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Abstract

In Moore v. Abbott, a divided Maine Supreme Judicial Court, sitting as the Law Court, held that a three-member panel organized by the Attorney General to investigate alleged misconduct by prosecutors and law enforcement officers did not constitute an "agency" or "public official" under Maine's Freedom of Access Act (FOAA). Therefore, the panel did not have to release records compiled during its review of the investigation and prosecution of Dennis Dechaine, who was convicted for the 1988 murder of Sarah Cherry. Justice Alexander, writing for the majority, applied a four-part test looking to whether the panel was the functional equivalent of a government agency and concluded that it was not, which meant its records could be kept confidential. Justice Levy, joined in his dissent by Justice Mead, characterized the facts differently and applied a broader version of the functional equivalency test to reach the opposite conclusion: the panel was acting as the functional equivalent of a government agency. However, Justice Levy's dissent did not go so far as to assert that the records should be public; rather, he concluded that the panel acted as an agency under the FOAA, but that further analysis must be done to determine whether other statutory provisions prevent disclosure. There are several issues in the Moore decision. Most significantly, the majority opinion undermined the Maine Legislature's policy favoring disclosure of government records. The Law Court previously noted that the FOAA's purpose "is to open public proceedings and require that public actions and records be available to the public," a result not achieved here. Additionally, the majority and dissenting opinions did not share the same understanding of the historical facts. For example, it is unclear from the majority and dissenting opinions whether the panel had access to the entire Dechaine file, including photographs of the victim designated confidential by the Maine Legislature, or whether it only had access to portions already available for public inspection. Consequently, the majority and dissenting opinions turned to different versions of the law; the majority adhered to a narrow view of the functional equivalency test, while the dissent applied a broader version that is in sync with the way several other jurisdictions supplement their freedom of access laws. Ultimately, the dissent's analysis better effectuated the legislature's policy of openness; therefore, the Law Court should adopt that policy in the future.

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