MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	68	
Docket:	      Yor-17-192	
Submitted	
		On	Briefs:	 October	24,	2017	
Decided:	     May	8,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                       MARCEL	DUBOIS	et	al.	
                                 	
                                v.	
                                 	
    DEPARTMENT	OF	AGRICULTURE,	CONSERVATION	AND	FORESTRY	et	al.	
	
	
HJELM,	J.		

       [¶1]		Marcel	Dubois	and	Sol	Fedder	appeal	from	an	order	of	the	Superior	

Court	(York	County,	O’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	
2	

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	




   1		In	an	opinion	certified	today	in	a	companion	case,	see	Dubois	v.	Office	of	the	Attorney	General,	

2018	ME	67,	---	A.3d	---,	we	rejected	some	of	the	process-based	challenges	that	Dubois	and	Fedder	
make	here,	and	we	also	determined	that	drafts	of	the	January	2016	letter	are	not	subject	to	disclosure	
pursuant	to	FOAA.		In	this	opinion,	we	address	only	those	contentions	advanced	in	this	case	by	Dubois	
and	Fedder	that	were	not	raised	in	that	separate	proceeding.			
                                                                                                   3	

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	




   2		During	this	period,	DACF	received	a	second	FOAA	request	from	Dubois	Livestock.		The	second	

request	was	broader	than	the	first	but	did	not	result	in	the	production	of	any	documents	beyond	
those	produced	in	response	to	the	first	request.			
   3		The	second	affidavit	filed	by	DACF	was	executed	by	a	DACF	office	specialist	and	was	limited	to	

describing	the	oversights	leading	to	the	agency’s	sequential	responses	to	the	FOAA	request.			
4	

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.	80B(j)—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).	




     4		DACF	has	not	appealed	the	latter	aspect	of	the	court’s	order.	


     5	
     	 This	 appeal	 was	 filed	 before	 September	 1,	 2017;	 therefore,	 the	 restyled	 Maine	 Rules	 of	
Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).			
                                                                                       5	

                                   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	by	the	court,	which	we	address	before	proceeding	

to	the	merits	of	the	appeal.			

A.	   Due	Process	

	     [¶8]		Dubois	and	Fedder	argue	that	the	trial	court	violated	their	right	to	

due	process	by	denying	their	request	to	depose	Randall	and	by	relying	on	his	

affidavit	and	that	of	another	DACF	employee	as	the	basis	for	its	factual	findings.		

We	review	due	process	challenges	de	novo.		State	v.	Jones,	2012	ME	126,	¶	35,	

55	A.3d	432.			

      [¶9]		“Due	process	is	a	flexible	concept”	analyzed	on	a	case-by-case	basis.		

Bog	Lake	Co.	v.	Town	of	Northfield,	2008	ME	37,	¶	10,	942	A.2d	700	(quotation	

marks	omitted).		The	two	essential	elements	of	due	process	are	notice	and	the	

opportunity	 to	 be	 heard.	 	 Portland	 Pipe	 Line	 Corp.	 v.	 Envtl.	 Improvement	

Comm’n,	 307	 A.2d	 1,	 15	 (Me.	 1973).	 	 Although	 “[t]he	 right	 to	 confront	 and	

cross-examine	adverse	witnesses	is	constitutionally	required	in	almost	every	

setting	 where	 important	 decisions	 turn	 on	 questions	 of	 fact,”	 in	 some	
6	

circumstances	 the	 absence	 of	 an	 opportunity	 for	 cross-examination	 is	

consistent	with	due	process.		In	re	Me.	Clean	Fuels,	Inc.,	310	A.2d	736,	746-47	

(Me.	1973)	(quotation	marks	omitted).	

	     [¶10]	 	 Pursuant	 to	 1	 M.R.S.	 §	 409(1),	 in	 a	 Superior	 Court	 proceeding	

involving	 a	 challenge	 to	 a	 denial	 of	 a	 FOAA	 request,	 the	 court	 is	 explicitly	

authorized	 to	 “tak[e]	 .	 .	 .	 testimony	 and	 other	 evidence	 as	 determined	

necessary”	 to	 adjudicate	 whether	 the	 denial	 was	 proper.	 	 See	 also	 Dubois	 v.	

Office	of	the	Attorney	General,	2018	ME	67,	¶	13	&	n.6,	---	A.3d	---;	Dubois	v.	Dep’t	

of	Envtl.	Prot.,	2017	ME	224,	¶	10,	174	A.3d	314.		This	constitutes	a	change	from	

the	previous	statutory	requirement	that	the	court	conduct	a	“trial	de	novo”	on	

a	FOAA	appeal.		See	1	M.R.S.	§	409(1)	(2014)	(amended	by	P.L.	2015,	ch.	249,	

§	2	(effective	Oct.	15,	2015));	see	also	Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	

224,	¶	10,	174	A.3d	314.			

      [¶11]		Here,	the	court	determined	that	the	factual	record	would	consist	

of	several	elements:	the	documents	that	were	withheld	or	redacted,	which	the	

court	would	review	in	camera;	an	exceptions	log;	affidavits	submitted	by	DACF	

to	explain	its	denial	of	the	FOAA	request;	and	any	“supporting	materials”	that	

Dubois	and	Fedder	chose	to	file	with	their	brief,	which	was	due	several	weeks	

after	 DACF	 was	 to	 file	 its	 material.	 	 In	 this	 way,	 Dubois	 and	 Fedder	 were	
                                                                                           7	

provided	 with	 both	 notice	 of	 the	 reasons	 for	 DACF’s	 denial	 of	 their	 FOAA	

request	 as	 revealed	 in	 the	 exceptions	 log	 and	 any	 affidavits,	 and	 a	 full	

opportunity	 to	 submit	 their	 own	 responsive	 factual	 data.	 	 We	 also	 note	 that	

most	of	the	information	in	Randall’s	affidavit	is	uncontroverted	and	relates	to	

events	 that	 were	 within	 the	 knowledge	 of	 Dubois	 Livestock,	 such	 as	 its	 own	

threat	 to	 take	 legal	 action	 in	 response	 to	 the	 State’s	 investigation	 and	

communications	between	its	representative	and	state	agents.		And	as	the	court	

observed,	 Dubois	 and	 Fedder	 “could	 have	 challenged	 the	 facts	 asserted	 in	

Randall’s	affidavit	with	their	own	affidavit,”	but	they	did	not	do	so.			

          [¶12]		In	the	circumstances	of	this	case,	the	court	acted	well	within	its	

discretion	by	creating	a	fair	process	for	all	of	the	parties	to	present	information	

that,	 although	 not	 including	 an	 opportunity	 for	 cross-examination,	 would	

create	a	meaningful	and	sufficient	record	on	which	the	court	could	adjudicate	

the	 FOAA	 claim.	 	 See	 Dubois	 v.	 Office	 of	 the	 Attorney	 General,	 2018	 ME	 67,	

¶¶	12-14,	---	A.3d	---;	Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	10,	174	A.3d	

314.			

          [¶13]	 	 Similarly,	 the	 court	 did	 not	 err	 by	 denying	 Dubois	 and	 Fedder’s	

request	 for	 leave	 to	 depose	 Randall.	 	 Although	 the	 court	 incorrectly	 cited	 to	
8	

Maine	 Rule	 of	 Civil	 Procedure	 80B(j)	 as	 authority	 for	 that	 denial,6	 its	 order	

referred	to	the	requirement	of	“good	cause”	found	in	that	Rule	and	stated	that	

Dubois	and	Fedder	had	not	made	such	a	showing	to	justify	deposing	Randall.		

Particularly	 in	 light	 of	 the	 scheduling	 priority	 that	 the	 Legislature	 has	

authorized	courts	to	give	FOAA	actions,	see	1	M.R.S.	§	409(1)	(2017),	the	limited	

legal	 issues	 raised	 in	 this	 proceeding,	 and	 the	 nature	 of	 the	 information	

contained	in	Randall’s	affidavit	that	was	mostly	within	Dubois	Livestock’s	own	

knowledge,	 Dubois	 and	 Fedder	 did	 not	 demonstrate	 either	 that	 there	 was	

justification	 to	 depose	 Randall	 or	 that	 the	 absence	 of	 such	 an	 opportunity	

interfered	with	the	process	to	which	they	were	due.			

B.	      Informant	Identity	Privilege	

         [¶14]		We	now	turn	to	the	merits	of	Dubois	and	Fedder’s	argument	that	

the	court	erred	by	declining	to	order	production	of	records	that	DACF	claimed	




      6		As	is	noted	in	our	opinion	in	the	companion	case,	see	supra	n.1,	a	FOAA	proceeding	in	court,	

although	described	in	the	statute	as	an	“appeal,”	see	1	M.R.S.	§	409	(2017),	is	actually	a	de	novo	action	
and	therefore	is	not	governed	by	a	procedural	rule	applicable	to	appeals.		See	Dubois	v.	Office	of	the	
Attorney	General,	2018	ME	67,	¶	7	n.3,	---	A.3d	---.			
                                                                                         9	

were	 within	 the	 confidential	 informant	 identity	 privilege	 and	 therefore	 not	

subject	to	disclosure.			

      [¶15]	 	 “In	 reviewing	 whether	 a	 government	 entity	 complied	 with	 the	

FOAA,	 we	 review	 factual	 findings	 for	 clear	 error	 but	 review	 the	 trial	 court’s	

interpretation	of	the	FOAA	de	novo.”		Hughes	Bros.,	Inc.	v.	Town	of	Eddington,	

2016	ME	13,	¶	21,	130	A.3d	978	(citations	omitted).		“The	burden	of	proof	is	on	

the	 agency	 or	 political	 subdivision	 from	 which	 the	 information	 is	 sought	 to	

establish	just	and	proper	cause	for	the	denial	of	a	FOAA	request.”		MaineToday	

Media,	 Inc.	 v.	 State,	 2013	 ME	 100,	 ¶	 9,	 82	 A.3d	 104	 (alteration	 omitted)	

(quotation	marks	omitted);	see	1	M.R.S.	§	409(1).		

      [¶16]		The	emails	within	the	FOAA	request	fall	within	the	general	scope	

of	material	that	could	be	subject	to	disclosure.		See	1	M.R.S.	§	402(3)	(defining	

“public	 records,”	 which	 may	 be	 subject	 to	 disclosure	 pursuant	 to	 1	 M.R.S.	

§	408-A(1),	as	including	any	matter	in	tangible	or	electronic	form	that	is	in	the	

possession	or	custody	of	a	state	agency	or	public	official	and	that	was	received	

or	prepared	for	use	in	connection	with	government	business).		The	universe	of	

these	“public	records”	that	are	otherwise	subject	to	FOAA	disclosure,	however,	

is	 subject	 to	 exceptions.	 	 Id.	 §	 402(3).	 	 One	 of	 those	 exceptions	 applies	 to	

“[r]ecords	that	would	be	within	the	scope	of	a	privilege	against	discovery	or	use	
10	

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.”		

Id.	 §	 402(3)(B).	 	 We	 liberally	 construe	 and	 apply	 FOAA	 but	 strictly	 construe	

statutory	 exceptions	 to	 FOAA	 “to	 promote	 [FOAA’s]	 underlying	 policies	 and	

purposes.”		Doyle	v.	Town	of	Falmouth,	2014	ME	151,	¶	10,	106	A.3d	1145;	see	

Preti	 Flaherty	Beliveau	 &	 Pachios	 LLP	 v.	 State	 Tax	 Assessor,	 2014	 ME	 6,	 ¶	 10,	

86	A.3d	30.	

         [¶17]		Here,	the	court	concluded	that,	pursuant	to	the	informant	identity	

privilege,	 see	 M.R.	 Evid.	 509,	 DACF	 had	 just	 and	 proper	 cause	 to	 redact	 the	

names	 of	 people	 who	 had	 made	 complaints	 about	 Dubois	 Livestock’s	

operations.7	 	 We	 review	 “the	 decision	 to	 disclose	 or	 withhold	 an	 informant’s	

identity	 for	 an	 abuse	 of	 discretion	 or	 other	 error	 of	 law.”	 	 State	 v.	 Boutilier,	

2011	ME	17,	¶	12,	12	A.3d	44	(quotation	marks	omitted).	




      7		Another	exception	is	found	in	1	M.R.S.	§	402(3)(A)	(2017),	which	protects	from	FOAA	disclosure	

“[r]ecords	 that	 have	 been	 designated	 confidential	 by	 statute.”	 	 One	 such	 statute	 is	 7	 M.R.S.	 §	 20	
(2017),	which	designates	as	confidential	information	received	by	DACF	when	the	person	providing	
it	 so	requests	and	 DACF	 “has	 determined	that	 failure	 to	 designate	the	 information	 as	 confidential	
.	.	.	would	result	in	loss	or	other	significant	detriment	to	that	person.”		DACF	has	not	argued	that	the	
identity	of	the	informants	is	privileged	pursuant	to	this	combination	of	statutes,	and	so	we	do	not	
address	the	issue.			
                                                                                                     11	

       [¶18]		Pursuant	to	Maine	Rule	of	Evidence	509(a)(1),	a	state	agency	“has	

a	 privilege	 to	 refuse	 to	 disclose	 the	 identity	 of	 an	 informant.”8	 	 See	 Dubois	 v.	

Dep’t	 of	 Envtl.	 Prot.,	 2017	 ME	 224,	 ¶	 19,	 174	 A.3d	 314.	 	 This	 rule	 “reflects	 a	

recognition	 that	 effective	 use	 of	 informers	 in	 law	 enforcement	 compels	

protection	of	their	anonymity.”		M.R.	Evid.	509	Advisers’	Note	to	former	M.R.	

Evid.	509	(Feb.	2,	1976).		An	“informant”	includes	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).			




   8		In	pertinent	part,	Rule	509	provides:	


       (a)	    Rule	of	privilege	and	definitions.	

               (1)	     Rule	of	privilege.	The	United	States,	a	state	or	subdivision	thereof,	or	
                        any	foreign	country	has	a	privilege	to	refuse	to	disclose	the	identity	of	
                        an	informant.	

               (2)	     Definitions.	As	used	in	this	rule,	an	“informant”	is	a	person	who	has	
                        furnished	information	relating	to	or	assisting	in	an	investigation	of	a	
                        possible	violation	of	law	to:	

                        (A)	    A	law	enforcement	officer	conducting	an	investigation;	or	

                        (B)	    A	member	of	a	legislative	committee	or	its	staff	conducting	an	
                                investigation.	

       (b)	    Who	 may	 claim	 the	 privilege.	 An	 authorized	 representative	 of	 the	 public	
               entity	that	received	the	information	may	claim	the	privilege.	

       M.R.	Evid.	509(a),	(b).			
12	

      [¶19]	 	 Although	 our	 discussion	 of	 Rule	509	 to	 date	 has	 mostly	 been	 in	

cases	where	informants	have	furnished	information	about	criminal	rather	than	

civil	violations	of	the	law,	see,	e.g.,	Boutilier,	2011	ME	17,	12	A.3d	44;	State	v.	

Faust,	1997	ME	135,	696	A.2d	1088;	State	v.	Devlin,	618	A.2d	203	(Me.	1992);	

but	see	Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶¶	18-19,	174	A.3d	314,	the	

express	terms	of	Rule	509	make	plain	that	its	provisions	apply	to	civil	cases.		

See	M.R.	Evid.	 509(d).	 	Also,	the	principles	underlying	the	Rule	 509	 privilege	

apply	to	state	investigations	and	actions	relating	to	civil	violations	of	Maine	law,	

just	as	much	as	in	criminal	cases.		Further,	although	Rule	509	does	not	define	

“law	enforcement	officer,”	see	Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	23	

n.6,	 174	 A.3d	 314,	 the	 Animal	 Welfare	 Act,	 which	 is	 enforced	 by	 DACF,	 see	

7	M.R.S.	 §§	 1,	 3902	 (2017),	 broadly	 defines	 a	 “law	 enforcement	 officer”	 as	 a	

public	 employee	 who	 has	 a	 legal	 duty	 to	 “enforce	 any	 law	 of	 this	 State	

establishing	 a	 civil	 violation,”	 7	 M.R.S.	 §	 3907(18)	 (2017),	 which	 includes	

Randall	 and	 other	 DACF	 officials	 who	 were	 involved	 in	 DACF’s	 investigation	

into	Dubois	Livestock.			

      [¶20]		 The	complainants	provided	 DACF	with	information	about	odors	

emanating	 from	 the	 Dubois	 Livestock	 farm.	 	 Pursuant	 to	 their	 job	

responsibilities,	 Randall	 and	 others	 within	 DACF	 conducted	 an	 investigation	
                                                                                       13	

into	 these	 complaints	 with	 an	 objective	 to	 enforce	 DACF	 regulations.	 	 See	

1	C.M.R.	 01	 001	 010-1	 §	 2(1)	 (2007).	 	 The	 court	 therefore	 did	 not	 abuse	 its	

discretion	 or	 err	 by	 concluding	 that,	 in	 the	 circumstances	 present	 here,	 the	

informant	identity	privilege	applied	to	communications	received	by	DACF.			

      [¶21]	 	 Beyond	 that,	 Dubois	 and	 Fedder	 point	 to	 DACF	 regulations	

requiring	 that,	 when	 the	 agency	 receives	 a	 complaint	 about	 a	 farm	 or	 farm	

operation,	 an	 agricultural	 compliance	 officer	 is	 required,	 “[a]s	 soon	 as	

practicable,”	to	notify	the	respondent	about	the	complaint,	including	the	name	

of	 the	 complainant.	 	 1	C.M.R.	 01	 001	 010-2	 §§	 3(2),	 3(3)	 (2007).	 	 From	 this,	

Dubois	and	Fedder	argue	that	the	names	of	the	informants	cannot	be	treated	as	

confidential	 for	 FOAA	 purposes.	 	 Rule	 509,	 however,	 does	 not	 create	 an	

exception	to	the	informant	identity	privilege	for	informants	who	are	subject	to	

disclosure	under	some	provision	of	law.		Instead,	the	Rule	makes	the	privilege	

inapposite	 with	 respect	 to	 informants	 whose	 identities	 have	 already	 been	

disclosed,	M.R.	Evid.	509(c)(1),	and	the	definition	of	“public	records”	found	in	

FOAA	does	not	operate	to	narrow	Rule	509	beyond	its	own	terms,	see	1	M.R.S.	

§	402(3).		Therefore,	whatever	rights	and	remedies	Dubois	and	Fedder	might	

have	 in	 some	 other	 proceeding	 or	 claim	 challenging	 DACF’s	 compliance	 with	

the	regulation	at	issue,	Dubois	and	Fedder	brought	this	appeal	asserting	only	
14	

those	rights	created	in	FOAA,	and	without	raising	any	independent	claims	for	

relief.	 	 Cf.	 Pinkham	 v.	 Dep’t	 of	 Transp.,	 2016	 ME	 74,	 ¶	 11,	 139	 A.3d	 904.		

Whatever	the	effect	of	the	regulations	may	be,	they	are	 not	part	of	the	FOAA	

analysis	in	this	proceeding.9	

        [¶22]		In	sum,	because	the	records	containing	names	of	the	informants	

are	not	“public	records”	as	defined	in	FOAA,	the	court	did	not	err	by	concluding	

the	 DACF	 had	 just	 and	 proper	 cause	 to	 deny	 the	 FOAA	 request	 for	 that	

information.			

        The	entry	is:	

                          Judgment	affirmed.		
	
	       	        	        	        	        	
	                                  	




     9	 	 Even	 if	 Dubois	 and	 Fedder	 are	 correct	 in	 their	 assertion	 that	 the	 regulations	 applicable	 to	

investigations	conducted	by	DACF	required	present	disclosure	of	the	identities	of	the	complainants,	
see	 1	 C.M.R.	 01	 001	 010-2	 §§	 3(2)-3(4)	 (2007)—an	 assertion	 that	 would	 require,	 among	 other	
determinations,	 a	 finding	 that	the	 requirement	 of	 a	 disclosure	 “[a]s	 soon	 as	 practicable”	 does	 not	
allow	 consideration	 of	 factors	 such	 as	 the	 effect	 that	 disclosure	 would	 have	 on	 an	 ongoing	
investigation—the	regulation	would	then	be	in	conflict	with	FOAA,	because	the	records	containing	
that	information	remain	privileged	pursuant	to	Rule	509	and	are	not	“public	record[s]”	within	the	
meaning	of	1	M.R.S.	§	402(3)	and	therefore	not	subject	to	FOAA	production.		When	an	agency	rule	or	
regulation	conflicts	with	a	statute,	the	statute	controls.		See	Baker	v.	S.D.	Warren	Co.,	2010	ME	87,	
¶	15,	3	A.3d	380	(“We	have	struck	down	[Workers’	Compensation]	Board	rules	when	they	directly	
conflict	with	express	statutory	language.”);	Larson	v.	New	England	Tel.	&	Tel.	Co.,	141	Me.	326,	334,	
44	A.2d	1,	5	(1945)	(“Any	regulation	that	conflicts	with	any	existing	statute	must	yield	thereto.”).		
Therefore,	even	as	Dubois	and	Fedder	appear	to	construe	the	regulation,	it	would	not	have	required	
DACF	to	produce	the	material	containing	the	privileged	information	pursuant	to	FOAA.			
                                                                                 15	

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.	
	
	
York	County	Superior	Court	docket	number	AP-2016-22	
FOR	CLERK	REFERENCE	ONLY	
