Moore v. Abbott

2008 ME 100, 952 A.2d 980, 2008 Me. LEXIS 101, 2008 WL 2421489

• Court: Supreme Judicial Court of Maine
• Decided: June 17, 2008
• Docket: Docket: Cum-07-467
• Status: Published

Opinions

ALEXANDER, J.

[¶ 1] James P. Moore appeals from a judgment of the Superior Court (Cumberland County, Crowley, J.) that denied his appeal from the failure of individual members of an advisory group created by the Attorney General to provide Moore certain documents in response to his Freedom of Access Act request. Moore’s action was brought pursuant to 1 M.R.S. § 409(1) (2007) and M.R. Civ. P. 80(C). Moore contends that the individual members of an advisory group created by the Attorney General constituted an “agency or public official” of the State, 1 M.R.S. § 402(3) (2007), whose records are subject to inspection and disclosure pursuant to 1 M.R.S. § 408(1), (2) (2007). We affirm the judgment.

I. CASE HISTORY

[¶2] In 1989, Dennis J. Dechaine was convicted of the kidnapping, sexual assault, and murder of a twelve-year-old girl. We affirmed the conviction. State v. Dechaine, 572 A.2d 130 (Me.1990). Following our opinion, Dechaine filed a motion for a new trial. After hearing, the trial court denied the motion. We affirmed. State v. Dechaine, 630 A.2d 234 (Me.1993). Our 1990 and 1993 opinions discussed, in extensive detail, the procedural history of the case and the substantial evidence supporting the convictions. Because the procedural history and evidentiary record of the case is discussed in our prior opinions, it is not repeated here.

[¶ 3] For some time, a group of De-chaine’s friends and supporters have been actively involved in accusing the Attorney General’s office and law enforcement agencies who investigated the crimes of various improprieties in the investigation and prosecution of the crimes. In 2004, the Attorney General expressed concern that, although he believed the accusations to be untrue, the persistence of the accusations could affect public confidence in State law enforcement agencies. The Attorney General attempted to address these concerns by requesting three experienced attorneys to independently review the investigation and prosecution of the crimes and the alleged improprieties and provide a report to him of the results of their investigation. To accomplish this objective, the Attorney General asked Eugene Beaulieu, a former state judge and federal magistrate judge, and two other experienced attorneys, Charles Abbott and Marvin Glazier, to conduct an independent review of the validity of the allegations of improprieties. The Attorney General wrote a letter to each of the three requesting that they “conduct an independent and impartial review of these allegations and provide to me a report of your findings, which will be made public.” To support this review, the Attorney General pledged the cooperation of his office, including making available the personnel who were involved in the prosecution and investigation of the crimes and public documents related to the prosecution.

[¶4] The three attorneys received no compensation for their work, and their administrative activities were supported principally by the office of one of the attorney members of the committee. The interviews the three conducted were held at the Attorney General’s office, and, on one occasion, the Attorney General arranged for a retired law enforcement officer to be transported to a meeting with the advisory committee. Based on the record before it, the Superior Court found that “other than describing the scope of the review and providing the cooperation of his office, the Attorney General had no involvement with how [the defendants] conducted their review.”

[¶ 5] In 2006, the three attorneys issued their report, concluding that there was no merit to the allegations of prosecu-torial or law enforcement misconduct relating to investigation or prosecution of the case.

[¶ 6] After the report was issued, Moore sent letters to the three attorneys presenting a Freedom of Access Act request to review the files, records, and reports compiled during their independent review. When the first letter received no response, Moore sent a second letter making a similar request. After receiving no response to the second letter, Moore filed a Freedom of Access Act action in the Superior Court, seeking an order that the three individuals provide any materials relating to the independent review that were within their possession or control. The Superior Court action and this appeal have been directed to the three individual attorneys who conducted the independent review. At no time has the Attorney General or a representative of any law enforcement agency appeared, or otherwise participated, in the Superior Court action or this appeal.

[¶ 7] The three attorneys responded to Moore’s action in Superior Court, asserting that they did not constitute a State agency or public official subject to the requirements of the Freedom of Access Act. After a hearing, the Superior Court agreed, concluding that the three individual attorneys “are not a public agency or political subdivision and need not turn over documents related to their independent investigation into the prosecution of Dennis Dechaine to petitioner pursuant to his FOAA request.” From that decision, Moore brought this appeal.

II. LEGAL ANALYSIS

[¶8] Maine’s Freedom of Access Act gives every person “the right to inspect and copy any public record during the regular business hours of the agency or official having custody of the public record.” 1 M.R.S. § 408(1). “Public records” is broadly defined as

any written, printed or graphic matter ... that 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. § 402(3).

[¶ 9] This appeal presents the question of whether, when State officials, acting without a legislative mandate, seek nonbinding and uncompensated advice about official business from a designated group of private citizens, the records gathered or created by those citizens, individually or collectively, become public records because those citizens are the functional equivalent of a State agency or public official, for purposes of application of the Freedom of Access Act. See, Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶ 16, 769 A.2d 857, 862-63.

[¶ 10] In evaluating whether an entity or individual, individually or collectively, qualifies as “an agency or public official” for purposes of the Freedom of Access Act, we look to “the function that the entity performs.” Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670 (quoting Town of Burlington, 2001 ME 59, ¶ 16, 769 A.2d at 862-63).

[¶ 11] We have established a four-part test, applying this functional analysis, to determine if a particular entity or citizen, individually or collectively, as a result of activities relating to government, becomes “an agency or public official” for purposes of the law. The four factors are:

(1) Whether the entity is performing a governmental function;

(2) Whether the funding of the entity is governmental;

(3) The extent of governmental involvement or control; and

(4) Whether the entity was created by private or legislative action.

Id.; Town of Burlington, 2001 ME 59, ¶ 16, 769 A.2d at 862-63. We have indicated that although these factors should be considered and weighed, an entity need not strictly conform to each factor to become a public agency or public official. Dow, 2005 ME 113, ¶ 12, 884 A.2d at 670.

[¶ 12] There is no serious factual dispute about the history of the creation, actions, and nonbinding report of the informal advisory group in this case. It had no legislative authorization. It received no State funds. Its members acted solely as private citizens. Its activities were supported principally by the office of one of the attorney members of the group. The Attorney General assisted the group only by making available documents for review and witnesses to interview. The report was not binding on the Attorney General. The Attorney General played no role in drafting the report, and the Attorney General is not participating in this appeal.

[¶ 13] In essence, the three individuals conducting the independent investigation were like many other individuals and groups who provide solicited advice to State officials that is nonbinding and without legislative authorization or State payment for the value of services or expenses. While the individuals here provided collective advice regarding the Attorney General’s action in prosecution of a crime, their functions were really no different than other groups and individuals who provide advice on a wide range of topics from ways to cut costs and improve efficiency, to ways to improve the economy, to recommendations for appointment of qualified individuals to public positions. After reviewing the facts in light of the four factors derived from our precedents, the Superior Court found that “all four Dow factors weigh against classifying [the defendants] as a public agency or political subdivision....”

[¶ 14] Our review of those factors confirms the accuracy of the Superior Court’s decision.

A.Performing a Governmental Function

[¶ 15] The three attorneys in this case were asked by the Attorney General to conduct an independent investigation and to report the results of their investigation to the Attorney General, with the results to be made public. The advice to be provided through the investigation report was nonbinding, and no recommendations were requested on any issue. The group had no authority to charge, prosecute, or sanction any misconduct it might have found. The Attorney General could treat the report as he wished. In this action, the three private citizens were not performing a governmental function. A person or entity, acting without statutory authority or state support, who provides nonbinding advice to a state agency or state official, even on a matter that may be of some significance, does not, by providing that nonbinding advice, become an agent of government performing a governmental function for purposes of application of the Freedom of Access Act.

[¶ 16] State government practice has not treated such informal advisory groups, either individually or collectively, as “an agency or public official” subject to the Freedom of Access Act. Title 1 M.R.S. § 402(2)(F) (2007) lists the categories of advisory groups or organizations whose activities are “public proceedings” subject to the law. The covered entities identified in section 402(2)(F) are “[a]ny advisory organization ... established, authorized or organized by law or resolve or by Executive Order issued by the Governor....” The Attorney General’s informal advisory group was not created by law, by legislative resolve, or by Executive Order of the Governor. It is not in the categories listed in the law, and it was not performing a governmental function to subject it to the law.

B. Government Funding

[¶ 17] The three attorneys received no pay and no government financial support in conducting their independent investigation. They only received incidental logistical support from the Attorney General’s office in arranging interviews of those persons they wished to interview. In effect, the investigation and its administrative costs were self-funded by the three defendants.

C. Government Involvement or Control

[¶ 18] The request to the three attorneys, by the Attorney General, was to conduct an independent investigation free of government involvement or control. In support of the investigation, the Attorney General did provide the three attorneys copies of the criminal and investigative records that were already part of the public record and helped to arrange interviews with people who the defendants, collectively, decided to interview. However, beyond such incidental logistical support, the Attorney General, by design, had no involvement with or control of the investigation. There is no indication that the Attorney General made or attempted to make any effort to limit the extent or scope of the investigation, its timing, its evidence development process, the choices of persons to be interviewed, or any other aspect of the defendants’ activities leading to preparation of their report. Accordingly, the governmental involvement or control factor we addressed in Dow weighs against determining that the defendants acted as a public agency or public official.

D. Created by Private or Legislative Action

[¶ 19] In this case, there was no legislative mandate or any other statute, Executive Order, or other official authorization for the three attorneys to conduct the independent investigation. This lack of official legislative or executive authorization distinguishes this case from Lewiston Daily Sun, Inc. v. City of Auburn, 544 A.2d 335 (Me.1988). There, over two dissents, we held that the open meetings’ provisions of the Freedom of Access Act applied to a committee created at the express direction of the city council to investigate and make recommendations regarding wrongdoing in city government. Id. at 336-38. No such legislative mandate or direction to investigate and make recommendations exists here. There was no Executive Order of the Governor or other official action creating this advisory group.

[¶ 20] In this case, all that existed was a letter from the Attorney General requesting that the three attorneys conduct an independent investigation and provide to him a nonbinding advisory report. Essentially, the defendants were requested, not mandated, to perform the investigation, and they were asked to do it as independent private citizens, separate from the government and without being requested or expected to make any recommendations. The advisory group was not created by legislative action or even by Executive Order to bring it within the criteria we outlined in Dow.

[¶ 21] Having reviewed the facts of this case against criteria we have previously established, we agree with the Superior Court’s finding that all four of the criteria for distinguishing whether an activity is undertaken by a public agency or private citizens support the determination that, in this case, the defendants acted as private citizens in conducting an independent investigation and giving nonbinding advice to the Attorney General. Therefore, the document disclosure mandates of the Freedom of Access Act do not apply to any documents generated in the course of their independent investigation that may be in the defendants’ possession.

The entry is:

Judgment affirmed.