Dubois v. Office of the Attorney Gen.
185 A.3d 734
| Me. | 2018Background
- DACF and DEP investigated odor and environmental complaints about Dubois Livestock; agencies coordinated and were represented by assistant attorneys general. DEP filed an enforcement action in November 2015. DACF sent a final letter to Dubois in January 2016 about cooperation and nuisance defenses.
- Dubois Livestock (through Sol Fedder) requested under FOAA drafts of the January 2016 DACF letter and emails concerning a December 4, 2015 meeting among DEP, DACF, and OAG staff.
- OAG withheld the documents as work product (records prepared in anticipation of litigation) and denied the FOAA request; Dubois and Fedder challenged the denial in Superior Court.
- The Superior Court reviewed documents in camera, upheld withholding of the draft letters as work product, but ordered production of the scheduling/meeting emails. Dubois and Fedder appealed; OAG cross-appealed.
- The Law Court affirmed that the draft letters are protected work product (containing attorneys’ mental impressions) and reversed/vacated the order as to the emails, holding the emails were also work product and thus exempt from FOAA disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drafts of DACF's Jan. 2016 letter are public records under FOAA or protected as work product | Drafts are public and not privileged; anticipation of litigation was unreasonable or incomplete | Drafts were prepared in anticipation of enforcement litigation and contain attorneys’ mental impressions; thus protected | Drafts are work product (privileged) and exempt from FOAA disclosure — affirmed |
| Whether emails scheduling/preparing for Dec. 4, 2015 meeting are protected work product | Scheduling emails are non-privileged administrative communications and must be produced | Emails were circulated because litigation was anticipated and reveal strategy and options; protected as work product | Emails are work product and exempt from FOAA — judgment vacated and remanded to deny disclosure |
| Procedural due process re: adequacy of OAG’s exceptions log | Court should have ordered a more detailed log and allowed in-court review of documents by requesters | FOAA and the court’s order satisfied notice; in camera review and affidavits were proper | No due process violation; provided notice and opportunity to be heard — claim denied |
| Use of affidavits by OAG and parties’ opportunity to submit evidence | Affidavits were insufficient/lacked personal-knowledge foundation; requesters should have equal affidavit opportunity | Court’s scheduling order permitted submissions; requesters chose not to submit affidavits; affidavits were adequate | Affidavits and procedures were within court’s discretion; issue waived or without merit — claim denied |
Key Cases Cited
- Dubois v. Dep't of Envtl. Prot., 174 A.3d 314 (Me. 2017) (documents prepared in anticipation of regulatory enforcement may be work product)
- Hughes Bros., Inc. v. Town of Eddington, 130 A.3d 978 (Me. 2016) (standard of review for FOAA compliance)
- Springfield Terminal Ry. Co. v. Dep't of Transp., 754 A.2d 353 (Me. 2000) (work product requires objective anticipation of litigation)
- Preti Flaherty Beliveau & Pachios LLP v. State Tax Assessor, 86 A.3d 30 (Me. 2014) (FOAA construed liberally; exceptions strictly)
- MaineToday Media, Inc. v. State, 82 A.3d 104 (Me. 2013) (agency bears burden to show just and proper cause for FOAA denial)
- Harriman v. Maddocks, 518 A.2d 1027 (Me. 1986) (documents prepared in ordinary course may still be work product if prepared because of anticipated litigation)
- U.S. v. Mass. Inst. of Tech., 129 F.3d 681 (1st Cir. 1997) (waiver of work product by disclosure inconsistent with protecting material from adversary)