Maine Supreme Court Makes 911 Transcripts Public

By Cliff Schechtman

Cliff SchechtmanPORTLAND, MAINE – The Portland Press Herald won a landmark freedom of information case last month that will now allow the public to better evaluate how well first responders do their job.

In a unanimous decision that reversed a lower court, the Maine Supreme Judicial Court declared that 911 transcripts  should be released to the public.

The case involved a Biddeford teenager and her boyfriend who had called 911 seeking protection from their threatening landlord. Police responded to the 911 call, determined it was a “civil matter” and left.

Three minutes later, both teens lay dead. York County Prosecutors say James Earl Pak, 74, shot to death Derrick Thompson, 19, and Thompson’s girlfriend, Alivia Welch, 18 in Dec. 2012. Thompson’s mother, Susan Johnson, also was shot but survived.

Why did police leave the scene and what exactly did the victim tell dispatchers when he called? Did the caller say that the landlord was threatening to kill them? (The answer is yes, but more on that later.)

These are some of the questions the Portland Press Herald had been trying to answer but was stymied by law enforcement’s refusal to release the 911 tapes and a superior court’s poor understanding of the public records law.

Deputy Attorney General William Stokes, head of the Attorney General’s Office’s criminal division,  had denied the newspapers records request  on the basis that releasing the information would interfere with an ongoing investigation.

“As chief, it is my position that the requested material constitutes intelligence and investigative information and should not be publicly released,” Stokes wrote in his response. “It is the position we have taken in every single homicide investigation. End of story.”

But Mr. Stokes did not have the last word. The Supreme Court decision, written by Justice Ellen Gorman, stated “We conclude that the state failed to meet its burden of establishing the reasonable possibility that disclosure of the Pak E-9-1-1 transcripts would interfere with law enforcement proceedings.”

The ruling sets a legal precedent for the release of transcripts that the state had deemed confidential.

Stokes said that the position of his office has been consistent and conforms with an exemption in state law that says information can be withheld if its release would jeopardize an investigation.

But that’s not what the law says, according to Sigmund Schutz, the newspaper’s lawyer. “There is a specific language in state law that says 911 transcripts are public records,” Schutz said. “If they can’t release those records, they need to say what information contained within would compromise the investigation. Then, that information can be redacted. The (state’s) position is to not release any information and say, ‘Trust us.’”

Maine is in the minority on the issue. Thirty-nine states have no restrictions on the release of 911 calls or the information in them, according to the National Conference of State Legislatures. Five states, including Maine, impose some restrictions. Six states keep 911 recordings confidential.

Sigmund Schutz, the attorney who represented the Press Herald in the appeal, said that although the ruling is specific to the Pak case, it will have a broader effect on public information and the public’s right to know.

“It does reject the notion that we can have a sort of categorical assertion that records held by law enforcement are confidential,” he said.

Schutz called transcripts of 911 calls a “core source of hard information in reporting on emergency situations,” which allows the public to assess how its government does its job.

“This is a big victory for the newspaper and the paper’s choice to stand and fight in this field. It’s a strong endorsement of the public’s right to know and the value of public records,” Schutz said. “We all want law enforcement to be able to catch bad guys. I don’t think this harms their ability to do that. I think it says you need a level of transparency in how you do that.”

Six groups joined the Portland Press Herald in the lawsuit, filing amicus briefs with the court: 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, the Maine Press Association and The Associated Press.

Patrick Strawbridge, a lawyer who represented that coalition, called the decision “a substantial victory for access in the state of Maine.”

“The decision puts Maine within the mainstream of states that allow access,” he said.

Strawbridge said the court acted cautiously by ruling only on the Pak case, leaving the possibility that other requests for 911 calls or transcripts could be rejected.

“It’s certainly not unreasonable that the state could be afforded some ability to keep calls confidential,” he said. “But the state had been saying that all calls are presumed secret throughout the pretrial process.”

Kenneth Bunting, executive director of the National Freedom of Information Coalition, said state access laws regarding 911 tapes and transcripts are “all over the map.” The general rule, though, is that they are public. “And they should be public,” he said.

Bunting said such legal fights are one reason the National Freedom of Information Coalition exists.

“The amount of advocacy by news media, who were once stewards, has been going down,” he said. “News organizations are less interested and less inclined to take these fights on. So when they do, it’s important.”

Zachary Heiden, legal director for the American Civil Liberties Union of Maine, called the ruling a victory for the public.

“Records like this provide valuable information on matters that the public should care about, such as potential shortcomings in emergency response systems,” he said.

The court has made it clear that government secrecy cannot win out over the public’s right to know. This ruling will allow the public to better evaluate how well first responders protect and serve their communities.
The Portland Press Herald finally received the transcripts  in late November and reported that 19-year-old  Thompson had told police dispatchers that Pak made “death threats” against him and that he felt threatened enough to ask for an immediate police response.

“He’s giving me death threats, pointing his fingers like it’s a gun going bang,” according to the transcript.

When asked about the victim’s call, Biddeford Deputy Police Chief JoAnne Fisk told the Press Herald that she did not know whether a dispatcher shared that information with responding officers. She also said she didn’t know whether the officers had asked Pak if he had a gun.

Pak has pleaded not guilty. The case against him remains pending in York County Superior Court
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Cliff is executive editor of the Portland Press Herald. Some of the information for this piece previously appeared in the Press Herald.


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