment on the personnel issue or the case could go to trial.

ltice@sunjournal.com

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