Justin Silverman

A judge in Bangor heard arguments in January about whether Maine State Police must release details about the discipline of its officers. The case — brought by the Portland Press Herald and the Bangor Daily News — involves excessively redacted misconduct records and has spotlighted the need for transparency within the department.

The newspapers explained in their lawsuit that: “Public awareness of whether law enforcement agencies are engaged in effective oversight and discipline of officers serves as a vital check on police corruption and misconduct.”

Such misconduct, however, often goes unchecked in Maine. As a recent survey of more than 100 local law enforcement agencies suggests, there’s a blue wall of silence that extends far beyond the state police headquarters in Augusta.

Fortunately, there is a common-sense solution that can help increase public awareness and allow citizens to better oversee their police departments. But first, it’s important to understand the breadth of the problem and how police misconduct secrecy is pervasive throughout the state.

The Maine Freedom of Information Coalition (MFOIC) earlier this year released a survey of 135 law enforcement agencies that were asked to provide the number of citizen complaints against their respective officers since 2016. The coalition also asked for the details of any disciplinary actions taken.

Despite being required to release this information under the state’s Freedom of Access Act, nearly half of all agencies (48%) declined to release any information or failed to respond at all. Of those agencies that did respond, some demanded hundreds of dollars to release the data.

Several agencies that did comply with the law — such as Pittsfield, Waterville and Skowhegan — underscored the need for transparency by revealing instances of misconduct that citizens have a right to know. Without this knowledge, after all, there can be no public oversight and accountability.

Instances of misconduct and disciplinary actions included:

• A police chief not following Centers for Disease Control and Prevention COVID-19 guidance while ill.
• An officer allegedly having a “sexual in nature” extramarital affair while on duty.
• An officer being required to write a 500-word essay with citations on “the importance of following orders” after accusations of being insubordinate.

When questioned by WMTW about the agencies that did not respond to the requests, Maine Chiefs of Police President Jared Mills blamed a lack of resources and inconsistent internal policies on how the information should be maintained.

Granted, some agencies are understaffed. Without a uniform policy on how misconduct records should be maintained and released, it can also be difficult to comply with the state’s public records law. But while these may be valid explanations in some cases, we should not accept them as excuses for any.

The Freedom of Access Act requires that agencies respond to requests within five days and produce records within a reasonable period of time. Compared to public record laws in other states, these are very lenient requirements. There is no excuse for not responding. There is no excuse for not taking the time — especially when broadly defined as “reasonable” — to gather records. There is no excuse for the secrecy.

Still, it’s incumbent on all of us to look for solutions and to create, whenever possible, a better system. Considering the comments of Mills and the challenges he said police departments encounter when receiving requests for instances of misconduct, there is a very simple way we can guarantee transparency, at least in respect to citizen complaints:

Require by statute that all law enforcement agencies not only maintain but also publicly and regularly post the number of citizen complaints against their officers and the disciplinary action taken.

Legislating such a requirement will make the expectation of transparency explicitly clear. It will force agencies to maintain data on police misconduct in a way that it can be easily managed and made accessible. It will remove the burden of making public record requests — requests that are often ignored. This required transparency will also encourage citizens to come forward with complaints and to help deter misconduct in the future.

A longer-term consideration is to comprehensively reform the Freedom of Access Act. A goal of the MFOIC survey was to show how difficult it is for citizens to get access to basic law enforcement data. Under the current law, there is little recourse when that data is denied other than to pursue litigation. Most citizens (and most newsrooms) lack the time and money needed to sue agencies for records they are entitled to under FOAA. Whether we grant the state’s public records ombudsman powers to enforce the law or provide statutory incentives such as mandatory attorney fees for prevailing plaintiffs, we need to create more avenues for enforcement.

Prior to commencing their lawsuit against the Maine State Police, the Portland Press Herald and the Bangor Daily News requested about five years of disciplinary records. But because not all the information requested was provided, the newsrooms couldn’t determine the misconduct of a majority of officers disciplined during that time.

Now take that one experience and multiply it by the 100-plus law enforcement agencies throughout the state. That is what’s at stake. The opportunity for secrecy is staggering.

Justin Silverman is executive director of the New England First Amendment Coalition. Learn more about the coalition’s work at nefac.org.