Dubois v. Maine Department of Environmental Protection

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. AP-15-28

MARCEL DUBOIS, and

SOL FEDDER,

Petitioners,

v. ORDER

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION et al.,

Repondents.

I. Background

This case concerns Maine's Freedom of Access Act ("FOAA"), 1 M.R.S . §§ 400­

414. Petitioners appeal to this court contending the Maine Department of Environmental

Protection failed to adequately respond to their FOAA requests . 1 M.R.S . § 409(1).

The DEP received petitioners' FOAA request on July 6, 20 15. Petitioners

requested ali pubiic records of ali correspondence between DEP project manager Michaei

Clark and a number public officials from the Town of Arundel between March 15, 2015

and July 6, 2015 "that in any manner relates, pertains, involves or mentions Dubois

Livestock, Inc." and Dubois farm. (Resp. Opp. Ex. F.) The Town officials identified in

the FOAA request included Planning Board members, Selectmen, past Town Manager

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Todd Shea, current Tov-'ll Manager Jack Turcotte, To\\'11 Planner Tad Redway, Arundel

Code Enforcement Officer Jim Nagle, and To\\'11 Attorney Leah Rachin. (Id.)

Petitioner Marcel Dubois O\\'llS and manages Dubois Livestock, Inc. , which

operates a composting facility in Arundel licensed by DEP. Petitioner Sol Fedder serves

as clerk and registered agent of the corporation. Odor complaints regarding the Dubois

composting facility during spring through fall of 2015 and interactions between

petitioners, DEP, and the Town prompted this FOAA request. The composting facility is

the subject of another matter presently pending before this court, State of Main e

Department of Environmental Protection et al. v. Dubois Livestock, Inc. et al. , CV-15­

262.

II. Discussion

A. Motion to Strike

In supp01i of the brief supporting the various grounds for redacting or withholding

documents within the FOAA request, DEP submitted a lengthy affidavit from the DEP

Supervisor for the Residuals Management Unit, Carla Hopkins . Petitioners move to strike

all 138 paragraphs of the Hopkins affidavit on various theories of inadmissibility. They

argue that Hopkins lacks personal knowledge of matters averred in the affidavit, lacked

control over the docu.inents at issue, and the affidavit contains inadmissible hearsay.

In relevant part, Rule 56( e) states:

Supporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall

show affim1atively that the affiant is competent to testify to the matters

stated therein.

M.R. Civ. P. 56(e).

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An affidavit from an interested witness can establish or dispute a material fact.

Stanley v. Hancock Cnty. Comm'rs, 2004 ME 157, ,r 19, 864 A.2d 169; see also

Fuhrmann v. Staples the Office Superstore E. , Inc., 2012 ME 135, ,r 16, 58 A.3d 1083

(noting '"self-serving' statements and circumstantial evidence can be used to establish or

dispute a material fact"). On the other hand, an affiant's conclusory and unsupported

assertion that he or she has personal knowledge may be insufficient to establish or dispute

a material fact. Beneficial Me. Inc. v. Carter, 2011 ME 77, ,r 15, 25 A.3d 96 (affidavit

failed to state the basis for personal knowledge). The affiant "must show affirmatively"

that he or she has personal knowledge of the matters asserted. Id. (emphasis added) .

Hopkins avers that she has served as a supervisor in the Residuals Management

Unit since October 2006 and in this capacity has supervised Michael Clark. (Hopkins

A.ff. ,r 121.) Clark is the project manager for the Dubois Composting Facility. (Hopkins

A.ff. ,r 121.) In her supervisory role, Hopkins is closely involved and apprised of Clark's

correspondence and matters related to Dubois Livestock, Inc., including complaints,

interactions, and developments at the composting facility. (Hopkins A.ff. ,r 123.) Hopkins

avers that based on her position and review of the documents at issue, she has personal

knowledge of all matters set forth in her affidavit. (Hopkins A.ff. ,r 124.)

Petitioners argue that because Hopbns relies on information gleaned from

documents and third parties, the facts asserted in the affidavit are not based on personal

knowledge. Petitioners do not specifically identify paragraphs of the affidavit that are

deficient, lodging only general objections to the document as a whole. A review of the

affidavit, together with representations about the basis for knowledge, demonstrates

adequate foundation and largely establishes Hopkins is competent to testify to a number

,.,

.)

of matters asserted based on her ovvn personal involvement in the Dubois case at DEP

and supervision of Michael Clark. (Hopkins Aff. ,r,r 122-124.)

The affidavit stretches 51 pages and the court will have to individually review

each of the 120 documents at issue to independently ascertain the basis for DEP's

redaction or withholding. The court will in any event have to make these determinations

in the first instance; there is fairly little substantive evidentiary value in the affidavit.

DEP would not dispute this. (Opp. Mot. Strike 2) (characterizing affidavit as "time­

saving mechanism" to "facilitate" in camera review of the documents at issue).

To the extent portions of the affidavit are properly based on personal knowledge

and assert bare facts, the court will consider them. The court will not, however, consider

those portions of the Hopkins affidavit that are not based on personal knowledge, rely on

inadmissible hearsay, or set forth legal conclusions. See M.R. Civ. P. 56(e).

Absent more targeted objections by petitioners, the court denies the motion to

strike. Consistent with Rule 56 and the Rules of Evidence, the court will consider only

admissible portions of the Hopkins affidavit to whatever weight deserved in considering

the FOAA issues.

B. FOAA

Petitioners have not filed a responsive brief, only the n1otio11 to strike, and

maintain that DEP is obligated to tum over all documents largely because any possible

privilege has been waived.

1. Standard

FOAA intends to promote public access to records and ope1mess in government. 1

M.R.S . § 401. Where members of the public submit a FOAA request, the government

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actor has the burden "to establish just and proper cause for the denial of a FOAA

request." Town ofBurlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59, ,r 13, 769 A.2d

857. Under FOAA, the public have the right to inspect and copy any "public record,"

defined as:

any written, printed or graphic matter or any mechanical or electronic data

compilation from which information can be obtained, directly or after

translation into a form susceptible of visual or aural comprehension, that is

in the possession or custody of an agency or public official of this State or

any of its political subdivisions, or is in the possession or custody of an

association, the membership of which is composed exclusively of one or

more of any of these entities, and has been received or prepared for use in

connection with the transaction of public or governmental business or

contains information relating to the transaction of public or governmental

business, except: A. Records that have been designated confidential by

statute; B. Records that would be within .the scope of a privilege against

discovery or use as evidence recognized by the courts of this State in civil

or criminal trials if the records or inspection thereof were sought in the

course of a court proceeding;

1 M.R.S. § 402(3). The Law Court has emphasized that "because the Freedom of Access

Act mandates that its provisions ' shall be liberally construed"' courts "must interpret

strictly any statutory exceptions to its requirements. " Springfield Terminal Ry. Co. v.

DOT, 2000 ME 126, ,r 8, 754 A.2d 353 (citation omitted) (quotation marks omitted).

"When a public record contains information that is not subject to disclosure under FOAA,

the infonnation may be redacted to prevent disclosure." Doyle v. Town ofFalmouth, 2014

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2. Basis for Non-disclosure

DEP redacted or withheld ce1iain documents for the following stated reasons: (1)

not responsive or outside the scope of the request, (2) protection of confidential

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informants' identity, (3) work product privilege, and (4) sensitive personnel records.

Having reviewed the documents in camera, the court concludes as follows. 1

a. Relevance and the FOAA Request Scope

DEP redacted information or excluded documents that concerned unrelated DEP

business and therefore was beyond the request for material "that in any manner relates,

pertains, involves or mentions Dubois Livestock, Inc." and Dubois fam1. (Resp. Opp. Ex.

F.) According to the FOAA privilege log generated by DEP, around 15 or so of the 120

documents within the FOAA request assert "not relevant" as the sole basis for redaction,

without citation to legal authority.

Although DEP is correct the infonnation bears no relation to Dubois Livestock,

Inc., and therefore technically fell outside the specific FOAA request, there is no

authority in the statute or the case law for excising non-confidential or non-privileged

information from a document otherwise within the scope of the request on relevance

grounds. See, e.g. , Mainetoday Media, Inc. v. State, 2013 ME 100, ,r 15 n.11, 82 A.3d

104 ("The issue of redaction itself is also the subject of some dispute. The statute requires

the excising of confidential information from an otherwise public document.") (citing 25

M.R.S. § 2929(1)-(3) (2012)); see also Doyle, 2014 ME 151 , ,r,r 13-16, 106 A.3d 1145

(holding phone call information and numbers exempt from disclosure under FOAA and

therefore Town lawfully redacted information). In both Mainetoday and Doyle, there

were specific grounds that justified redactions within the documents at issue. No such

basis for confidentiality or privilege has been asserted here.

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Petitioners are not entitled to unredacted copies of the redacted documents the court has

reviewed as part of the in camera inspection. See Doyle v. Town of Falmouth, 2014 ME 151 , ~ 1

n.2 , 106 A.3d 1145 (court acted within discretion in denying petitioner's "request to revi ew the

redacted information when it was submitted to the court for in camera inspection").

In light of the liberal construction of FOAA, the broad purpose to provide full

disclosure, and the strict construction of enumerated exceptions, relevance alone is not a

proper basis to redact information within a disclosed public document. See John Doe

Agency v. John Doe Corp., 493 U.S. 146, 150 (1989) (noting federal Freedom of

Information Act (FOIA) would compel disclosure of materials beyond the scope of

ordinary discovery); Mainetoday Media, Inc., 2013 ME 100, ,r 8 n.5 , 82 A.3d 104

("Cases decided pursuant to FOIA inform our analysis of Maine's FOAA."). DEP has not

met its burden to establish a recognized exception to FOAA. DEP must produce

unredacted copies of the documents partially redacted on relevance grounds.

DEP contends all other withholdings were done to protect informant identity,

privileged work product, or sensitive persom1el information. Each ground is considered

below.

b. Informants

The Maine Rules of Evidence recognize that the state may assert privilege and

refuse to disclose the identity of confidential informants. M.R. Evid. 509(a)(l). "[A]n

'informant' is a person who has furnished information relating to or assisting in an

investigation of a possible violation of law to: A law enforcement officer conducting an

investigation." M.R. Evid. 509(a)(2)(A). The U.S. Supreme Court, interpreting federal

Rule 509 and FOIA, has recognized that evidentiary privilege can defeat an otherwise

valid Freedom of Access request served upon an administrative agency. See EPA v. J..1ink,

410 U.S. 73 , 89 n.16-(1973).

The DEP redacted addresses, telephone numbers, and other identifiable personal

info1mation to protect the identity of confidential informants. Because Clark and DEP

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were investigating complaints of odors in Arundel near the Dubois composting facility,

Clark's notes document communications with third parties who filed complaints,

provided DEP with information, and wished to remain confidential.

Because DEP officials were investigating odor complaints and suspected

violations of applicable state laws and regulations, the state is entitled to assert privilege

under Rule 509. The exceptions do not apply because the identities of the infom1ants

have not been revealed and have not appeared as witnesses for the state. M.R. Evid.

509(c). Because the information was privileged, it was not subject to disclosure under

FOAA and lawfully redacted. See 1 M.R.S. § 402(3)(A) (excluding "[r]ecords that would

be within the scope of a privilege against discovery or use as evidence . . ." from

disclosure under FOAA).

c. Work Product

Under Rule 26, materials generated in anticipation of litigation are protected from

discovery.

[A] party may obtain discovery of documents and tangible things

otherwise discoverable under subdivision (b )(1) of this rule and prepared

in anticipation of litigation or for trial by or for another party or by or for

that other party's representative (including the other party's attorney,

consultant, surety, indemnitor, insurer, or agent) only upon a showing that

the party seeking discovery has substantial need of the materials in the

preparation of the party's case and that the party is unable without undue

hardship to obtain the substantial equivalent of the materials by other

means. In ordering discovery of such materials when the required showing

has been made, the court shall protect against disclosure of the mental

impressions, conclusions, opinions, or legal theories of an attorney or

other representative of a · party concerning the litigation.

Me. R. Civ. P. 26(b)(3).

So-called "work product" is privileged material not subject to disclosure under

FOAA. Springfield Terminal Ry. Co. v. DOT, 2000 ME 126, , 13 , 754 A.2d 353. "A

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document is protected as work product only if it was created because of the party's

subjective anticipation of future litigation." Id. ~ 16. The subjective anticipation of

litigation must be objectively reasonable. Id. "A party generally must show that the

documents were prepared principally or exclusively to assist in anticipated or ongoing

litigation" determined by whether under the factual circumstances, "the document can be

fairly said to have been prepared or obtained because of the prospect of litigation." Id. ~

17 (citation omitted) (quotation marks omitted). In determining whether a party

reasonably anticipated litigation such that the work product doctrine applies, the preparer

must "face[] an actual claim or a potential claim following an actual event or series of

events that reasonably could result in litigation." Id. ~ 19. The preparer need not be an

attorney for the doctrine to apply . Id. ~ 18.

On May 8, 2015, DEP informed Dubois Livestock, Inc. via email that DEP

believed the composting facility was violating solid waste rules. Dubois Livestock, Inc.

responded by email: "we are filing a complaint against YOU for criminal trespass . You

have been told not to come on our Farm Property without us being present. Your choice

to surreptitiously enter our POSTED land leaves us no choice but to alert the authorities.

Also, if we see you on our property, again, we will call the Sheriff to have you arrested."

(Resp. Brief Ex. M.)

DEP asserts that after May 11, 2015, the agency subjectively and reasonably

ahticipated litigation with Dubois Livestock, Inc., due to increasingly strained and tense

communications, suspicion that Dubois was not in compliance with its license and solid

waste rules, and effo1is between DEP and attorneys to draft an administrative search

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warrant to conduct a search of the composting facility and to seize samples of materials

on the site.

The comi's in camera review of the documents reveals that the documents

redacted and excluded on the basis of work product doctrine were properly withheld.

Following the May 11th email, DEP subjectively and objectively could have anticipated

imminent litigation concerning Dubois Livestock, Inc. 's compliance with applicable law.

Many of the documents are intra-depaiiment emails among DEP staff regarding the

Dubois Livestock, Inc. 's compliance, potential enforcement strategies, and efforts to seek

the advice of attorneys within the agency and at the Attorney General ' s Office. These

communications and notes fall squarely within work product doctrine privilege. See 1

M.R.S . § 402(3)(A) .

d. Personnel Records

DEP lastly asserts withholding and redaction of documents that contained

confidential personnel information.

Certain personnel records are expressly excluded from the definition of "public

record" for the purposes of FOAA. 5 M.R.S. § 7070 (expressly referencing 1 M.R.S. §

402). The statute specifically identifies "Medical information of any kind, including

information pertaining to diagnosis or treatment of mental or emotional disorders" and

"Information pertaining to the personal history, general character or conduct of members

of the employee's immediate family." 5 M .R.S. § 7070(2)(A), (D).

DEP asserts the information redacted is confidential under 5 M .R.S . § 7070.

Having reviewed the redacted documents, the court concludes the excised p01iions

contained confidential personnel medical and family member infom1ation. The

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infonnation was therefore outside the definition of "public records" under FOAA and

properly withheld. 5 M.R.S . § 7070(2); 1 M.R.S. § 402(3)(B) (excluding records

"designated confidential by statute" from "public records" FOAA definition).

III. Conclusion

In light of the foregoing, the court concludes that with the exception of materials

redacted or withheld solely on the basis of relevance, DEP properly excised confidential

or privileged materials from documents produced in response to petitioners' FOAA

request. DEP had "just and proper cause" to exclude the information. Town of

Burlington, 2001 ME 59, ~ 13 , 769 A.2d 857.

The entry shall be:

The motion to strike is DENIED. The appeal is GRANTED as to materials

withheld solely on the basis of relevance or non-responsiveness to the

FOAA request. DEP shall produce the documents without redaction of

information deemed inelevant or nomesponsive. The appeal is DENIED

in all other respects . All other requests for relief are DENIED.

SO ORDERED.

DATE: May _i_K, 2016

Jolm O'Neil, Jr.

Justice, Superior Court

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