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MAINE
SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 2003 ME 140
Docket: Ken-03-721
Argued: December
1, 2003
Decided: December
4, 2003
Panel: SAUFLEY,
C.J., and DANA, ALEXANDER, CALKINS, and LEVY, JJ.
BANGOR HISTORIC TRACK,
INC., et al.
v.
DEPARTMENT OF
AGRICULTURE, FOOD AND RURAL RESOURCES
and
MAINE HARNESS RACING
COMMISSION
PER CURIAM
[¶1] This matter is before the Law Court on
a motion for stay pending appeal filed by Bangor Historic Track, Inc., Capital
Seven, LLC, and Shawn A. Scott (hereinafter BHT). The motion, filed pursuant to M.R. App. P. 10(c), seeks to
(1) stay the order of the Superior Court (Kennebec County, Marden, J.) denying BHT's motion
for a temporary restraining order, and (2) enjoin the Department of Agriculture,
Food and Rural Resources and the Maine Harness Racing Commission from releasing
to the public information received in connection with BHT's application for a
harness racing license pursuant to 8 M.R.S.A. § 271(1) (Supp. 2002). BHT contends that if the information is
disclosed while their appeal is pending, their complaint for injunctive relief
will become moot and they will suffer irreparable harm. For the reasons set out below, we deny
the motion for stay and the injunction.
[¶2] BHT has applied to the Maine Harness
Racing Commission for a harness racing license. The governing statute, 8 M.R.S.A. § 271(1), requires, among
other things, that the Commission be satisfied that "the applicant, its
members, directors, officers, shareholders, employees, creditors and associates
are of good moral character; that the applicant is financially responsible; and
that the award of racing dates to the applicant is appropriate under the
criteria contained in subsection 2."[1] During the summer of 2003, BHT
submitted a large volume of information to the Commission, and the Commission
staff obtained other information, including records from the states of Nevada,
Louisiana, and New York. In
September 2003, the Commission, by agreement, ordered that distribution of the
out-of-state documents would be limited to the parties involved in the
licensing proceedings.
[¶3] In November 2003, the Maine Attorney
General received four separate Freedom of Access Act, 1 M.R.S.A. §§ 401-410
(1989 & Supp. 2002), requests.
The requests were from news media reporters seeking access to copies of
the BHT application documents, including a background investigation and a draft
"suitability report" prepared by staff of the Commission and the
Department. On November 20, 2003,
the Commissioner of Agriculture responded to the access requests and agreed to
release redacted versions of the requested documents at noon on Wednesday,
November 26.
[¶4] BHT filed a complaint for declaratory
and injunctive relief, alleging that certain information designated to be
released to the public by the Commissioner of Agriculture is confidential and
not subject to disclosure pursuant to the Freedom of Access Act. Additionally, BHT alleges that certain
materials are nonconviction data that may be disseminated only to criminal
justice agencies pursuant to 16 M.R.S.A. § 613 (1988); that disclosure of
certain materials would constitute an invasion of personal privacy or disclose
confidential commercial or financial information prohibited by 16 M.R.S.A §
614(1)(C) & (F) (Supp. 2002); that public disclosure of records from other
states was barred by agreements with those states; and that the Commissioner of
Agriculture lacked authority to disclose records that were subject to the
Harness Racing Commission's nondisclosure order.
[¶5] The trial court afforded BHT a prompt
hearing on the request for a temporary restraining order. During the hearing on November 25,
the court heard argument and received affidavits and other documents from
BHT, the State, the news media intervenors, and an individual third party
whose name apparently appears in the records that are subject to dispute. However, the many documents at issue were
not submitted to the court for in camera inspection. Of particular note, no party provided
copies of the agreements with other states, which BHT contends prohibit
disclosure of material provided from those states. The Attorney General represents that the agreements with other
states contemplate the possibility of disclosure in response to a Freedom
of Access Act request.
[¶6] On November 26, the court entered a
detailed order denying BHT's motion, concluding that "[t]he plaintiffs claim
irreparable harm but have not presented any information, by affidavit or
otherwise, describing their harm or the lack of remedy at law. Simply saying that it will be harmful
is not sufficient, particularly where finances and moral character are the
essence of the issue at hand." The
court rejected BHT's contention that it should enforce the Harness Racing
Commission's nondisclosure order, reasoning that (1) BHT failed to take action
with the Commission to enforce the Commission's order; and (2) the applicable
statute governing the confidentiality of Department of Agriculture information,
7 M.R.S.A. § 20 (2002), grants the Commissioner, not the Commission, the
authority to determine what information is confidential.
[¶7] BHT immediately motioned the Superior
Court to stay the effect of its order, but the court denied the motion. BHT then filed this appeal and an
emergency motion to stay, which was granted temporarily to permit our hearing
on the motion.
II. RELEVANT STATUTES
[¶8] Maine's Freedom of Access Act provides
that a record is public if it "is in the possession or custody of an agency or
public official of this State . . . and has been received or prepared for use
in connection with the transaction of public or governmental business or
contains information relating to the transaction of public or governmental
business." 1 M.R.S.A. § 402(3)
(Supp. 2002). The Act also
provides that it "shall be liberally construed and applied to promote its
underlying purposes and policies" favoring disclosure. Id. § 401 (1989). Under the Act, some records are
excepted from the general proposition favoring disclosure, including records
that "have been designated confidential by statute." Id. § 402(3)(A).
The Department of Agriculture and the Commission are governed by 7
M.R.S.A. § 20, addressing access to its records, which states:
§ 20. Confidential information.
1. Types of information. Information provided to the department
voluntarily or to fulfill reporting requirements is designated as confidential
for the purposes of Title 1, section 402, subsection 3, paragraph A if:
A. The person to whom the information belongs or
pertains has requested that it be designated as confidential; and
B. The department has determined that failure to
designate the information as confidential would provide competitors an
opportunity to obtain business or competitive advantage over the person to whom
the information belongs or pertains or would result in loss or other
significant detriment to that person.
Summary reports of
information designated as confidential may be published using aggregate data
that does not reveal the activities of an individual person or firm.
Id.
III. LEGAL ANALYSIS
[¶10] Failure to demonstrate that any one of these
criteria are met requires that injunctive relief be denied. Town of Charleston v. Sch. Admin.
Dist. No. 68, 2002
ME 95, ¶¶ 6-7, 798 A.2d 1102, 1104. A temporary restraining order may be
granted only if it "clearly appears from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant."
M.R. Civ. P. 65(a); see also Town of Charleston, 2002 ME 95, ¶ 6, 798 A.2d at 1104; Emerson, 563 A.2d at 768.
"[P]roof of irreparable injury is a prerequisite to the granting of
injunctive relief." Bar Harbor
Banking & Trust Co. v. Alexander, 411
A.2d 74, 79 (Me. 1980).
"Irreparable injury" is defined as "injury for which there is no
adequate remedy at law." Id.
[¶11] Because injunctive relief is an
equitable remedy, we review a court's grant of injunctive relief for an abuse
of discretion. Eaton v. Cormier, 2000 ME
65, ¶ 4, 748 A.2d 1006, 1008.
However, fact-finding that is a prerequisite for judicial action, such
as a finding of irreparable injury, or lack thereof, is reviewed for clear
error. See State v. Pineo, 2002 ME 93,
¶ 6, 798 A.2d 1093, 1096.
[¶12] BHT, as the moving party, has the
burden of proof to present evidence sufficient to support its claims of
irreparable injury. Despite this
burden, BHT presented the court with no documents for in camera review to
support its claim that if the documents are disclosed it will result in
injury. BHT presented none of the
contracts with the other states to support its claim, disputed by the Attorney
General, that the Commission had unequivocally agreed not to disclose the
records received from those other states.
In addition, BHT presented nothing to demonstrate that the redactions
contemplated by the Commissioner do not resolve its privacy and related
concerns. Beyond vague
generalities suggesting that disclosure may cause injury, there is insufficient
evidence in the record to support a finding of irreparable injury. When the record does not support a
finding of irreparable injury, injunctive relief must be denied. Town of Charleston, 2002 ME 95, ¶ 7, 798
A.2d at 1104. We agree with the
trial court that injunctive relief must be denied here.
The entry is:
Motion for stay and for
an injunction denied. Temporary stay vacated. Remanded to the Superior Court.
________________________________________
Attorneys for the plaintiffs:
Stephen E. F. Langsdorf,
Esq. (orally)
William C. Moorhouse,
Esq.
Preti, Flaherty, Beliveau,
Pachios & Haley
45 Memorial Circle
P.O. Box 1058
Augusta, Maine 04332
Attorneys for the defendants:
G. Steven Rowe, AG
Jeffrey R. Pidot,
AAG (orally)
Mark Randlett, AAG
State House Station 6
Augusta, Maine 04333
Attorneys for the intervenor:
Thad B. Zmistowski, Esq. (orally)
Gordon H. S. Scott, Esq.
Eaton Peabody
80 Exchanage St.
P.O. Box 1210
Bangor, Maine 04402
[1] The Department of Agriculture has certain strategic and leadership functions with the Commission, and is required to "maintain an ongoing review of the statutes and rules relating to harness racing and make recommendations to the Governor, the Legislature and the commission." 8 M.R.S.A. § 263-B(3) (Supp. 2002).