Friday, December 13, 2013
By Michael Shepherd email@example.com
State House Bureau
AUGUSTA -- A confidentiality bill motivated by a MaineToday Media public-access request for a 911 transcript relating to a December 2012 homicide in Biddeford was heard by a legislative committee Friday.
L.D. 495, sponsored by Sen. David Burns, R-Whiting, a retired state trooper, would alter the law to say "information or records that relate to a pending law enforcement investigation or a pending criminal prosecution" coming from 911 calls are entirely confidential. It would make illegal disclosure a class E misdemeanor under Maine law, punishable by a maximum of six months in jail.
Burns submitted the measure on behalf of the Maine Department of Public Safety, which oversees the Maine State Police.
A department attorney, Christopher Parr, said in testimony before the Legislature's Judiciary Committee that the bill is aimed at preventing "premature public disclosure" of sensitive case material.
"Just as importantly, the clarification also ensures that the due process rights of individuals that are accused of crimes are protected so that they receive a fair trial in court," Parr said.
The bill was opposed by the American Civil Liberties Union of Maine and an attorney who is representing MaineToday Media in the Biddeford-related case.
According to the National Conference of State Legislatures, only six states keep 911 recordings fully confidential. Maine is one of another five states that already place certain restrictions on the release of recordings or information contained in the recordings.
On Friday, Maine Department of Public Safety spokesman Stephen McCausland said the recordings of 911 calls are confidential in Maine, as is personal information contained in the calls. Transcripts are public but are redacted to eliminate personal information from being circulated.
"Media make requests (for transcripts) from time to time," McCausland said. "Once we tell them what the restrictions are, they usually don't bother."
Sigmund Schutz, the newspaper company's attorney, said in testimony that the state is already conservative enough on 911 disclosure.
"There is no reason to broaden confidentiality on this important information that sheds light on the performance of emergency responders and allows public oversight," he said. "It allows the public to play a watchdog role when it comes to our 911 system."
MaineToday Media has appealed a judge's March ruling to withhold 911 transcripts of a fatal Biddeford shooting in December 2012 after the Maine Office of the Attorney General and the Maine State Police rejected a request for transcripts.
In March, Superior Court Justice Roland Cole denied the release of transcripts of three 911 calls in the case against James Pak, 75, accused of killing Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18, and wounding a third person in a shooting on Dec. 29. Police were reported to have been at Pak's home shortly before the fatal shooting.
The attorney general's office has jurisdiction over homicide prosecutions, so it can control the release of what it deems to be investigative material.
In a response to MaineToday Media's access request, Deputy Attorney General William Stokes wrote that the "requested material constitutes intelligence and investigative information and should not be publicly released."
"It is the position we have taken in every single homicide investigation," Stokes wrote. "End of story."
Cole ruled that there is a "reasonable possibility" that public disclosure of those calls would interfere with Pak's case and could "hypothetically influence the input of potential witnesses." The company appealed to the Maine Supreme Judicial Court after that ruling.
A major point in the newspapers' case surrounds whether 911 call transcripts, public records, can be made confidential when placed in a law enforcement file.
Parr, the state police attorney, said he didn't intend to affect the outcome of the company's case by testifying in favor of the bill; but Burns' bill, he said, would clarify the issue in future cases.
Elizabeth Ward Saxl, director of the Maine Coalition Against Sexual Assault, supported the bill in testimony, saying sex crime victims' calls to law enforcement are "deeply personal." She suggested broadening the bill to make confidential all calls in which sexual assault is alleged.
However, Jill Barkley, a public policy advocate for the ACLU of Maine, said that while there may be investigative reasons to shield certain 911 calls, making disclosure of information a crime could hurt whistleblowers.
"A victim might be frustrated by lack of police response and may desire for tha t information to be made public," she said. "To criminalize disclosure of information that is routinely made public in other states goes too far."
Michael Shepherd -- 370-7652