MARCEL DUBOIS et al.
DEPARTMENT OF AGRICULTURE, CONSERVATION AND FORESTRY et al.
Submitted On Briefs: October 24, 2017
Dubois and Sol Fedder, appellants pro se
T. Mills, Attorney General, and Mark A. Randlett, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellees
Department of Agriculture, Conservation and Forestry et al.
SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY,
Marcel Dubois and Sol Fedder appeal from an order of the
Superior Court (York County, 0'Neil, J.)
affirming part of a decision of the Department of
Agriculture, Conservation and Forestry (DACF) to deny
portions of their request for records pursuant to the Freedom
of Access Act (FOAA), see 1 M.R.S. §§
400-414 (2017). We affirm the order.
The records at issue in this case are a series of drafts of a
letter that, in final form, DACF sent in January of 2016 to
representatives and entities associated with Dubois
Livestock, Inc., a composting facility; and portions of
internal emails that identify people who made complaints
against Dubois Livestock. The following facts are drawn from the
court's findings, which are supported by the record, and
from assertions contained in DACF's filings that Dubois
and Fedder have not disputed. See Dubois v. Dep't of
Envtl. Prot, 2017 ME 224, ¶ 3, 174 A.3d 314.
In May of 2015, DACF began to receive and, in coordination
with the Department of Environmental Protection, investigate
odor complaints against Dubois Livestock. In February of
2016, DACF received a FOAA request from Dubois seeking
documents related to Dubois Livestock. In DACF's initial
response, it provided documents, including copies of emails,
that contained no redactions. Over the next several months,
DACF supplemented its response by providing additional
emails, some of which were partially redacted, and by denying
the FOAA request altogether as to several other emails and
drafts of a letter that Matthew Randall, Agricultural
Compliance Supervisor for DACF, sent in January of 2016 to
various people associated with Dubois Livestock. In denying
those portions of the FOAA request, DACF asserted that the
material was not subject to disclosure because some of it
contained privileged information identifying informants and
the rest constituted work product.
In late May of 2016, Dubois and Fedder filed an action in the
Superior Court challenging DACF's partial denial of the
FOAA request, naming DACF, Randall, and the DACF Commissioner
as defendants. During pretrial proceedings, the court issued
a scheduling order directing DACF 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 itemizing those documents and the
reasons the requested material was redacted or withheld. The
order permitted DACF to file with the court, with a copy to
Dubois and Fedder, affidavits supporting the partial denial
of the FOAA request, and the order also allowed Dubois and
Fedder to file a brief and "supporting materials."
Pursuant to the order, DACF filed two affidavits, including
one executed by Randall,  an exceptions log, and written
argument. Dubois and Fedder's submissions consisted of an
objection to Randall's affidavit and an embedded motion
to strike the affidavit, a motion to depose Randall, and a
principal brief and a reply brief.
After reviewing the sealed documents in camera and
holding oral argument, in April of 2017 the court entered an
order concluding that DACF properly had redacted and withheld
most of the material at issue because it was privileged as
work product or confidential informant identification, but
ordered DACF to produce other parts of two of the
documents. In the order, the court also summarily
denied Dubois and Fedder's motion to strike Randall's
affidavit, and it denied their motion seeking leave to depose
Randall, explaining that none of the circumstances allowing
discovery as set out in M.R. Civ. P. 80BQ)-including good
cause-was present and that Dubois and Fedder could have filed
affidavits themselves to challenge the facts asserted in
Dubois and Fedder timely filed a notice of
appeal. M.R. App. P. 2(b)(3) (Tower 2016).
As they did in other recent cases involving the same or
similar issues, see Dubois v. Dep't of Envtl.
Prot,2017 ME 224, 174 A.3d 314; Dubois v. Office of
the Attorney General,2018 ME 67, ___A.3d ___, Dubois
and Fedder challenge the process used ...