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Dubois v. Department of Environmental Protection

Supreme Court of Maine

December 7, 2017

MARCEL DUBOIS et al.
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. [1]

          Submitted On Briefs: June 14, 2017.

          Marcel Dubois and Sol Fedder, appellants pro se.

          Janet T. Mills, Attorney General, Katherine E. Tierney, Asst. Atty. Gen., and Scott W. Boak, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Environmental Protection.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.

          REPORTER OF DECISIONS

          SAUFLEY, C.J.

         [¶1] Marcel Dubois and Sol Fedder appeal from a judgment of the Superior Court (York County, O'Neil, J.) affirming, in part, the Department of Environmental Protections partial denial of their Freedom of Access Act (FOAA) request, pursuant to 1 M.R.S. § 408-A (2014), [2] for public records related to Dubois Livestock, Inc. The Department had provided a substantial set of records to Dubois and Fedder, but it denied the FOAA request in part, citing the exception from the definition of public records in 1 M.R.S. § 402(3)(B) (2016) for records that would be privileged against discovery or use as evidence in the course of a court proceeding.

         [¶2] Dubois and Fedder argue that they were denied due process and that the court erred in its interpretation of the work product privilege, see M.R. Civ. P. 26(b)(3), and the informant identity privilege, see M.R. Evid. 509(a), in affirming the Departments partial denial of their requests. We reject the due process challenge and affirm the courts judgment as to the records that were withheld based on the work product privilege. Because we cannot determine on this record whether records identifying complainants to the Department were public records, we vacate the courts judgment as to the records that were withheld based on the informant identity privilege and remand to the trial court for further proceedings.

         I. BACKGROUND

         [¶3] The facts are drawn from the procedural record and the admitted allegations in Dubois and Fedders FOAA appeal in the Superior Court. On July 6, 2015, Dubois, Fedder, and others submitted a "very broad" FOAA request to inspect and copy Department records related to a composting facility operated by Dubois Livestock, Inc. In August, the Department produced certain documents in response to the request. Other documents were either redacted or withheld by the Department. See 1 M.R.S. § 408-A(4). The Department provided a "FOAA Exceptions Log" in which it gave its reasoning for withholding or redacting information from each document. As relevant to this appeal, the Department based its refusal to allow Dubois and Fedder to inspect or copy certain records on the work product and informant identity privileges. See 1 M.R.S. § 402(3)(B); M.R. Civ. P. 26(b)(3); M.R. Evid. 509(a).

         [¶4] On September 24, 2015, Dubois and Fedder appealed to the Superior Court from the Departments partial refusal to permit inspection or copying of records. See 1 M.R.S. § 409(1) (2014);3 M.R. Civ. P. 80B; see also Colby v. York Cty. Comm'rs, 442 A.2d 544, 547-48 (Me. 1982). On December 18, 2015, the court held an unrecorded status conference during which, it appears, the parties agreed to a scheduling order, which the Department was asked to draft. On January 21, 2016, the court issued a scheduling order that required the Department to file with the court (1) all the redacted and withheld documents for the courts in camera inspection, (2) any revisions to the initial FOAA Exceptions Log, and (3) an affidavit supporting the Departments position on the redaction and withholding of the disputed documents. The order was 3 Section 409(1) of FOAA was amended to alter the procedure on an appeal to the Superior Court by legislation that took effect on October 15, 2015. P.L. 2015, ch. 249, § 2 (codified at 1 M.R.S. § 409(1) (2016)). issued over Dubois and Fedders due process objection to the solicitation of an affidavit from the Department. After the Department filed the documents, Dubois and Fedder filed a motion to strike the affidavit as hearsay.

         [¶5] In its judgment entered on May 18, 2016, the court denied the motion to strike the affidavit, relying on the rules for affidavits presented in support of summary judgment motions, see M.R. Civ. P. 56, and affirmed the Departments withholding of documents pursuant to the work product and informant identity privileges. The court also affirmed the Departments refusal to permit the inspection or copying of confidential personnel records, but it ordered the disclosure of certain documents within the scope of the FOAA request that the Department had withheld because the Department deemed them not relevant to the request.

         [¶6] Dubois and Fedder filed a timely notice of appeal. See 14 M.R.S. § 1851 (2016); M.R. Civ. P 80B(n); M.R. App. P. 2(b)(3) (Tower 2016).4

          4 The Maine Rules of Appellate Procedure have been restyled effective for appeals commenced on or after September 1, ...


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