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Dubois v. Office of Attorney General

Supreme Court of Maine

May 8, 2018


          Submitted On Briefs: October 24, 2017

          Marcel Dubois and Sol Fedder, appellants pro se

          Janet T. Mills, Attorney General, and Thomas A. Knowlton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for cross-appellants Office of the Attorney General, Emily K. Green, and Scott Boak

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

          HJELM, JUDGE.

         [¶1] In an order entered in April of 2017, the Superior Court (York County, O'Neil, J.) affirmed a decision of the Maine Office of the Attorney General denying a request made by Dubois Livestock, Inc., pursuant to the Freedom of Access Act, 1 M.R.S. §§ 400-414 (2017), for drafts of a letter sent in January of 2016 by the Maine Department of Agriculture, Conservation and Forestry (DACF) to Dubois Livestock. In the same order, the court determined that the Office of the Attorney General did not have just and proper cause to deny Dubois Livestock's FOAA request for a series of emails preparatory to a meeting held among agents of several state agencies in connection with enforcement efforts against Dubois Livestock.

         [¶2] Two individuals associated with Dubois Livestock-Marcel Dubois, and Sol Fedder, who submitted the FOAA request on behalf of Dubois Livestock-appeal the first aspect of the court's order, which we affirm because the drafts of the January 2016 letter constitute privileged work product material not subject to FOAA disclosure. The Office of the Attorney General and Assistant Attorneys General Emily K. Green and Scott Boak (collectively, OAG) cross-appeal from the latter part of the order, which we vacate because the emails regarding the meeting are also protected as work product.

         I. BACKGROUND

         [¶3] The following facts are drawn from the court's findings, which are supported by the record, and from assertions contained in OAG's filings that Dubois and Fedder have not disputed.[1] See Dubois v. Dep't of Envtl. Prot, 2017 ME 224, ¶ 3, 174 A.3d 314.

         [¶4] In May of 2015, DACF and the Maine Department of Environmental Protection began to receive and investigate numerous odor complaints relating to Dubois Livestock's business operations, which include producing compost. Because the complaints generated both agricultural and environmental concerns, DACF and DEP conducted a coordinated investigation into these complaints. During that effort, DEP and DACF were represented by assistant attorneys general. On May 8, 2015, Michael Clark, a DEP project manager whose responsibilities encompass regulation of Dubois Livestock's compost operations, requested information from Dubois Livestock about the material spread on its fields. Three days later, Dubois Livestock notified Clark that it intended to file a complaint against DEP for criminal trespass based on an entry by state officials onto the farm's premises. After receiving this letter, Clark met with the assistant attorney general who represented DEP to discuss obtaining an administrative inspection warrant to enter Dubois Livestock's fields and facilities. DEP began drafting an application for the warrant shortly after this meeting. On November 20, 2015, DEP filed an enforcement action against Dubois Livestock.

         [¶5] As for DACF, on October 16, 2015, DACF Agricultural Compliance Officer Matt Randall sent an email to Dubois Livestock also requesting information about the materials spread on its fields. In response, Dubois Livestock notified DACF that it would not be "coerced or bullied into answering" the agency's questions about the farming operations. At that point, DACF began to consider bringing its own action against Dubois Livestock to enforce agriculture laws based both on the underlying complaints and on Dubois Livestock's refusal to cooperate with the State's investigation. During his investigation, Randall became aware that Dubois had threatened to bring a criminal trespass action against DEP. In January of 2016, Randall, on behalf of DACF, sent a letter to the directors and managers of the various Dubois Livestock entities explaining that legal protections against nuisance complaints were not available to the farms unless they cooperated with DACF's investigation. It appears from OAG's briefs filed with the trial court and on this appeal that the January 2016 letter was the final product of the drafts that Dubois and Fedder seek to obtain in this action.

         [¶6] On April 27, 2016, OAG received a FOAA request from Sol Fedder as representative of Dubois Livestock. See 1 M.R.S. § 408-A. The request sought drafts of the January 2016 letter that Randall sent to Dubois Livestock and documents pertaining to a meeting of DEP, DACF, and OAG employees held on December 4, 2015.[2] OAG denied the FOAA request in its entirety, see id. § 408-A(4), asserting that the records were prepared in anticipation of litigation and were therefore protected as work product not subject to FOAA disclosure, see id. § 402(3)(b).

         [¶7] Dubois and Fedder challenged OAG's denial of the FOAA request in an action filed in the Superior Court.[3] See 1 M.R.S. § 409. On motion filed by OAG, the court issued a scheduling order directing OAG to submit the contested documents under seal for the court's in camera review and to file with the court, with a copy to Dubois and Fedder, an exceptions log identifying the documents and the reasons they were withheld. The scheduling order also permitted OAG to file with the court, again with a copy to Dubois and Fedder, an affidavit explaining its decision to withhold the documents at issue. The order allowed Dubois and Fedder to then file "supporting materials" and established a briefing schedule. With its brief, OAG filed affidavits executed by Randall and another DEP official. Dubois and Fedder filed a brief containing arguments of law, but they did not submit their own affidavits or any other material.

         [¶8] The court conducted an in camera review of the documents submitted by OAG and held oral argument. In April of 2017, the court issued an order concluding that the drafts of the letter sent by DACF to Dubois Livestock were not subject to disclosure pursuant to FOAA because they were created in anticipation of litigation and therefore protected as work product containing mental impressions, conclusions, and legal theories. The court determined, however, that the emails concerning the December 4, 2015, meeting among DEP and DACF agents and assistant attorneys general representing ...

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