PHILLIP M. BOWLER SR.
STATE OF MAINE
Submitted on Briefs: December 1, 2014.
On the briefs: Philip M. Bowler Sr., appellant Pro se.
Janet T. Mills, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Office of the Attorney General.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] In 2013, pursuant to the Freedom of Access Act (FOAA), 1 M.R.S. § § 400-414 (2014), Phillip M. Bowler Sr. requested, and was subsequently denied, access to an investigative file held by the Attorney General concerning a death that occurred in 1953. Bowler appealed the denial of his request to the Superior Court pursuant to 1 M.R.S. § 409. The court (Kennebec County, Murphy, J.) entered a judgment denying the appeal, and Bowler now appeals from that judgment. He contends that (1) the court erred in finding that the file was made confidential by statute; (2) even if the file was confidential, the Attorney General waived that status by releasing a copy of the file to the decedent's family; and (3) releasing the file to a family member but not to him violated his constitutional right to equal protection. We affirm the judgment.
[¶2] The facts are not disputed. In July 1953, Sally Moran disappeared after
going for a walk on Monhegan Island. Her body was recovered from the ocean three weeks later. No one was charged with a crime, and the case is not active. In September 2013, Bowler, in furtherance of a book he wishes to write about the case, requested a copy of the Attorney General's investigative file pursuant to the FOAA. The Deputy Attorney General met with Bowler and denied him access to the file on the ground that it was designated confidential by statute.
[¶3] Bowler appealed to the Superior Court pursuant to 1 M.R.S. § 409(1) and M.R. Civ. P. 80(c). Following a hearing, the court took the matter under advisement, and later ordered further briefing on the issue of whether denying Bowler access to the file violated his right to equal protection. After the parties filed supplemental briefs, the court issued a written order denying Bowler's appeal. Bowler filed a motion for reconsideration that was also denied. This appeal followed.
A. Statutory Confidentiality
[¶4] We construe the FOAA de novo as a question of law. Preti Flaherty Beliveau & Pachios LLP v. State Tax Assessor, 2014 ME 6, ¶ 10, 86 A.3d 30. As the party denying an FOAA request, the State bears the burden of " establishing that there is just and proper cause for the denial." Id . The State asserts that it had cause to deny Bowler's request for the Moran file because a statute makes it confidential.
[¶5] Prior to 1995, the file was unquestionably confidential. A statute then in effect provided: " Notwithstanding any other provision of law, all complaints and investigative records of the Department of the Attorney General shall be and are declared to be confidential." 5 M.R.S.A. § 200-D (1994). Section 200-D was repealed in 1995 as part of a larger piece of legislation bringing the Attorney General's investigative records within the purview of what is now the Intelligence and Investigative Record Information Act (IIRIA), 16 M.R.S. § § 801-809 (2014). P.L. 1993, ch. 719, § 1 (effective July 1, 1995).
[¶6] Relevant here, in the legislation repealing section 200-D, the Legislature included an unallocated provision that the trial court found to be dispositive of the question of Bowler's entitlement to the Moran file:
Reports and records that were created prior to the effective date of this Act [July 1, 1995] that were confidential pursuant to the Maine ...