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Dubois v. Department of Agriculture

Supreme Court of Maine

May 8, 2018

MARCEL DUBOIS et al.
v.
DEPARTMENT OF AGRICULTURE, CONSERVATION AND FORESTRY et al.

          Submitted On Briefs: October 24, 2017

          Marcel Dubois and Sol Fedder, appellants pro se

          Janet 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.

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

          HJELM, JUDGE.

         [¶1] 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.

         I. BACKGROUND

         [¶2] 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.[1] 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.

         [¶3] 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.[2]

         [¶4] 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, [3] 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.

         [¶5] 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.[4] 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 Randall's affidavit.

         [¶6] Dubois and Fedder timely filed a notice of appeal.[5] M.R. App. P. 2(b)(3) (Tower 2016).

         II. DISCUSSION

         [¶7] 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 ...


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