MARCEL DUBOIS et al.
DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. 
Submitted On Briefs: June 14, 2017.
Dubois and Sol Fedder, appellants pro se.
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
REPORTER OF DECISIONS
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),
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.
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
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).
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
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.
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
Maine Rules of Appellate Procedure have been restyled
effective for appeals commenced on or after September 1,