Moore v. Abbott

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND... s.s~ ;. c~ i.... ~_•• ~_ k _ ' ' 1 , CIVIL ACTION DOCKE!..NO. AlJ.-0?~3y8 "'1 \ \ D \.1,: 02 g[C - C iJ'Jf\ ­ 7 I . .,j I

JAMESFJMOOi&, ,

Petitioner v.

CHARLES ABBOTT, ESQ., HON. EUGENE BEAULIEU and MARVIN GLAZIER, ESQ.

Respondents

Before the Court is Petitioner James P. Moore's ("Petitioner") appeal

pursuant to M.R. Civ. P. 80C and 1 M.R.S.A. § 409(1) of Respondents Honorable

Eugene Beaulieu, Marvin Glazier and Charles Abbott's ("Respondents") failure

to comply with Petitioner's Freedom of Access Act ("FOAA") request.

BACKGROUND In 1989, the Office of the Attorney General prosecuted Dennis Dechaine

for the murder of Sarah Cherry. This prosecution led to a March, 1989 jury

verdict finding Mr. Dechaine guilty of murder, kidnapping and gross sexual

misconduct.

Following allegations of prosecutorial and law enforcement misconduct in

relation to Mr. Dechaine's case, by letter dated October 23, 2004 Attorney General

G. Steven Rowe formally requested that Respondents "conduct an independent

and impartial review of these allegations and provide to me a report of your

findings, which will be made public." In connection with this review, Attorney

General Rowe pledged the cooperation of his Office, including making available

public documents related to Mr. Dechaine's prosecution as well as personnel

who were involved in the prosecution. 1 The Legislature had no involvement in the authorization of Respondents'

independent review, Respondents received no compensation for their time and

expenses in conducting the review and, other than describing the scope of the

review and providing the cooperation of his Office, the Attorney General had no

involvement with how Respondents conducted their review.

At the conclusion of their independent review, Respondents issued a

report on August 18, 2006. In that report, Respondents concluded that there was

no merit to allegations of prosecutorial or law enforcement misconduct related to

Mr. Dechaine's case.

In an August 30, 2006 letter to Respondents, Petitioner made an FOAA

request for access to files, records and reports compiled during Respondents'

independent review. Petitioner repeated this request by letter dated September

13, 2006. Respondents did not answer or acknowledge either request. Petitioner

timely filed this appeal.

DISCUSSION

Under the FOAA, "every person has the right to inspect and copy any

public record." 1 M.R.S.A. § 408(1). Public records are defined in relevant part as

"[a]ny written [or] printed ... matter ... that is in the possession or custody of an

agency ... of this State or any of its political subdivisions. ,. and has been

received or prepared for use in connection with the transaction of public or

governmental business ...." 1 M.R.S.A. § 402(3). Thus, whether the documents

requested by Petitioner are public records properly subject to an FOAA request

turns on whether Respondents' independent commission is classified as an

agency or political subdivision. See Town of Burlington v. Hosp. Admin. Dist. No.7,

2001 ME 59,

qualifies as a public agency or political subdivision: m(l) 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.'11 Dow v. Caribou

Chamber of Commerce and Indus., 2005 ME 113,

Town of Burlington, 2001 ME 59,

need not strictly conform to all four factors to be characterized as a public agency

or political subdivision. Id.

Evaluating each Dow factor in turn, it is evident that Respondents do not

qualify as a public agency or political subdivision within the meaning of the

FOAA. Regarding the first factor in the analysis, in conducting an independent

review of whether the government itself had committed misconduct in the

prosecution of Mr. Dechaine, Respondents performed no governmental function.

Such an outside investigation into alleged government misconduct IS as

characteristic of action of a public interest group as the government.

It is also clear that Respondents' funding provides no support for

classifying them as a public agency. Indeed, Respondents received absolutely no

funding from the State or any other source and were not even compensated for

out of pocket costs involved in conducting their investigation. Contrary to

Petitioner's assertion, the fact that the Attorney General's Office receives public

funding is of no import as that is not the entity at issue in this case.

As to the governmental involvement and control factor, there was little to

none. The only level of control the Attorney General exercised over Respondents'

investigation was in choosing the three Respondents in the first instance and in 3 describing the matter he wished Respondents to investigate. From that point

forward, Respondents were free to pursue their investigation with no State

control and with no State involvement other than the cooperation of the Office of

the Attorney General. As such, this factor weighs in favor of Respondents.

The final Dow factor is whether the entity was created by private or

legislative action. In the present case, the Legislature was not involved in any

way in authorizing Respondents' investigation. Rather, the Attorney General

acted privately in requesting Respondents' independent investigation. 1

Because all four Dow factors weigh against classifying Respondents as a public agency or political subdivision for purposes of their independent investigation, the documents requested by Petitioner are not public records subject to the FOAA. Respondents, therefore, properly refused to make those documents available to Petitioner.

Therefore, the entry is:

Petitioner's appeal is DENIED. Respondents 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.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this !&~ day of ---/.~=\-:-----.J

1Again, contrary to Petitioner's assertion it is irrelevant that the Attorney General's position is a creature of Legislative enactments. The only relevant inquiry for this factor is whether the entity in question, in this case Respondents as an investigative team, were created through legislative action. They were not. 4 Date Filed 9-20-0,--=6'----- _ CUMBERLAND Docket No. AP-06-49 County

Action BOC APPEAL

JAMES P. MOORE CHARLES ABBOTT, ESQ HON EUGENE BEAULIEU MARVIN GLAZIER, ESQ

Ys.

Plaintiff's Attorney Defendant's Attorney

JAMES P. MOORE (PRO SE) SETH HARROW, ESQ. (BEAULIEU & GLAZIER) PO BOX 1032 PO BOX 919 BRUNSWICK ME 04011 BANGOR ME 0400.2-0919 947-6915

JOHN COLE, ESQ. (ABBOTT) PO BOX 3200 AUBURN, ME 04212-3200 Date of 784-3200 Entry