Maine Center for Public Interest Reporting Uncovers Almost 1,000 Privileged Calls Recorded in Four County Jails, Sues York County for Denying Public Records Request
by Keith Sanders
On January 26, 2022, the Maine Monitor published a list of nearly 1,000 privileged calls illegally recorded between detainees and their attorneys from June 2019 to May 2020 at four county jails in the state. Not included, however, was any data from York County, the state’s second-most populous, so the news outlet’s publisher, the Maine Center for Public Interest Reporting (MCPIR), has filed suit pursuant to the state Freedom of Access Act (FOAA), 1 M.R.S. § 409(1).
In May 2020, the Monitor reported that a lawyer with the state Attorney General’s office listened to recordings of calls between attorneys and their incarcerated clients. Subsequently, after multiple public records requests, the investigative news service discovered 967 privileged calls were recorded at four of the state’s fifteen county jails, affecting some 200 defendants and 46 law firms.
The four counties, Androscoggin, Aroostook, Franklin, and Kennebec, released the requested data, but MCPIR was denied by eight other counties, including York County. According to Sigmund Schutz, a partner with Preti Flaherty in Maine who filed suit against York County on behalf of MCPIR, the county repeatedly denied requests for over fourteen months.
Schutz called the suit, filed in Kennebec County Superior Court on August 2, 2021, a “last resort,” adding that the “public records law is meant to avoid the kind of response [that essentially says], ‘trust me, we’re fine.’ It’s meant to allow the public and journalists, historians, academics—whoever—to be able to confirm for themselves what public institutions are doing.”
Prison phone giant Securus Technologies, a subsidiary of Aventiv Technologies, provides telephone services to the jail in York County and 13 other counties in the state. Its platform records communications of prisoners except with attorneys whose numbers are on an exempt list. The firm says it relies on jail officials to keep the list current, but the Monitor found that “several jails now rely entirely on the company to block the recordings.”
In any event, those records, Schutz claims in the suit, are “within the possession, custody, and control of the County,” which uses them “to monitor and track inmate communications by telephone.”
MCPIR’s request concerned only records that did not involve disclosure of the content of any privileged call. Instead the request related to Call Detail Reports (CDR) listing: (1) the telephone numbers of any Maine criminal attorney that were called by prisoners; (2) the Recording Audit Log Report, listing any prisoner calls to attorneys on the jail’s Attorney List; and (3) a username list to identify which jail employees downloaded and listened to privileged calls.
But all those requests were denied by York County Sheriff William L. King, Jr., who said denial was appropriate under FOAA because the information requested had not been received or prepared for use “in the transaction of government business,” so it did not constitute a public record under 1 M.R.S.A. § 420(3).
The sheriff also argued that the telephone numbers and names of attorneys amounted to information regarding private citizens, which both the state and federal courts have held not applicable for the purposes of public records requests.
Finally, Sheriff King offered that FOAA did not require agencies to “create a record that might be responsive to a request if no such record currently exists,” citing 1 M.R.S.A. § 408-A(6). Because his office did not possess a report detailing the information as requested, King denied the request.
The sheriff indicated that were he forced by a court to provide the information, then the county would have to charge roughly $1,600 for doing so. Schutz’s filing, however, notes that the information is “not for commercial purposes” and the “disclosure would contribute significantly to the public’s understanding of the operations and activities of government.” Thus pursuant to 1 M.R.S. § 408-A(11)(B), Schutz requested the court to waive any fees associated with the FOAA request. See: Maine Center for Public Interest Reporting v. York Cnty., Maine Super. (Kennebec Cnty.), Case No. CV-21-141.
Already one lawsuit has been filed by affected attorneys. John Tebbetts and two other lawyers sued Securus in August 2020 under federal wiretapping laws. But that suit was dismissed in November 2021 by the Maine federal district court for failure to state a plausible claim that Securus acted intentionally, which is the high bar a wiretap case must clear. See: Pratt v. Securus Techs., Inc., 2021 U.S. Dist. LEXIS 211558 (D. Me.).
Additional source: Maine Monitor
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Related legal cases
Maine Center for Public Interest Reporting v. York Cnty., Maine Super. (Kennebec Cnty.
|Cite||Case No. CV-21-141|
Pratt v. Securus Techs., Inc.
|Cite||2021 U.S. Dist. LEXIS 211558 (D. Me.)|