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Bowler v. State

Superior Court of Maine, Kennebec

April 24, 2014

PHILIP BOWLER, SR., Plaintiff/Appellant,
v.
STATE OF MAINE, Defendant/Appellee.

ORDER

Before the Court is Philip Bowler's appeal from the denial by the Office of the Attorney General of Bowler's request to obtain access to investigative materials pertaining to the death of Sally Moran. Plaintiff argues that he is entitled to the records pursuant to Maine's Freedom of Access Act, 1 M.R.S.A. § 400 et seq. and because P.L. 1993, ch. 719, § 11 is unconstitutional.

FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2013, Mr, Bowler made a request pursuant to the Maine Freedom of Access Act to examine the investigative materials in the possession of the Attorney General's Office pertaining to Sally Moran, who disappeared from Monhegan Island on July 9, 1953 and whose body was later found near Portland Headlight on July 30, 1953. (Br. of Resp. 1.) The Attorney General's Office located the investigative records requested by Mr. Bowler, however, on September 19, 2013, based on P.L. 1993, ch. 719, §11, denied Mr. Bowler's request. On September 26, 2013, he filed an appeal of the Office of the Attorney General's September 19, 2013 decision, pursuant to 1 M.R.S.A. § 409(1). The parties conferred telephonically with the Court and agreed to a stipulation of facts as laid out in the parties' pleadings, in lieu of a trial. The Court has reviewed in camera the documents at issue, considered the oral arguments of the parties, as well as their written submissions (the last of which was received on March 27, 2014) and issues the following order.

STANDARD OF REVIEW

On appeal, a party aggrieved by a Freedom of Access Act denial is entitled to de novo review in the Superior Court. 1 M.R.S.A. § 409(1). Thus, the Court eschews the ordinary 80C standard of review contained in the Administrative Procedure Act. Maine Today Media, Inc. v. State, 2013 WL 1495310 (Me. Super. Mar. 6, 2013), rev'd on other grounds, 2013 ME 100, 82 A.3d 104. On such an appeal the burden of establishing just cause for the denial of the request falls upon the municipality or governmental agency seeking to withhold the document or documents in question. Maine Today Media, Inc. v. City of Portland, 2013 WL 4516548, at *1 (Me. Super. June 24, 2013) (citing Town of Burlington v. Hospital Admin. District No. I, 2001 ME 59 ¶ 13, 769 A.2d 857).

With respect to the second claim made by the Plaintiff, that the statute (P.L. 1993, Ch. 719) in question is unconstitutional, he bears the burden to overcome the presumption that the law is constitutional. Godbout v. WLB Holding, Inc., 2010 ME 46 ¶5.

Whether there is just cause for the State to withhold the documents

Pursuant to section 408-A of the Maine Freedom of Access Act, any "person has the right to inspect and copy any public record in accordance with this section within a reasonable time of making the request to inspect or copy the public record." 1 M.R.S. § 408-A. Section 402 of the Act defines the term "public records" as "any written, printed or graphic matter or any mechanical or electronic data compilation . . . that is in the possession or custody of an agency or public official 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 or contains information relating to the transaction of public or governmental business, " but it specifically excludes "[r]ecords that have been designated confidential by statute." 1 M.R.S.A. § 402.

Prior to 1995, Maine law, specifically 5 M.R.S.A. § 200-D, provided that "[notwithstanding any other provisions of law, all. . . investigative records of the Department of the Attorney General shall be and are declared to be confidential." (Br. of Resp. Ex. B.) However, in 1995, [1] 5 M.R.S.A. § 200-D was repealed by P.L. 1993, ch. 719, which in relevant part provides as follows:

Reports or records that contain intelligence and investigative information and that are prepared by, prepared at the direction of or kept in the custody of . . . the Department of the Attorney General are confidential and may not be disseminated if there is a reasonable possibility that public release or inspection of the reports or records would:
A.Interfere with law enforcement proceedings;
B. Result in public dissemination of prejudicial information concerning an accused person or concerning the prosecution's evidence that will interfere with the ability of a court to impanel an impartial jury;
C. Constitute an unwarranted invasion of privacy;
D. Disclose the identity of a confidential ...

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