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Agency to fork up nearly $200,000 for shielding public records related to Kennebec County jail, Nov. 10, 2023.

The Maine County Commissioners Association Risk Pool is the first government entity in Maine to be penalized for wrongly withholding documents since the Freedom of Access Act became law in 1959.

AUGUSTA — Taxpayers across the state will have to pay the price for one agency’s failure to turn over public records detailing a settlement to a Black man who alleged he had been beaten by a guard at the Kennebec County jail.

And that price, to date, is nearly $200,000 — though the final number is still being tallied.

The consequence is the result of a historic ruling in Maine that was the first to financially penalize an agency for acting in “bad faith” in withholding public documents. The decision also starts to build a framework for penalizing others who wrongly shield public records in the future.

“This is an interesting case and a needed one,” Justin Silverman, executive director of the New England First Amendment Coalition, said recently.

While Maine’s freedom of information law allows those who prevail in public records lawsuits to recoup their legal fees if an agency is found to have exhibited bad faith in shielding them, Silverman said, no court had made a bad faith finding in a public records case since the origin of the Freedom of Access Act. That act became law in 1959.

As a result, members of the public, news organizations and others who have faced barriers in obtaining public records have been deterred from suing for them because of how much it costs to litigate and the lack of precedent — until now — for recovering any money if they won, he said.

“It can be very burdensome for the public and for many newsrooms, quite frankly, to take these cases to court to force these government agencies to comply with the law and provide transparency and let us know what’s happening within government,” Silverman said. “This isn’t a matter of those in government providing information only when they feel that it’s convenient to do so. There is a state law that requires these public records to be disclosed.”

The case began when the ACLU of Maine sued the Maine County Commissioners Association Risk Pool — the entity that insures the state’s county governments — last year on behalf of a Florida-based prisoner rights group that tracks settlements to inmates.

That organization, the Human Rights Defense Center, had filed a Freedom of Access Act request in June 2021 seeking any documents showing payments from the risk pool to any party in the federal excessive force lawsuit brought by former inmate Jonathan Afanador.

Malcolm Ulmer, who oversees the risk pool, responded with a document that stated only that the case had been settled for “one dollar and other valuable consideration.”

A month earlier, Ulmer had told the Portland Press Herald the group paid $30,000.

When the defense center sought more details to explain the discrepancy, it was provided with a copy of that story and nothing else.

Afanador alleged in the excessive force lawsuit that a corrections officer pepper sprayed him in the face, assaulted him and directed a racial slur at him during a “full floor shakedown” at the jail in Augusta. He was there awaiting trial for drug trafficking charges. The complaint also states Afanador was put in isolation and did not receive medical attention until the next day.

The battle for records related to Afanador’s case landed in a Superior Court, where Justice Daniel Billings found the risk pool acted in bad faith by withholding the documents. That finding cleared the pathway to impose a financial penalty on the risk pool, requiring the taxpayer-funded group to pay the cost of litigating the case.

Billings also ordered the risk pool to turn over the records. The risk pool instead appealed Billing’s decision to the Maine Supreme Judicial Court. In August, the state’s highest court affirmed the earlier ruling and said the agency’s behavior could be viewed only as “deceptive and abusive of the (Freedom of Access Act) process.”

Paul Wright, director of the Human Rights Defense Center, said the behavior of the risk pool has confounded him.

“The fact that they’re signing these settlement agreements for $1 while they are actually settling for a different sum of money is kind of bizarre,” Wright said. “I’ve never seen anything like this anywhere in the country.”

Every year, he said, his organization files anywhere from 200 to 300 public records requests with public agencies across the United States.

After more than two years, 18 pages of records were finally turned over to Wright in September.

They include a copy of a cover letter from the risk pool’s attorney to Afanador’s attorney, a bank reconciliation that shows the date and check number of the check issued to Afanador, a copy of the $30,000 check, the risk pool’s voucher and a copy of the risk pool’s bank statement that includes the check.

“It should be quite apparent to you by now that the claim by Jonathan Afanador against Kennebec County was settled for $30,000, that the case was settled relatively early in the proceeding before the initiation of formal discovery and that the payment of $30,000 and no more was made to Afanador and his attorneys in settlement of his claim,” wrote Jeffrey H. Edwards, the attorney representing the risk pool, in a Sept. 21 letter to the ACLU of Maine.

Last month, the ACLU of Maine submitted its motion for attorney’s fees, totaling $152,677.07.

Carol Garvan, executive director for the Maine ACLU, said the court will not automatically award that amount; it’s up to the justice to decide whether to agree with that proposal or order a different amount.

Edwards said he would file an opposition to the application of attorneys fees.

“I expect that (Justice) Billings will review the application, review my position on the application and reach a fair and just resolution of the issue,” Edwards said.

Ulmer told the Kennebec Journal a final tally of paid legal fees is not yet available, but that to date the risk pool has paid $45,495.86.

The entity is funded by assessments paid by its county government members. County governments in Maine are, in turn, funded by property taxes.

“The information requested isn’t unique to newsgathering and the role of journalists,” Silverman said. “It’s relevant to us all because the government is there representing us and presumably working on our behalf.  We just don’t know if that’s actually occurring unless we have the information needed to see what government’s doing and to hold those in government accountable.”

The guard accused of assaulting Afanador, Nathan Willhoite, still works in Maine law enforcement as a patrol officer for the Wiscasset Police Department.