The Maine Supreme Judicial Court has ordered the state to release transcripts of 911 calls in a murder case to the Portland Press Herald, ruling that such documents are public records.
The unanimous decision, issued Thursday, rejected the state’s longstanding practice of withholding 911 transcripts in homicide cases. It overturned a ruling by a Superior Court judge in March that releasing the transcripts of three 911 calls in the case against James Pak, who is accused of killing two people and wounding a third, could interfere with the legal case.
The first 911 call was made by 19-year-old Derrick Thompson at 6:07 p.m. on Dec. 29, about 45 minutes before he and his girlfriend, Alivia Welch, 18, were shot dead in Thompson’s apartment in Biddeford. He told the dispatcher during that call that Pak, his landlord, was threatening him and banging on the door.
The second 911 call came three minutes after police officers left the apartment. Thompson’s mother, Susan Johnson, 45, called at 6:51 p.m., saying that Pak, 75, had shot her in the back, then killed her son and Welch, according to police.
The Press Herald sought transcripts of those two 911 calls and a third call, made by Pak’s wife, to find out exactly what Thompson told the dispatcher and why police considered the situation a “civil issue” and left just minutes before it turned deadly.
In a ruling March 8, Superior Court Justice Roland Cole found a “reasonable possibility” that public disclosure of those calls could interfere with the case and “hypothetically influence the input of potential witnesses.”
Before Thursday’s 7-0 ruling by the Supreme Judicial Court, the transcripts were subject to what the newspaper considered a blanket withholding by state law enforcement officials.
The appeal by MaineToday Media, Inc., parent company of the Press Herald, challenged Cole’s ruling on two points: whether 911 call transcripts, which are otherwise public record, can be made confidential when placed in a law enforcement file, and whether Cole had sufficient evidence to find a “reasonable possibility” that releasing the transcripts would interfere with the case.
“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,” said the ruling, written by Justice Ellen Gorman.
The ruling directs the case to be returned to Superior Court with an order that will require state authorities to release the transcripts from the Pak case.
The ruling makes no mention of how requests for 911 transcripts in future cases will be handled, but it sets a legal precedent for the release of transcripts that the state had deemed confidential.
“The court has made it clear that government secrecy cannot win out over the public’s right to know,” said Cliff Schechtman, executive editor of the Press Herald. “This ruling will allow the public to better evaluate how well first responders protect and serve their communities.”
Pak has pleaded not guilty. The case against him remains pending in York County Superior Court.
Deputy Attorney General William Stokes, who represented the state in the lawsuit, said he was disappointed and “a little surprised” by the court’s decision. He said he believed that the state’s argument for withholding 911 calls and transcripts was strong.
“An investigation doesn’t end when someone is charged,” he said. “We’re always concerned when that type of information is in the public domain. But we’ll comply with the decision.”
Asked when he will release the 911 transcripts in the Pak case, Stokes said his staff will have to redact any information that can be withheld by law. He said the staff will contact family members of the victims so they are not “blindsided” by new information in the newspaper.
Stokes said it’s too early to tell what precedent the ruling might set. “I don’t know if this is something the Legislature will want to weigh in on, or whether defense attorneys have an interest,” he said.
Attorney General Janet Mills told The Associated Press that her office will comply with the ruling, but she wishes the justices had addressed the potential effect on trials.
“If we don’t protest the disclosure of something that could impair the right of a fair trial for the defendant, then we could be accused of not allowing a fair trial after a conviction,” she said.
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 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.”
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, including Maine, impose some restrictions. Six states keep 911 recordings confidential.
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.”
He said that in Connecticut, where news organizations have been fighting for access to 911 calls associated with the shootings at Sandy Hook Elementary School, lawmakers are discussing ways to keep those records confidential. In Maine, a bill that sought to keep 911 calls confidential died in the Legislature’s most recent session.
Zachary Heiden, legal director for the American Civil Liberties Union of Maine, called Thursday’s 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.
Heiden said public-access victories dealing with law enforcement records are rare.
“Generally, it’s very hard for the public to obtain information about how law enforcement and prosecutors are doing their job,” he said. “Hopefully, this decision will push back against that.”
Scott Dolan can be contacted at 791-6304 or at:
Eric Russell can be contacted at 791-6344 or at: