A new Maine law will require law enforcement agencies to be more transparent about the misconduct of their officers, but police union contracts can still dictate how long discipline records are retained, prompting some to see a continued threat to the public’s right to know.
After Gov. Janet Mills signed LD 1397 into law on June 12, all public agencies will be required to keep discipline records about confirmed misconduct that actually detail what their employees did wrong. While lawmakers originally intended for the public records to contain information about the misconduct, the Bangor Daily News and Portland Press Herald found in a joint investigation into the Maine State Police that they frequently did not.
LD 1397 will now require state and county governments in their discipline records to “state the conduct or other facts on the basis of which disciplinary action is being imposed and the conclusions of the acting authority as to the reasons for that action.” That directive already exists in statute for municipal governments.
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The change comes more than two years after Maine’s two largest daily newspapers, the BDN and Portland Press Herald, formed a joint reporting team despite being competitors to investigate how the Maine State Police kept officer misconduct secret. By obtaining and analyzing more than five years of public discipline records, the two newspapers showed how the agency routinely defied the spirit of Maine’s open records law by including so little information in them that the public could not know what officers did wrong.
In addition to keeping discipline records with minimal information, the files were also incomplete. That was in part because the troopers’ union contract allowed some public records of discipline to be destroyed. In other instances, it’s not clear why there were no discipline records: Troopers were arrested or had their certifications revoked for misconduct but lacked a discipline history with the agency.
The lack of transparency made it impossible to know from the discipline records alone whether the Maine State Police was holding its officers accountable.
What’s more, the state police blacked out some details of misconduct when it released the records to the newspapers. The BDN and Portland Press Herald filed a lawsuit in 2021 against the agency, arguing that key portions of discipline records provided to the newspapers were unlawfully redacted and that some of the records referred to additional discipline that had not been handed over, with the result that important information about police misconduct remained hidden.
More than a year later, a Superior Court judge ordered the state police to lift the redactions and do another search for records of misconduct, which it did.
Judy Meyer, the editor of the Sun Journal, Morning Sentinel and Kennebec Journal and member of both the Right to Know Advisory Committee and Maine Freedom of Information Coalition, said the premise behind the bill was the newspapers’ investigation and lawsuit, in addition to an audit of police departments performed by the Maine Freedom of Information Coalition.
The audit requested five years of discipline records from police departments across Maine, she said. The results were mixed.
“A third of departments didn’t respond to us at all, which is infuriating,” she said. “But we got redacted records. We got, ‘Those records are no longer available.’ We got a series of ridiculously complete letters where departments clearly took their responsibility to document discipline and keep it in files very seriously. So it was all over the place.”
Originally, LD 1397 aimed to not just require details in the records but also to eliminate public employees’ ability to use collective bargaining agreements to obscure discipline from public view. Police unions currently bargain over how long their agencies can keep discipline records or use them to make future personnel decisions. The bill also would have explicitly required agencies to make discipline records available upon request regardless of whether they had been moved.
But members of the Legislature’s judiciary committee voted to amend the bill to remove those sections.
The law is a “half-step” in the right direction, bringing towns, counties and the state into alignment on what must be in their employees’ discipline records, Meyer said, but not addressing union contracts’ ability to destroy the records will continue to restrict the public’s right to transparency.
Local agencies have to keep discipline records for 60 years after an employee leaves unless a collective bargaining agreement requires the records to be destroyed sooner, according to the Maine State Archives.
“What we lost in this conversation is aligning the retention for these records and this concept that you can collectively bargain your way out of maintaining a disciplinary record,” Meyer said.
Not addressing unions’ ability to destroy discipline records also means that public employees who do not have a union or a collective bargaining agreement can’t adjust how long the records are retained, she said.
Sen. Anne Carney, D-Cape Elizabeth, supported amending the bill to remove the section that would have limited unions’ ability to negotiate over retaining the records.
“I just really felt that the judiciary committee needed to hear from all of the voices on the issue before moving forward with the other changes that were proposed by the original version of the bill,” said Carney who is a chairperson of the Legislature’s judiciary committee and a member of the Right to Know Advisory Committee.
The Right to Know Advisory Committee meets every fall, and Carney said she plans to ask it to take up this issue again.
When the BDN and Portland Press Herald received discipline records from the Maine State Police in late 2020 after filing public records requests, they decided to investigate the police with vague descriptions of misconduct — drawing on police sources, licensing documents, court records, vehicle crash reports and witness interviews — to uncover what they had done.
Confirming details of misconduct then allowed two outside experts to weigh in on whether the punishment had been adequate. They concluded it was not. In one instance, it turned out, a Maine State Police trooper had hindered an investigation into his former fiancee’s hit and run. He received a two-day unpaid suspension. Another kept secret that he saw a fellow officer punch a handcuffed man in the face; he received a one-day unpaid suspension. A third trooper mishandled the investigation of a fatal car crash and also received a one-day unpaid suspension.
The journalism followed additional reporting by the BDN in 2019 and 2020 into how all county sheriffs handled discipline. The resulting series, Lawmen Off Limits, showed how a third of sheriff’s office records documenting serious discipline didn’t contain enough information for the public to understand what had happened, even when an officer was fired.
While there may now be more information contained in discipline records, the work of ensuring full public access to important information must continue, Meyer said.
“We sacrificed public access in the mix,” Meyer said. “What I find so frustrating is that there was all of this data collected; there was all this evidence in court filings, clearly painting a problem that we thought this bill would fix. And then it [was] walked back. And that’s frustrating.”