civil action no. complaint introduction · 6. on september 23, 2004, the gao (government...

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IN THE SUPERIOR COURT OF PISCATAQUIS COUNTY

Dover-Foxcroft Piscataquis County

Samuel Katz,

Plaintiff,

v.

Hospital Administrative District #4

Defendant.

Civil Action No. _______

COMPLAINT

Plaintiff Samuel Katz by way of this complaint against Hospital Administrative District #4 alleges as follows

INTRODUCTION

1. This is a lawsuit seeking to enforce rights to inspect government records under Maine Freedom of Access

Act (“FOAA”), 1 MRSA § 401 et seq. Plaintiff Samuel Katz, a Dover-Foxcroft resident, requested access

to government records from Defendant Hospital Administrative District #4, on multiple occasions.

2. In some requests, Plaintiff Katz has received written notice denying his request for access to the

government records. Pursuant to 1 MRSA § 409(1), plaintiff has filed this appeal within 30 calendar days

of receipt of the notice of denial.

PARTIES

3. Plaintiff Samuel Katz is an individual who resides in Piscataquis County in the Town of Dover-Foxcroft.

4. Defendant Hospital Administrative District #4 is a government entity established under the laws of the

State of Maine. The Hospital Administrative District’s principal place of business is 897 West Main Street

Dover-Foxcroft, Maine.

JURISDUCTION AND VENUE

5. Plaintiff petitions for review of the denial of his request for government records pursuant to M.R. Civ. P.

80B. Venue is properly laid in Piscataquis County because Defendant is a public agency located in

Piscataquis County and because the cause of action arose in Piscataquis County.

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FACTUAL ALLEGATIONS

6. On September 23, 2004, the GAO (Government Accountability Office) published a report titled “Diploma

Mills Are Easily Created and Some Have Issued Bogus Degrees to Federal Employees at Government

Expense”.

7. The same GAO investigative report names Kennedy Western University as a diploma mill.

8. Kennedy Western University shut down in 2009 after failing to become accredited.

9. The CEO of Defendant, Marie Vienneau indicates on her public LinkedIn page that she obtained a

Master’s Degree from Kennedy Western University in 2005.

10. On February 27th, 2019, Defendant’s Board voted 15-3 to enter into an Agreement and Plan of Merger

with Eastern Maine Health.

11. Article 6.3 of the Agreement and Plan of Merger with Eastern Maine Health allows Eastern Maine Health

to begin to Consult with Defendant on operational decisions upon execution of the agreement.

12. Article 7.11 of the Agreement and Plan of Merger with Eastern Maine Health requires that Defendant

lobby the legislature, seek positive media coverage, testify in favor of the Merger Legislation, do

everything in their power to advance Merger Legislation, and to coordinate all efforts to with Eastern

Maine Health.

13. Section 8.7 of the Agreement and Plan of Merger with Eastern Maine Health confirms that Defendant

conducted a reverse diligence of Northern Light Health.

14. Article 11.6 of the Agreement and Plan of Merger with Eastern Maine Health requires that Defendant and

Eastern Maine Health agree on the terms of any press release or public announcement related to the

agreement.

15. On March 19th, 2019, Defendant CEO signed and executed the agreement.

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16. On April 21st, 2019, Plaintiff submitted a written request to Defendant seeking the disclosure of Marie

Vienneau’s employment contract. A copy of Plaintiff ’s request letter is attached hereto as Exhibit 1.

17. Plaintiff has never received a reply from anyone identifying themselves as Defendant’s Public Access

Officer as defined under 1 MRSA § 413 1 in response to any FOAA request.

18. On April 26th, 2019, Julius Ciembroniewicz, Defendant’s Counsel responded to Plaintiff denying the

request for the employment contract. See Exhibit 2.

19. The records requested by Plaintiff are public records as defined by 1 MRSA § 402, and are not subject to

any exemption.

20. Plaintiff has a legitimate public and private interest in the records requested, and Plaintiff’s interest is not

outweighed by Defendant’s interest in keeping the records secret.

21. Other responses to Plaintiff for other FOAA Requests have been made by Mr. Ciembroniewicz.

22. On May 14th, 2019, Plaintiff wrote to Mr. Ciembroniewicz and stated that he would prefer to work with

Defendant’s Public Access Officer. Mr. Ciembroniewicz replied that he would inquire as to whether

Defendant had a Public Access Officer.

23. Defendant is required to appoint a Public Access Officer under 1 MRSA § 413 1.

24. On May 16th, 2019, Defendant CEO wrote to Plaintiff that Julius Ciembroniewicz is organizing all FOAA

requests.

FIRST COUNT

(Freedom of Access Act Violation)

25. Plaintiff incorporates and realleges each of the paragraphs above.

26. Maine’s FOAA provides that “The Legislature finds and declares that public proceedings exist to aid in

the conduct of the people's business. It is the intent of the Legislature that their actions be taken openly

and that the records of their actions be open to public inspection and their deliberations be conducted

openly.” 1 MRSA § 401. To this end, “a person has the right to inspect and copy any public record . . .

within a reasonable period of time after making a request to inspect or copy the public record.” 1 MRSA

§ 408-A

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27. June 27th, 2018 Defendant Board Meeting minutes indicate that Defendant received incorrect legal advice

from their former attorney, Craig Nelson, ME Bar #000766, as follows: “ are board members required to

mandatory training under the Freedom of Access Act (no as they are not municipal officers…” Please see

Exhibit 3 top of Page 10.

28. This statement completely contradicts 1 MRSA § 412 3 H which requires elected officials on a Hospital

Board to receive mandatory FOAA training and receive a certificate of completion for taking the

mandatory training.

29. During the same meeting, a new Confidentiality Policy was implemented that required Defendant Board

members to follow the policy “As a condition of service” Please see Exhibit 3, middle of Page 10.

30. Burlington v Hospital Administrative District #1 00-426. Supreme Judicial Court of Maine. April 12,

2001 ¶ 19 provides for very broad FOAA authority and concludes that documents, including compensation

information and contracts with individuals employed by third parties working on behalf of the public are

related to “public business” and therefore are subject to FOAA “We conclude that the contract with

Quorum is a document connected with public business; the contract relates to the management of a hospital

which was constructed and is maintained for the benefit of the public with the use of fund-raising authority

granted by the Legislature, which authority is exercised by elected citizens. For the same reason, we

conclude that the compensation records of the management employees are records prepared for public

business.” Please see Exhibit 4.

31. Furthermore, in Burlington v Hospital Administrative District #1 ¶ 23 Justice Alexander added “I concur

that the Freedom of Access Act should be broadly construed to allow access to all documents relating to

public contracts that are within a public agency's possession and control, unless subject to an exemption

in the law…. If the … compensation records are shared with or approved by HAD # 1, they are public

records…”

32. In refusing to timely produce some of the requested government records for the contract, Defendant relied

upon a flawed legal analysis in determining that the employment contract both constitutes a personnel

record under 26 MSRA § 631 and that it was designated confidential by statute.

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33. First, 26 MSRA § 631 is not listed as an exception to FOAA on the State’s own website dedicated to

listing each of the exceptions to FOAA on a search under Title 26. Please see Exhibit 5.

34. Secondly, under Burlington it is entirely reasonable to conclude that an employment contract between

Defendant and their own Employee is a contract within the Defendant’s “control” and relates to “public

business” and therefore, subject to disclosure under FOAA.

35. Defendant also relied upon 1 MSRA § 434 2 (C) and (D) in making the denial.

36. Similar to 26 MSRA § 631, 1 MSRA § 434 is not listed as an exception to FOAA on the State’s own

website FOAA on a search under Title 1. Please see Exhibit 6.

37. 1 MSRA § 434 falls under Subchapter 1-A of Title 1. Subchapter 1-A provides guidance to ongoing

legislative review of making determinations of statutory exemptions to FOAA and has no relation to

existing statutory exemptions. As an example, 1 MSRA § 434 2 states: “Upon referral of a proposed

public records exception from the joint standing committee of the Legislature having jurisdiction over the

proposal, the review committee shall conduct a review and evaluation of the proposal and shall report in

a timely manner to the committee to which the proposal was referred. The review committee shall use the

following criteria to determine whether the proposed exception should be enacted.”

38. Defendant also relied upon 1 MSRA § 434(C) in making the denial with no reference to which Federal

law designates a contract used in the operation of a public entity as confidential.

39. Defendant also relied upon 1 MSRA § 434(D) which refers to an individual right to privacy in determining

whether or not an exception should be legislated.

40. To the degree that there is an expectation of privacy, the backdrop of the facts in this case provide for a

valid public interest in the disclosure of the employment contract of a CEO in possession of a “diploma

mill” Master’s Degree. Furthermore, Defendant conducted reverse diligence of Northern Light Health,

Defendant CEO also entered into an agreement that ended Defendant’s ability to operate in an independent

manner before any public meetings were held about the agreement and required Defendant CEO to act in

interests of Northern Light Health.

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41. By failing to timely comply with FOAA, and by its continued refusal to provide Plaintiff with the

documents sought by his April 21st FOAA request, Defendant continues to violate the FOAA

42. Defendant’s refusal to comply with the FOAA and provide access to the documents sought by Plaintiff is

willful and in bad faith, and Plaintiff may therefore recover litigation expenses and reasonable attorneys

fees. 1. MRSA § 409(4)

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against Defendant as follows:

A. Copies of all documents requested by him in his April 21st, 2019 FOAA request to the extent not

previously provided;

B. FOAA compliance training for Defendant’s Attorney, Julius Ciembroniewicz

C. Remedial FOAA compliance training for all parties subject to FOAA at Defendant

D. Injunction waiving fees for all current and ongoing FOAA requests submitted by Plaintiff to Defendant

E. An award of costs of this action; and

F. Such other relief as the Court may deem equitable and just.

Dated: Tuesday, June 4, 2019 Respectfully Submitted

Samuel Katz,

___________________________

Samuel Katz

92 Lincoln St

Dover-Foxcroft, ME 04426

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EXHIBIT 1

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EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

769 A.2d 857 (Me. 2001)

2001 ME 59

TOWN OF BURLINGTON

v.

HOSPITAL ADMINISTRATIVE DISTRICT NO. 1 etal.

No. Pen-00-426.

Supreme Judicial Court of Maine.

April 12, 2001.

Argued Feb. 13, 2001.

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Wayne R. Foote (orally), Foote & Temple, Bangor, forplaintiff.

Michael A. Duddy (orally), Kelly, Remmel & Zimmerman,Portland, Louis H. Kornreich, Gross Minsky & Mogul,P.A., Bangor, for defendants.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN,DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

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CALKINS, J.

[¶ 1] Hospital Administrative District No. 1 (HAD # 1),Ronald Victory, Cedric Russell, and Quorum HealthResources, LLC, (collectively, the hospital parties) appealfrom the judgment of the Superior Court (PenobscotCounty, Hjelm, J.) ordering them to disclose certain recordsto the Town of Burlington. HAD # 1 operates the PenobscotValley Hospital in Lincoln, Maine. Victory is the chiefexecutive officer of HAD # 1, and Russell is president ofthe board of HAD # 1. HAD # 1 contracts with Quorum, aDelaware corporation, to manage the hospital.

[¶ 2] The judgment was issued after trial of twoconsolidated actions. The first was brought by the Town,pursuant to Maine's Freedom of Access Act (FOAA), 1M.R.S.A. § 409 (1989), seeking disclosure of certainrecords from the hospital parties. The second is adeclaratory judgment action by HAD # 1 against RonaldMinott, a selectman of the Town, seeking a declaration as towhether it is required to produce the documents requested

by the Town. The Superior Court concluded that FOAA andsection 10-A (P.L.1993, ch. 707, § S-1) of the enablinglegislation for HAD # 1 require the hospital parties todisclose the requested information. The hospital partiescontend that FOAA is not applicable because HAD # 1 isnot a public agency or political subdivision; the requesteddocuments are not public records; and the trade secretexception of FOAA exempts the disclosure. The hospitalparties further argue that section 10-A of the enablinglegislation is unconstitutional. We agree with the SuperiorCourt that the hospital parties are required to disclose therecords requested by the Town, and we affirm.

I. BACKGROUND

[¶ 3] The Legislature created HAD # 1 in 1967 by a privateand special law, P. & S.L.1967, ch. 58. This enablinglegislation provides that the inhabitants of fourteen towns"are constituted and confirmed a body politic and corporate... in order to provide for the health, welfare and publicbenefit of the inhabitants of the district." P. & S.L.1999, ch.84, § A-1, repealing and replacing P. & S.L.1967, ch. 58, §1. [1] The law further states that "[t]he hospital district shallmaintain and operate a hospital or critical access system ...and generally provide for the health, welfare and publicbenefit of the inhabitants of the district." Id. HAD # 1 ownsand operates Penobscot Valley Hospital, a small hospitaloffering acute care, diagnostic services, and an ambulanceservice. Quorum manages HAD # 1 under a managementservices agreement, and it employs Victory.

[¶ 4] HAD # 1 is governed by a board of directors who areelected by the voters in the towns in the district. Id. § A-2,repealing and replacing P. & S.L.1967, ch. 58, § 2. Whenthere is a vacancy on the board the municipal officers of thetown in which the vacancy occurred appoint a member. Id.The enabling legislation declares that HAD # 1 is aquasi-municipal corporation for purposes of 30-A M.R.S.A.§ 5701 (1996). Id. § A-5, amending P. & S.L.1967, ch. 58,§ 3. Section 5701 provides

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that the property of residents located within the boundariesof a quasi-municipal corporation can be taken to pay anydebt of the corporation. [2] SeeCasco N. Bank v. Bd. of Trs.of Van Buren Hosp. Dist., 601 A.2d 1085, 1086 n. 1, 1088(Me.1992) (stating that judgment creditor of hospital wasentitled to execute on property within Van Buren under30-A M.R.S.A. § 5701 because hospital district's enablingact declared that the district was a "quasi-municipalcorporation"). [3]

[¶ 5] HAD # 1's enabling legislation gives it the authority

to issue bonds. Id. § A-3, amending P. & S.L.1967, ch. 58,§ 3. When the directors of HAD # 1 authorize the issuanceof any bonds, the inhabitants of the towns in the district areto be notified of the vote authorizing the bonds throughpublication in a newspaper with circulation in the district.Id. § A-7, repealing and replacing P. & S.L.1967, ch. 58, §4. Ten percent or more of the voters may request that thebond question be submitted to the voters of the district, inwhich event a special meeting of voters must be held. Id.The enabling legislation also gives HAD # 1 the ability toobtain money through taxation. Id. § A-11, amending P. &S.L.1967, ch. 58, § 9. The directors are given the sameauthority to collect district taxes as county officials have tocollect county taxes. Id. HAD # 1 has issued bonds, but ithas never taxed the communities within its district. HAD #1 obtains its operating revenues from the sale of services,charges to patients, vending machines, and donations.

[¶ 6] HAD # 1 is required to produce an annual writtenreport to the inhabitants of the district "showing thefinancial condition of the district and other matterspertaining to the district and showing the inhabitants of thedistrict how said directors are fulfilling the duties andobligations of the respective trusts." Id. Upon dissolution ofHAD # 1, all of its property is to be liquidated and theproceeds distributed to the towns in the district. P. &S.L.1967, ch. 211, § 11. HAD # 1 is a "politicalsubdivision" for purposes of the Maine Tort Claims Act, 14M.R.S.A § 8102(3) (Supp.2000), which means that it hasthe same immunity from tort claims as municipalities. [4]

[¶ 7] In 1993 the Legislature amended the enablinglegislation of HAD # 1 by adding a new section:

Sec. 10-A. Public records. The administrative records ofthe district, including the financial and compensationrecords of any agent employed by, under contract with orutilized in any other managerial capacity by, the district toadminister that district, are public records within themeaning of the Maine Revised Statutes, Title 1, chapter 13.

P.L.1993, ch. 707, § S-1. The statutory reference in section10-A is to FOAA. HAD # 1 claims that it was not aware ofsection 10-A until approximately five years after itsenactment.

[¶ 8] In the spring of 1999, the Town requested certainfinancial information from HAD # 1. In response to therequest, HAD # 1 provided information regarding

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outstanding bonds but did not provide other information.The requests that remain unsatisfied are for the contractbetween HAD # 1 and Quorum and for the 1998compensation records for Victory and the hospital's chief

financial officer, also a Quorum employee.

[¶ 9] Because the Town would make the records availableto the public once it obtained them, the hospital parties donot want to disclose the records. They claim that thePenobscot Valley Hospital competes for patients andpersonnel from surrounding hospitals. They argue that thecompensation of management employees must be keptconfidential because release of the records would damagetheir ability to compete and effectively manage the hospital.

[¶ 10] The Superior Court found that legislation proposedin 1999 prompted the Town to seek the information fromthe hospital parties. The proposed legislation would haveincreased the bonding authority of HAD # 1, changed themanner of issuing bonds, and amended the administrativeframework. The legislation, however, was not enacted.

[¶ 11] In its thorough decision, the Superior Court ruledthat section 10-A of HAD # 1's enabling legislation madethe documents requested by the Town "public records"within the meaning of FOAA. [5] The Superior Courtrejected the hospital parties' argument that the records are"trade secrets" exempted from disclosure by 1 M.R.S.A. §402(3)(B) (Supp.2000). Furthermore, the court concludedthat section 10-A does not violate the Maine Constitution.[6]

II. APPLICABILITY OF FOAA

[¶ 12] This case involves the construction of two statutoryschemes. Statutory construction is an issue of law;therefore, we review the Superior Court's construction ofthe statutes de novo. Springfield Terminal Ry. Co. v. Dep'tof Transp., 2000 ME 126, ¶ 8, 754 A.2d 353, 356.

[¶ 13] The first statutory scheme at issue is FOAA. FOAAmandates a liberal construction "to promote its underlyingpurposes and policies ...." 1 M.R.S.A. § 401 (1989). Thepurpose of FOAA is to open public proceedings and requirethat public actions and records be available to the public. Id.The burden of proof is on the agency or politicalsubdivision to establish just and proper cause for the denialof a FOAA request. Springfield Terminal, 2000 ME 126, ¶9, 754 A.2d at 356; see also 1 M.R.S.A. § 409(1) (1989).

[¶ 14] FOAA provides that every person has the right toinspect and copy any public record. 1 M.R.S.A. § 408(1989). FOAA defines "public record" as:

[A]ny written [or] printed ... matter ... that is in thepossession or custody of an agency or public official of thisState or any of its political subdivisions, ... and has beenreceived or prepared for use in connection with thetransaction of public or governmental business ....

Id. § 402(3) (Supp.2000). To determine whether the

requested documents are public records we first look towhether HAD # 1 is an agency or political subdivision. [7]

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Because the definitional provisions of FOAA do notexplicitly state that hospital districts come within itscoverage, we turn to the second statutory scheme at issue inthe case, the enabling statute for HAD # 1, to glean whetherit provides that HAD # 1 is an agency or politicalsubdivision.

[¶ 15] We have recited at length the authority given toHAD # 1 in the enabling legislation. On the basis of theburdens and duties granted to HAD # 1 by the MaineLegislature, we conclude that HAD # 1 functions as apolitical subdivision because it has many of the samecharacteristics of a political subdivision. It is a "bodypolitic" and a creature of the Legislature. We found the term"body politic and corporate" to be significant in determiningthat a transit district is a political subdivision for purposesof the Maine Tort Claims Act. Young v. Greater PortlandTransit Dist., 535 A.2d 417, 418 (Me.1987). HAD # 1 ischarged with carrying out a public purpose, that is,providing for the health care of the inhabitants of thedistrict. It has the power to raise revenue through theissuance of bonds and levying taxes. The towns in thedistrict are responsible for the debts of the district. HAD # 1is governed by a board of directors elected by the qualifiedvoters of the towns in the district. Upon dissolution of thedistrict, its assets revert to the towns. The significantpowers and duties granted to HAD # 1 by the Legislatureare characteristics generally reserved for politicalsubdivisions.

[¶ 16] When determining whether an entity is a publicagency or body for purposes of public disclosure laws,other jurisdictions have looked to the function that theentity performs. See, e.g.,Conn. Humane Soc'y v. Freedomof Info. Comm'n, 218 Conn. 757, 591 A.2d 395, 398 (1991)(holding that humane society is not equivalent of publicagency); Mem'l Hosp.-West Volusia, Inc. v. News-JournalCorp., 729 So.2d 373, 380 (Fla.1999) (holding hospitalsystem functioned as public agency); [8] News & ObserverPubl'g Co. v. Wake County Hosp. Sys., Inc., 55 N.C.App. 1,284 S.E.2d 542, 549 (1981) (holding expense and otherrecords of hospital subject to disclosure); [9] ClevelandNewspapers, Inc. v. Bradley County Mem'l Hosp. Bd. ofDirs., 621 S.W.2d 763, 766 (Tenn.Ct.App.1981)

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(holding payroll records of hospital created by privatelegislation subject to disclosure). [10] Factors which courtsgenerally consider include: (1) whether the entity isperforming a governmental function; (2) whether the

funding of the entity is governmental; (3) the extent ofgovernmental involvement or control; and (4) whether theentity was created by private or legislative action. Conn.Humane Soc'y, 591 A.2d at 397. See alsoTelford v.Thurston County Bd. of Comm'rs, 95 Wash.App. 149, 974P.2d 886, 893-95 (1999) and cases cited therein. The courtsdo not require that an entity conform to all factors, but thatthe factors be considered and weighed. [11] Conn. HumaneSoc'y, 591 A.2d at 397; Telford, 974 P.2d at 894.

[¶ 17] What the above-cited cases have in common is aninspection of the functions of the entity under examinationand a determination of whether, on balance, the entityfunctions as a public agency. Our review of the functions ofHAD # 1 convinces us that it functions as a politicalsubdivision. First, it performs what has been viewed as agovernmental function, that of providing health care.Second, although tax-generated funds are not currently usedto finance the operations of HAD # 1, it has issued bondsunder its legislative authority, and it has the power to tax.Furthermore, the towns in the district are ultimatelyresponsible for the debts of HAD # 1, and its assets willrevert to the towns upon dissolution. Third, the control ofHAD # 1 is in the hands of citizens elected from each townin the district. The number of directors and manner ofelection is directed by statute. Finally, it was created by theMaine Legislature. Because HAD # 1 functions as apolitical subdivision, we conclude that it meets thedefinition of "political subdivision" in FOAA.

[¶ 18] Having concluded that HAD # 1 is a politicalsubdivision for the purposes of FOAA, we next determinewhether the records requested from HAD # 1 by the Towncome within the definition of "public records" in section402(3) of FOAA. Records that are "received or prepared foruse in connection with the transaction of public orgovernmental business" are public records. 1 M.R.S.A. §402(3). We conclude that the contract with Quorum is adocument connected with public business; the contractrelates to the management of a hospital which wasconstructed and is maintained for the benefit of the publicwith the use of fund-raising authority

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granted by the Legislature, which authority is exercised byelected citizens. For the same reason, we conclude that thecompensation records of the management employees arerecords prepared for public business.

[¶ 19] Although section 10-A, added to HAD # 1's enablinglegislation, defines HAD # 1's administrative records as"public records" for purposes of FOAA, we do not rely on itbut instead rely upon the general legislation of FOAA. Wechose not to rely on section 10-A for two reasons: (1) HAD# 1's enabling legislation sufficiently details its

governmental functions for us to conclude that it is apolitical subdivision for purposes of FOAA and that therequested records are public records; and (2) the hospitalparties have challenged the constitutionality of section10-A, and we decline to rule on the constitutionality of anenactment when it is not essential to do so. "As a generalrule courts should endeavor to resolve the controversiesbefore them without deciding constitutional issues, reachingsuch an issue only '[if] it is entirely necessary to a decisionon the cause in which it is raised.' " Osier v. Osier, 410A.2d 1027, 1029 (Me.1980) (quoting State v. Good, 308A.2d 576, 579 (1973)). We simply note that section 10-A isnot inconsistent with our interpretation of the enabling actas granting sufficient governmental powers on HAD # 1 toclassify it as a political subdivision for purposes of FOAA.[12]

III. TRADE SECRET EXEMPTION

[¶ 20] The hospital parties argue that the requested recordsare protected trade secrets and exempt under FOAA. Tradesecrets are not expressly exempted by the terms of FOAA,but public records "that would be within the scope of aprivilege against discovery or use as evidence recognizedby the courts of this State in civil or criminal trials" areexempt from disclosure. 1 M.R.S.A. § 402(3)(B).Therefore, because there is a privilege to refuse to disclosetrade secrets, under M.R. Evid. R. 507, HAD # 1 can refuseto disclose them. SeeBangor Publ'g Co. v. Town ofBucksport, 682 A.2d 227, 229 (Me.1996) (holding FOAAdid not require town to disclose information which SuperiorCourt had protected as trade secret).

[¶ 21] The term "trade secret" is not defined in Rule 507.The definition contained within the Uniform Trade SecretsAct is a useful guidepost. The Act defines a trade secret as"information" that "[d]erives independent economic value,actual or potential, from not being generally known to andnot being readily ascertainable by proper means by otherpersons who can obtain economic value from its disclosure...." 10 M.R.S.A. § 1542(4)(A) (1997). Furthermore, theinformation must be the subject of reasonable efforts tomaintain its secrecy. Id. § 1542(4)(B).

[¶ 22] Because the hospital parties have not suggested howthe Quorum contract would meet a definition of a tradesecret, we assume that they have limited their trade secretsargument to the compensation records. At trial the hospitalparties contended that they would have difficulty attractingmanagement employees

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and that the present employees would be recruited by otherhospitals if the compensation information became known.The Superior Court made a factual determination that the

requested documents are not protected trade secrets. Thecourt found that there was no evidence that thecompensation records were the subject of efforts tomaintain their secrecy. It found that the employees who arereceiving the compensation are under no duty to keep theinformation secret. Factual findings are reviewed for clearerror, and there is no clear error in the Superior Court'sfactual determination. SeeRich v. Fuller, 666 A.2d 71, 74(Me.1995). Because the compensation records at issue havenot been the subject of efforts to maintain their secrecy,they are not trade secrets, and the exemption in section402(3)(B) of FOAA is not applicable to the compensationrecords of Victory and the chief financial officer of thehospital.

The entry is:

Judgment affirmed.

ALEXANDER, J., concurring.

[¶ 23] I concur that the Freedom of Access Act should bebroadly construed to allow access to all documents relatingto public contracts that are within a public agency'spossession and control, unless subject to an exemption inthe law. However, I want to emphasize that by contractingwith a public agency, a private contractor does not open allof its private documents, not shared with the public agency,to public access. If the Quorum compensation records areshared with or approved by HAD # 1, they are publicrecords; but if they are private to Quorum and itsemployees, and are not disclosed to HAD # 1, they wouldnot be subject to public disclosure under the Freedom ofAccess Act, absent the stipulation noted in footnote 12 ofthe Court's opinion or the special provisions of section10-A.

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Notes:

[1] As originally enacted, the private and special law stated"[t]he hospital administrative district shall have any poweror powers, privileges or authority exercised or capable ofexercise by a public agency of this State." P. & S.L.1967,ch. 58, § 1. Shortly after enactment, a 1967 amendment tothe law, P. & S.L.1967, ch. 211, repealed the prior law in itsentirety, including the language authorizing HAD # 1 toexercise the powers and privileges of a public agency;modified and added language; and re-enacted the enablingcharter. The enabling legislation has been amended manytimes since then.

[2] Section 5701 states in relevant part: "The personalproperty of the residents and the real estate within theboundaries of a municipality, village or otherquasi-municipal corporation may be taken to pay any debt

due from the body corporate."

[3] The Van Buren Hospital District was established by theLegislature under an enabling act similar to that of HAD #1. P. & S.L.1955, ch. 54.

[4] It is also a political subdivision for purposes ofparticipation in public self-funded insurance pools. 30-AM.R.S.A. § 2252 (Supp.2000).

[5] During trial the parties stipulated that if the courtordered HAD # 1 to disclose the records, Quorum wouldcomply with regard to the documents in its possession.

[6] The hospital parties did not argue that section 10-Aviolates the federal constitution.

[7] In addition to the definition of "public record," thedefinitional section of FOAA lists various boards, agenciesand other entities whose proceedings must be open to thepublic. 1 M.R.S.A. § 402(2) (Supp.2000). Although the listof these entities is not directly applicable to this casebecause this case concerns records, not proceedings, the listis illustrative of the breadth of organizations covered byFOAA. Subsection 402(2)(C) includes "[a]ny board,commission, agency or authority of any county,municipality, school district or any regional or otherpolitical or administrative subdivision." SeeLewiston DailySun, Inc. v. City of Auburn, 544 A.2d 335, 336-38(Me.1988) (holding that a municipal committee comeswithin FOAA even though "committee" is not included inlist in § 402(2)).

[8] In Memorial Hospital-West Volusia, Inc., the FloridaSupreme Court relied upon the following facts inconcluding that the hospital system functioned as a publicentity: (1) the hospital's facilities were transferred to it bythe West Volusia Hospital Authority which was created bythe Florida Legislature; (2) the Authority had the power toconstruct a hospital; (3) it had the ability to issue bonds andlevy taxes; (4) the Authority and a private hospitalcorporation established the entity at issue and the Authorityleased the hospital facilities to the entity. Mem'l Hosp.-WestVolusia, Inc. v. News-Journal Corp., 729 So.2d 373, 377-79(Fla.1999).

[9] In News & Observer Publishing, county commissionerscreated the Wake County Hospital Authority to establish ahospital. Later, the commissioners converted the Authorityto the non-profit Wake County Hospital System and leasedthe hospital facilities to the System. In finding the Systemto be a public agency or subdivision, the North CarolinaCourt of Appeals relied upon the following: (1) upondissolution, the System's assets would be transferred to thecounty; (2) the commissioners retained the right to approvethe System's budget; (3) the county could audit the System;

(4) the System could issue bonds; and (5) the lease of thefacilities to the System was $1.00 per year. News &Observer Publ'g Co. v. Wake County Hosp. Sys., Inc., 55N.C.App. 1, 284 S.E.2d 542, 544-45 (1981).

[10] In Cleveland Newspapers, the hospital was created bystate legislation which authorized the issuance of bonds;bonds had been issued, although the hospital was nowself-supporting; the board of directors served without payand a majority were named by city and countycommissioners; annual audits and reports were submitted tothe county court; and the hospital claimed governmentalimmunity in tort actions. Cleveland Newspapers, Inc. v.Bradley County Mem'l Hosp. Bd. of Dirs., 621 S.W.2d 763,764 (Tenn.Ct.App.1981). But seeMemphis Publ'g Co. v.Shelby County Health Care Corp., 799 S.W.2d 225, 228-30(Tenn.Ct.App.1990) (holding hospital and health carecorporation were not subject to disclosure law;distinguishing Bradley County Memorial Hospital ongrounds that Bradley Hospital was a creature of statelegislation and immune in tort actions).

[11] Some courts use additional factors such as the level ofpublic funding, seeMem'l Hosp.-West, 729 So.2d at 376 n.5, and status of the entity's employees, seeMarks v.McKenzie High Sch. Fact-Finding Team, 319 Or. 451, 878P.2d 417, 423 (1994).

[12] The Superior Court concluded that section 10-Areached Quorum and its employees even if they otherwisewould not be considered a public agency or public officials.Early in this litigation Quorum contended that it was notrequired to disclose any documents in its possessionbecause it is not a public agency and its employees are notpublic officials. We do not decide whether Quorum isrequired to disclose records because it stipulated at trial thatit would provide access to any records in its possession thatthe court ordered HAD # 1 to disclose.

---------

Citing References :

790 A.2d 597 (Me. 2002), Pen-01-343, Widewaters Stillwater Co., LLC v. Bangor Area

Citizens Organized for Responsible Development

____________________________________________________________

Supreme Judicial Court of Maine02/15/2002 790 A.2d 597 2002 ME 27

832 A.2d 765 (Me. 2003), Han-03-64, Hannum v. Board of Environmental Protection

____________________________________________________________


866 A.2d 117 (Me. 2005), Cum-04-371, Medical Mut. Ins. Co. of Maine v. Bureau of Ins.

____________________________________________________________


871 A.2d 523 (Me. 2005), Ken-03-697, Blethen Maine Newspapers, Inc. v. State

____________________________________________________________


884 A.2d 667 (Me. 2005), ARO-05-174, Dow v. Caribou Chamber of Commerce and Industry

____________________________________________________________


896 A.2d 950 (Me. 2006), Was-06-62, Winifred B. French Corp. v. Pleasant Point

Passamaquoddy Reservation

____________________________________________________________


905 A.2d 829 (Me. 2006), Cum-05-644, Portland Water Dist. v. Town of Standish

____________________________________________________________


916 A.2d 967 (Me. 2007), Aro-06-278, Cyr v. Madawaska School Dept.

____________________________________________________________


952 A.2d 980 (Me. 2008), Cum-07-467, Moore v. Abbott

____________________________________________________________


103 A.3d 1023 (Me. 2014), Ken-14-52, Turcotte v. Humane Soc'y Waterville Area

____________________________________________________________


130 A.3d 978 (Me. 2016), BCD-15-94, Hughes Bros., Inc. v. Town of Eddington

____________________________________________________________


15 A.3d 1279 (Me. 2011), Cum-10-363, Anastos v. Town of Brunswick

____________________________________________________________


854 N.E.2d 193 (Ohio 2006), 2005-1505, State ex rel. Oriana House, Inc. v. Montgomery

____________________________________________________________

Supreme Court of Ohio10/04/2006 854 N.E.2d 193 110 Ohio St.3d 456 2006-Ohio-4854

387 P.3d 690 (Wash. 2017), 92846-1, Fortgang v. Woodland Park Zoo

____________________________________________________________

Supreme Court of Washington, En Banc01/12/2017 387 P.3d 690 187 Wn.2d 509

No negative treatment in subsequent cases

-11-

EXHIBIT 5

5/8/2019 FOA Exceptions Search | Maine Legislature

www.mainelegislature.org/legis/foa/ 1/1

FREEDOM OF ACCESS STATUTORY EXCEPTIONS SEARCH - MAY 8, 2019

Title

26

Section

e.g. 416-A or 4572

Subsection

e.g '1, 2' or 5-A

Description

exact word or phraseCategory

Choose optional categorySearch

10 exceptions found for the current search.

26 MRS §1082(http://legislature.maine.gov/statutes/26/title26sec1082.html),§§ 7

Title 26, section 1082, subsection 7, relating to employers' unemployment compensation recordsconcerning individual information

Labor

26 MRS §3(http://legislature.maine.gov/statutes/26/title26sec3.html)

Title 26, section 3, relating to information, reports and records of the Director of Labor Standardswithin the Department of Labor

Labor


Title 26, section 43, relating to the names of persons, firms and corporations providinginformation to the Department of Labor, Bureau of Labor Standards

Labor


Title 26, section 665, subsection 1, relating to records submitted to the Director of LaborStandards within the Department of Labor by an employer concerning wages

Labor


Title 26, section 685, subsection 3, relating to substance abuse testing by an employer Labor


Title 26, section 685, subsection 3, relating to substance abuse testing by an employer Health - patients,clients, individuals


Title 26, section 934, relating to a report of the State Board of Arbitration and Conciliation in labordispute

Other purposes


Title 26, section 934, relating to a report of the State Board of Arbitration and Conciliation in labordispute

Labor


Title 26, section 939, relating to information disclosed by a party to the State Board of Arbitrationand Conciliation

Labor


Title 26, section 939, relating to information disclosed by a party to the State Board of Arbitrationand Conciliation

Other purposes

http://legislature.maine.gov/statutes/26/title26sec1082.html










-12-

EXHIBIT 6



FREEDOM OF ACCESS STATUTORY EXCEPTIONS SEARCH - MAY 8, 2019

Title

1

Section

e.g. 416-A or 4572

Subsection

e.g '1, 2' or 5-A

Description

exact word or phraseCategory

AllSearch

39 exceptions found for the current search.


Title 1, section 1013, subsection 2, relating to the identity of a requestor of Commission on GovernmentalEthics and Election Practices opinions

Investigations - allother

1 MRS §1013(http://legislature.maine.gov/statutes/1/title1sec1013.html),§§ 3-A

Title 1, section 1013, subsection 3-A, relating to complaint alleging a violation of legislative ethics Investigations - allother


Title 1, section 1013, subsection 4, relating to Commission on Governmental Ethics and ElectionPractices records other than complaints



Title 1, section 402, subsection 3, paragraph H, relating to medical records and reports of municipalambulance and rescue units and other emergency medical service units

Judicial proceedings


Title 1, section 402, subsection 3, paragraph M, relating to architecture, design, access authentication,encryption and security of information technology infrastructure and systems

Other purposes

1 MRS §402(http://legislature.maine.gov/statutes/1/title1sec402.html),

Title 1, section 402, subsection 3, paragraph A, relating records designated confidential by statute Other purposes









§§ 3


Title 1, section 402, subsection 3, paragraph B, relating to records within scope of privilege againstdiscovery or use as evidence

Judicial proceedings


Title 1, section 402, subsection 3, paragraph C-1, relating to certain categories of communicationbetween a constituent and an elected official

Health - patients,clients, individuals


Title 1, section 402, subsection 3, paragraph D, relating to collective bargaining materials developed orheld by a public employer

Labor


Title 1, section 402, subsection 3, paragraph E, relating to records of committees of Maine MaritimeAcademy, Maine Community College System and University of Maine System

Education


Title 1, section 402, subsection 3, paragraph E, relating to records of committees of Maine MaritimeAcademy, Maine Community College System and University of Maine System

Other purposes


Title 1, section 402, subsection 3, paragraph F, relating to records of association of political subdivisions Other purposes


Title 1, section 402, subsection 3, paragraph G, relating to records of an association of politicalsubdivisions concerning legislation or insurance

Other purposes


Title 1, section 402, subsection 3, paragraph P, relating to geographic information regarding recreationaltrails on private land

Other purposes



Medical facilities


Title 1, section 402, subsection 3, paragraph I, relating to juvenile records and reports of municipal firedepartments regarding juvenile fire setters

Juvenile justice orcriminal investigation













§§ 3 and history


Title 1, section 402, subsection 3, paragraph J, relating to working papers of advisory group establishedby Legislature or Governor

Other purposes


Title 1, section 402, subsection 3, paragraph S, relating to e-mail addresses obtained by politicalsubdivision for the sole purpose of disseminating noninteractive communications

Other purposes


Title 1, section 402, subsection 3, paragraph L, relating to records describing security plans, securityprocedures or risk assessments prepared to prevent or prepare for acts of terrorism

Other purposes


Title 1, section 402, subsection 3, paragraph O, relating to personal contact information concerningpublic employees other than elected officials

Public employment


Title 1, section 402, subsection 3, paragraph N, relating to Social Security numbers Social securitynumbers






Juvenile justice orcriminal investigationand history


Title 1, section 402, subsection 3, paragraph T, relating to fisheries, aquaculture and seafood processingand depuration plant research

Marine resources andaquaculture - marineresources


Title 1, section 402, subsection 3, paragraph T, relating to fisheries, aquaculture and seafood processingand depuration plant research

Marine resources andaquaculture -aquaculture


Title 1, section 402, subsection 3, paragraph K, relating to personally identifying information concerningminors for municipal nonmandatory education or recreation purposes

Public services













§§ 3



Health - facilities,manufacturers orother entities


Title 1, section 402, subsection 3, paragraph R, relating to Social Security numbers in possession of theSecretary of State

Social securitynumbers


Title 1, section 402, subsection 3, paragraph Q, relating to security plans, staffing plans, securityprocedures, architectural drawings or risk assessments prepared for emergency events for Departmentof Corrections or county jail

Social services


Title 1, section 402, subsection 3, paragraph R, relating to Social Security numbers in possession of theSecretary of State

Motor vehicles andoperators


Title 1, section 402, subsection 3, paragraph C, relating legislative working papers Other purposes



Other purposes



Social securitynumbers


Title 1, section 402, subsection 3, paragraph K, relating to personally identifying information concerningminors for municipal nonmandatory education or recreation purposes

Education


Title 1, section 402, subsection 3, paragraph S, relating to e-mail addresses obtained by politicalsubdivision for the sole purpose of disseminating noninteractive communications

Public services


Title 1, section 402, subsection 3, paragraph U, relating to hazardous materials railroad cargo Utilities













§§ 3


Title 1, section 402, subsection 3, paragraph U, relating to hazardous materials railroad cargo Other purposes

1 MRS §402(http://legislature.maine.gov/statutes/1/title1sec402.html),§§ 3-A

Title 1, section 402, subsection 3-A, relating to criminal justice agency records of the identity, convictiondata or current address or location of prisoner, adult probationer or parolee

Juvenile justice orcriminal investigationand history


Title 1, section 538, subsection 3, relating to InforME subscriber information Public services




civil action no. complaint introduction · 6. on september 23, 2004, the gao (government...

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