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In Maine, You Can’t Even Leave Dismissed Criminal Cases Behind You.

In Maine, You Can’t Even Leave Dismissed Criminal Cases Behind You.

Posted by Edmund R. Folsom, Esq.

November 20, 2020

In the past two days, the Portland Press Herald ran a news story and an editorial complaining that the Maine Judicial Branch is not making information about dismissed criminal charges public.  These news bits illustrate why it is so difficult to leave any contact with Maine’s criminal justice system behind.

Maine has no process to expunge or seal adult conviction records, or even records of an arrest where no charges are ever pursued by a prosecutor.  The only way to shield a criminal conviction from public view is to secure a governor’s pardon.  But what about dismissed charges?  What happens to information about those?  The answer is complicated.

Maine has something called the Criminal History Record Information Act (Act).  These statutes govern the dissemination of “criminal history record information,” which is essentially all information about a person’s contact with criminal justice agencies, from the time a person is summonsed or arrested until the case is finished.  It includes all information gathered or kept by a “criminal justice agency.” Courts are specifically included in the definition of “criminal justice agency,” but records of public judicial proceedings retained by a court are not governed by the Criminal History Records Information Act.  Instead, access to all such records is governed by rule or administrative order of the Maine Supreme Judicial Court.  Because of this, certain criminal history record information is available to the public from a court, while the same information is categorized as “confidential” and is therefore not available to the public through any other criminal justice agency.  Here’s how that happens.

Under the Criminal History Record Information Act, all criminal history record information is categorized as either “confidential” or “public.”  All information that the Act does not specifically define as “confidential” is “public.”  Here, we are dealing with dismissals.  The Act defines as “confidential” all information regarding a dismissal by a court with prejudice and any dismissal with finality by a prosecutor unless the dismissal is part of a plea agreement.  If you get a charge dismissed for plea to another charge, that dismissal is part of a plea agreement.  That makes information about the dismissal public.  On the other hand, if your charge is dismissed outright – not part of a plea agreement – information about it is confidential.  And when criminal history record information is confidential, the Act allows it to be disseminated only to a narrow group of entities, in narrow circumstances, not to the general public.

The State Bureau of Identification (SBI) is the central repository of criminal history record information in Maine.  Anyone wanting access to a person’s criminal record usually queries the SBI.  If a police agency does the querying, they’ll get both confidential and public information on the person because police are part of the narrowly defined group of entities with access to confidential information.  But if a member of the general public queries the SBI, that person will get only the public information.  When it comes to dismissals, the inquirer will be informed about dismissals that were part of a plea agreement but will not be informed about dismissals that were not part of a plea agreement.  If a non-law enforcement prospective employer queries SBI about you, and if you have no convictions and 2 dismissals that were not part of plea agreements, the prospective employer will be informed that you have no record.   But if the employer happens to check the courthouse where your cases were dismissed, the Criminal History Record Information Act does not apply to the records kept there.  The curious employer can go there and see what you were charged with that was later dismissed, unless some rule or order of the Supreme Judicial Court blocks access.  This is where the news media enter the story.

The courts have been treating dismissed cases essentially the same way the SBI treats them under the Criminal History Records Information Act.  Again, the Act defines dismissed cases that are not part of a plea agreement as confidential.  But the Act contains a provision that says a criminal justice agency may provide the general public information about the fact of a specific disposition that is confidential within 30 days of the disposition occurring.   The courts have been allowing the public to access information about a dismissal for 30 days after the dismissal is entered, but have been refusing to provide the information after that. According to the Portland Press Herald, the press complained about the courts carrying on this practice several years ago and the courts promised to stop it and make dismissal information public forever. The courts now tell the Press Herald that they have continued the practice by mistake, due to a programming glitch.

Here’s what’s going to happen now with dismissals that are confidential under the Criminal History Records Information Act – nobody will be able to access the information through the SBI, but anyone will be able to access the information through the courts.  The written court policy is, “Individual adult public criminal history information contained in public court records maintained by and at a clerk’s office are open to public inspection and copying, and will be supplied if the records or indices are not located in a publicly accessible place.”  All adult criminal proceedings are public proceedings, and since the Criminal History Records Information Act does not apply to make any records of adult criminal proceedings confidential, it’s all public.  Once Maine court records go online, there will be little sense in using the SBI anymore.  Some of the stuff the people at SBI know, they won’t tell you, but it will be largely irrelevant that certain categories of case information are confidential under the Criminal History Records Information Act when that same information is readily available online from the courts.

In Maine, it’s really hard to leave contact with the criminal justice system completely behind you.  With the advent of online court records, it’s going to be harder than ever.  Your social credit score might never be completely rehabilitated from even a minor brush with the law in Maine.  We’re all in a giant peep show now, and everything is forever in the world of www.