A battle for records related to a settlement for a former inmate at the Kennebec County Correctional Facility in Augusta has created an important precedent in Freedom of Access Act cases. Above, the Kennebec County Correctional Facility in September 2020. Joe Phelan/Kennebec Journal file

AUGUSTA — A Superior Court justice has ordered the Maine County Commissioners Association Risk Pool to pay more than $130,000 in attorney’s fees after the publicly funded agency repeatedly failed to provide information as part of a public records request.

It is the first ruling to financially penalize a Maine agency for wrongly shielding public records.  

The money will reimburse the American Civil Liberties Union of Maine for costs incurred when seeking documents on behalf of the Human Rights Defense Center. The Florida-based prisoner advocacy group had requested details on the settlement in a federal lawsuit brought by a former inmate at the Kennebec County Correctional Facility in Augusta who alleged a guard used excessive force against him.

The total cost to taxpayers, though, is more than $130,000. The risk pool reports it is also paying more than $75,000 to its own lawyer, bringing the total cost the agency is paying out so far to $206,250.07.

The ACLU had initially sought more than $150,000 from the risk pool to recoup the cost of litigating the case.

At the end of last year, the risk pool, which insures the state’s county governments, proposed halving that amount. While Justice Daniel Billings rejected that, he directed the ACLU to scale back its estimate.


The state’s Freedom of Access Law, which dates to 1959, 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.

Until Billings’ ruling in this case, no court in Maine had made a bad faith finding.

Jonathan Afanador alleged in a 2019 lawsuit that a corrections officer had sprayed him in the face with pepper spray, assaulted him and directed a racial slur at him during a “full-floor shakedown” at the Kennebec County Correctional Facility. Afanador was at the jail while awaiting trial for drug trafficking charges.

The complaint also alleges Afanador, who is Black, was put into isolation and did not receive medical attention until the next day.

The Human Rights Defense Center sought information about the settlement when it saw two conflicting reports on what had been paid out. In one report, it was $1 and other valuable consideration. In another, it was $30,000.

Initially, the information provided in response to its Freedom of Access Act request was a copy of a Portland Press Herald story reporting that the risk pool had paid $30,000. No actual public documents were provided to show what had been paid.

Despite attempts by the Human Rights Defense Center to clarify its request, no documents were provided for nearly two years. They were handed over only after the Maine Supreme Judicial Court affirmed Billings’ finding that the risk pool had acted in bad faith and said the records should be provided.

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

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