AUBURN – In an attempt to get Auburn officials to release a report detailing police behavior in the arrest of Mayor Norm Guay, the Sun Journal is taking the city to court.

Guay was arrested Aug. 4 on a charge of drunken driving. A Breathalyzer test showed he had a blood-alcohol level of 0.01 percent, well below the legal limit of 0.08.

A week after he was issued a summons, which was later dropped by the attorney general, City Manager Pat Finnigan hired a law firm to investigate officers involved in his arrest.

The lawyers submitted an 80-page report to the city in November.

Finnigan issued a five-page summary of their findings, including the conclusion that some officers acted inappropriately. She has refused to release the entire report.

In a lawsuit filed in Androscoggin County Superior Court, the newspaper argues that the report is a public document under the Maine Freedom of Access Law and that the city’s refusal to release it is a violation of the Maine Civil Rights Act.

The newspaper is asking the court to review the report and to order the city to make it public.

The city has argued that the report is confidential because it contains names of employees. To counter that claim, the newspaper has submitted waivers from 18 Auburn police officers who have waived their rights to confidentiality.

Still, city officials say the newspaper’s lawsuit has no merit.

Two reasons

On Monday, a day before the Sun Journal was scheduled to present its case at a hearing, the city filed a motion asking the judge to rule against the newspaper without hearing arguments.

The city claims the report is not a public document, as described by the Maine Freedom of Access Law, for two main reasons.

Lawyers for the city argue in their motion for summary judgment that the report is confidential despite the officers’ statements, because no state law says employees subject to disciplinary action can waive their confidentiality.

The city also argues that release of the report could interfere with an ongoing criminal investigation.

Lie-detector tests

In an attempt to prove that the report is a criminal record, not a public document as defined by Maine law, the city claims police Chief Richard Small helped lead the original investigation and that he is still interviewing officers to determine whether disciplinary action is necessary.

As part of his continuing investigation, the chief may require members of the department to undergo lie-detector tests.

The purpose of the tests, in part, would be to determine which employee gave a copy of the original police report on the mayor’s arrest to the Sun Journal.

Days after Guay was arrested on a charge of operating under the influence, the Sun Journal obtained a copy of the report detailing the events that led to the arrest.

In their motion, the city’s lawyers refer to the report as stolen, and they claim that the person responsible for giving it to the Sun Journal could be charged with theft.

Releasing the full report would shape the employees’ answers to the polygraph questions, the city argues.

“An apparent reason why the police union is cooperating with the plaintiff to obtain a copy of the investigative report is that the union’s access to the report will enable the subjects of the investigation to know, in detail, what the police chief knows and what he does not know,” the city’s lawyers state in their motion.

10 days

The Sun Journal plans to argue the officers’ waivers are enough to release the report.

The newspaper also hopes to prove that the law firm’s report is a public document, not a criminal record.

“The report was prepared at the request of the City of Auburn by a law firm engaged and paid for by the City of Auburn,” the newspaper’s lawsuit states.

In addition, the Sun Journal points out that the contract for the police union states that officers must be disciplined within 10 days after an investigation is complete.

“There has been no notification from the police department concerning discipline of any employees, though far more than 10 administrative days have passed since the incident,” the newspaper argues.

A hearing on the newspaper’s lawsuit was delayed as a result of the city’s motion for summary judgment. It is scheduled for Jan. 2.

lchmelecki@sunjournal.com

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