AUBURN — A Lewiston lawyer is suing Androscoggin County for failing to turn over jail records of recorded phone calls made by an inmate.
Criminal defense attorney Jesse James Ian Archer filed a Freedom of Access Act request for phone records for November and December from an inmate who was not his client.
Archer was seeking the records on behalf of a client Archer represents as a court-appointed attorney.
His request was rebuffed by an attorney for Androscoggin County, who also represents Androscoggin County Jail.
The phone area at the Androscoggin County Jail has signs displayed that every phone call is monitored and recorded. Andree Kehn/Sun Journal
According to court documents, Archer’s records request was answered by Peter Marchesi who wrote that release of those records “may constitute an unreasonable invasion of the personal privacy of individuals involved.”
In his complaint, filed in Androscoggin County Superior Court, Archer’s attorney, Verne Paradie, wrote that Archer was appealing to that court the rejection of his records request.
Paradie explained in his complaint that Marchesi’s response either means the jail has been invading the privacy of inmates or is refusing to turn over public records in violation of state statutes.
“Interestingly, the jail records all non-attorney/client inmate calls and indicates that the calls are not private,” Paradie wrote in the complaint.
“Further, upon simple verbal request, the jail provides any calls that are requested by state prosecutors,” he said.
He continued: “The county’s position to plaintiff’s request either means that the county has been violating all inmates’ rights of privacy by providing the calls to prosecutors or the information is subject to disclosure as requested by plaintiff.”
Paradie wrote that the records Archer was seeking “are public records” and that Archer is entitled to an order from the court directing the county to turn over those records to him.
If the court were to determine that records of inmate calls are not public, then “the county needs to be enjoined from recording and disseminating any further inmate calls to prosecutors and the county is liable to hundreds of inmates for violating their privacy,” Paradie wrote.
In the complaint, Archer is seeking that a judge enter an order directing the county to disclose the inmate phone records and award Archer costs and attorney’s fees.
Marchesi answered the complaint for the county, writing that Archer would need to subpoena the inmate phone records he’s seeking, not simply a public records request.
“Providing recordings of an inmate’s telephone calls to an attorney who does not represent the inmate would violate the Maine Interception of Wire and Oral Communications Act,” Marchesi wrote.
“Second, and beyond the legal prohibition, furnishing the requested recordings would result in an unreasonable invasion of privacy,” Marchesi wrote.
“Finally, this is not a proper request under (Freedom of Access Act) because the recordings sought are not ‘public records,'” he wrote.
Marchesi wrote that state law “permits jail investigative officers to intercept and disclose inmate phone calls under limited circumstances.”
He cited that statute: “It is not a violation of this chapter for a jail investigative officer, as defined in this chapter, or for a jail employee acting at the direction of a jail investigative officer, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity that is related to the administration of criminal justice.”
Marchesi also wrote that state law allows for the contents of “an interception of any oral communication or wire communication that has been legal obtained … to be disclosed to a state agency if related to the statutory functions of that agency.”
For that reason, Marchesi wrote, the law allows the jail to give those records to state prosecutors.
“On the other hand, disclosure of an inmate’s phone calls to a private attorney is not a permissible use of intercepted communications, because it does not relate to the administration of criminal justice,” Marchesi wrote.
He said the party requesting the phone records must “demonstrate at least some modicum of public interest in the contents of the requested materials which outweighs the privacy interests at issue.”
Marchesi wrote that “there is no identifiable public interest in disclosure of the recordings in this case.”
Androscoggin County Jail Administrator Maj. Jeffrey Chute said the county contracts with Securus Technologies, a prison communications company, for its phone system that is used by inmates.
All phone calls made by inmates include a voice message at the start of the call that lets them know their calls are being recorded, Chute said.
Andrscoggin County Sheriff’s Office detectives and a “small group” of jail employees can listen to the recordings of calls from their computers that have the software necessary to access the stored recordings, Chute said. They must secure approval from a supervisor by showing a need for a particular recording, he said.
The detectives or authorized deputies listen to calls to investigate crimes such as bail violations or prohibited contact with alleged victims, he said.
A prosecutor or defense attorney may request a recording directly from a detective by way of discovery for a criminal case or by seeking a recording through the courts, he said.
Chute said defense attorneys can block their calls with clients from being recorded by registering their phone numbers with Securus or the jail ahead of time.
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