MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	    2017	ME	224	
Docket:	      Yor-17-23	
Submitted	
  On	Briefs:	 June	14,	2017	
Decided:	     December	7,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	and	HUMPHREY,	JJ.	
	
	
                           MARCEL	DUBOIS	et	al.	
                                    	
                                   v.	
                                    	
              DEPARTMENT	OF	ENVIRONMENTAL	PROTECTION	et	al.1	
	
	
SAUFLEY,	C.J.	

        [¶1]	 	 Marcel	 Dubois	 and	 Sol	 Fedder	 appeal	 from	 a	 judgment	 of	 the	

Superior	 Court	 (York	 County,	 O’Neil,	 J.)	 affirming,	 in	 part,	 the	 Department	 of	

Environmental	 Protection’s	 partial	 denial	 of	 their	 Freedom	 of	 Access	 Act	

(FOAA)	request,	pursuant	to	1	M.R.S.	§	408-A	(2014),2	for	public	records	related	

to	 Dubois	 Livestock,	 Inc.	 	 The	 Department	 had	 provided	 a	 substantial	 set	 of	

records	to	Dubois	and	Fedder,	but	it	denied	the	FOAA	request	in	part,	citing	the	

exception	from	the	definition	of	public	records	in	1	M.R.S.	§	402(3)(B)	(2016)	



    1		Although	Michael	Clark	was	named	individually	as	a	defendant	in	the	complaint,	the	complaint	

itself	 identified	 Clark	 as	 “an	 agent	 and	 representative”	 of	 the	 Department	 of	 Environmental	
Protection.		The	Department	is	the	defendant,	and	Clark	will	not	be	discussed	further	in	this	opinion.	

    2		Section	408-A	of	the	Freedom	of	Access	Act	has	since	been	amended	by	legislation	not	affecting	

this	case.		See,	e.g.,	P.L.	2017,	ch.	288,	§	A-1	(effective	July	15,	2017)	(to	be	codified	at	1	M.R.S.	408-A).	
2	

for	records	that	would	be	privileged	against	discovery	or	use	as	evidence	in	the	

course	of	a	court	proceeding.			

      [¶2]		Dubois	and	Fedder	argue	that	they	were	denied	due	process	and	

that	the	court	erred	in	its	interpretation	of	the	work	product	privilege,	see	M.R.	

Civ.	P.	26(b)(3),	and	the	informant	identity	privilege,	see	M.R.	Evid.	509(a),	in	

affirming	the	Department’s	partial	denial	of	their	requests.		We	reject	the	due	

process	challenge	and	affirm	the	court’s	judgment	as	to	the	records	that	were	

withheld	based	on	the	work	product	privilege.		Because	we	cannot	determine	

on	 this	 record	 whether	 records	 identifying	 complainants	 to	 the	 Department	

were	public	records,	we	vacate	the	court’s	judgment	as	to	the	records	that	were	

withheld	based	on	the	informant	identity	privilege	and	remand	to	the	trial	court	

for	further	proceedings.	

                                   I.		BACKGROUND	

      [¶3]		The	facts	are	drawn	from	the	procedural	record	and	the	admitted	

allegations	 in	 Dubois	 and	 Fedder’s	 FOAA	 appeal	 in	 the	 Superior	 Court.	 	 On	

July	6,	2015,	Dubois,	Fedder,	and	others	submitted	a	“very	broad”	FOAA	request	

to	 inspect	 and	 copy	 Department	 records	 related	 to	 a	 composting	 facility	

operated	by	Dubois	Livestock,	Inc.		In	August,	the	Department	produced	certain	

documents	in	response	to	the	request.		Other	documents	were	either	redacted	
                                                                                                          3	

or	 withheld	 by	 the	 Department.	 	 See	 1	 M.R.S.	 §	 408-A(4).	 	 The	 Department	

provided	a	“FOAA	Exceptions	Log”	in	which	it	gave	its	reasoning	for	withholding	

or	redacting	information	from	each	document.		As	relevant	to	this	appeal,	the	

Department	 based	 its	 refusal	 to	 allow	 Dubois	 and	 Fedder	 to	 inspect	 or	 copy	

certain	 records	 on	 the	 work	 product	 and	 informant	 identity	 privileges.	 	 See	

1	M.R.S.	§	402(3)(B);	M.R.	Civ.	P.	26(b)(3);	M.R.	Evid.	509(a).			

        [¶4]	 	 On	 September	 24,	 2015,	 Dubois	 and	 Fedder	 appealed	 to	 the	

Superior	Court	from	the	Department’s	partial	refusal	to	permit	inspection	or	

copying	of	records.		See	1	M.R.S.	§	409(1)	(2014);3	M.R.	Civ.	P.	80B;	see	also	Colby	

v.	York	Cty.	Comm’rs,	442	A.2d	544,	547-48	(Me.	1982).		On	December	18,	2015,	

the	court	held	an	unrecorded	status	conference	during	which,	it	appears,	the	

parties	agreed	to	a	scheduling	order,	which	the	Department	was	asked	to	draft.		

On	 January	 21,	 2016,	 the	 court	 issued	 a	 scheduling	 order	 that	 required	 the	

Department	to	file	with	the	court	(1)	all	the	redacted	and	withheld	documents	

for	 the	 court’s	 in	 camera	 inspection,	 (2)	 any	 revisions	 to	 the	 initial	 FOAA	

Exceptions	Log,	and	(3)	an	affidavit	supporting	the	Department’s	position	on	

the	 redaction	 and	 withholding	 of	 the	 disputed	 documents.	 	 The	 order	 was	


   3		Section	409(1)	of	FOAA	was	amended	to	alter	the	procedure	on	an	appeal	to	the	Superior	Court	

by	legislation	that	took	effect	on	October	15,	2015.		P.L.	2015,	ch.	249,	§	2	(codified	at	1	M.R.S.	§	409(1)	
(2016)).	
4	

issued	over	Dubois	and	Fedder’s	due	process	objection	to	the	solicitation	of	an	

affidavit	 from	 the	 Department.	 	 After	 the	 Department	 filed	 the	 documents,	

Dubois	and	Fedder	filed	a	motion	to	strike	the	affidavit	as	hearsay.	

         [¶5]	 	 In	 its	 judgment	 entered	 on	 May	 18,	 2016,	 the	 court	 denied	 the	

motion	 to	 strike	 the	 affidavit,	 relying	 on	 the	 rules	 for	 affidavits	 presented	 in	

support	 of	 summary	 judgment	 motions,	 see	 M.R.	 Civ.	 P.	 56,	 and	 affirmed	 the	

Department’s	 withholding	 of	 documents	 pursuant	 to	 the	 work	 product	 and	

informant	identity	privileges.		The	court	also	affirmed	the	Department’s	refusal	

to	 permit	 the	 inspection	 or	 copying	 of	 confidential	 personnel	 records,	 but	 it	

ordered	 the	 disclosure	 of	 certain	 documents	 within	 the	 scope	 of	 the	 FOAA	

request	 that	 the	 Department	 had	 withheld	 because	 the	 Department	 deemed	

them	not	relevant	to	the	request.			

         [¶6]	 	 Dubois	 and	 Fedder	 filed	 a	 timely	 notice	 of	 appeal.	 	 See	 14	 M.R.S.	

§	1851	(2016);	M.R.	Civ.	P	80B(n);	M.R.	App.	P.	2(b)(3)	(Tower	2016).4			




     4		The	Maine	Rules	of	Appellate	Procedure	have	been	restyled	effective	for	appeals	commenced	on	

or	after	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
                                                                                     5	

                                  II.		DISCUSSION	

A.	    Due	Process	and	Trial	De	Novo	

	      [¶7]	 	 Dubois	 and	 Fedder	 first	 argue	 that	 the	 court’s	 in	 camera	

consideration	 of	 the	 disputed	 records	 and	 the	 Department’s	 affidavit	 denied	

them	due	process	because	they	were	“denied	the	opportunity	to	confront”	the	

information	reviewed	by	the	court.		We	review	alleged	due	process	errors	de	

novo.		Friends	of	Maine’s	Mountains	v.	Bd.	of	Envtl.	Prot.,	2013	ME	25,	¶	11,	61	

A.3d	689.	

       [¶8]	 	 We	 begin	 by	 reviewing	 the	 procedure	 for	 a	 FOAA	 appeal	 in	 the	

Superior	Court.		FOAA	provides	that	“within	a	reasonable	time	of	making	[a]	

request”	to	do	so,	“a	person	has	the	right	to	inspect	and	copy	any	public	record.”		

1	M.R.S.	§	408-A.		When	an	agency	declines	or	fails	to	allow	the	inspection	or	

copying	of	a	requested	record,	any	person	aggrieved	by	that	action	may	appeal	

to	the	Superior	Court.		1	M.R.S.	§	409(1).		If	the	court	determines	on	the	appeal	

that	 the	 agency	 has	 failed	 to	 demonstrate	 “just	 and	 proper	 cause”	 for	

withholding	records,	“the	court	shall	enter	an	order	for	disclosure.”		Id.;	see	Preti	

Flaherty	Beliveau	&	Pachios	LLP	v.	State	Tax	Assessor,	2014	ME	6,	¶	10,	86	A.3d	

30.	
6	

      [¶9]		The	court’s	consideration	of	the	records	withheld	will	generally	be	

accomplished	by	an	in	camera	review	of	the	disputed	records.		See,	e.g.,	Preti,	

2014	ME	6,	¶	8,	86	A.3d	30.		“In	camera	review	is	a	routine	and	appropriate	

means	for	judicial	review	of	documents	where	disclosure	is	sought.”		Boyle	v.	

Div.	of	Cmty.	Servs.,	592	A.2d	489,	491	(Me.	1991).		Dubois	and	Fedder	argue	

that	the	allegedly	privileged	documents	should	have	been	shared	with	them	so	

that	 they	 could	 formulate	 arguments	 in	 support	 of	 the	 documents’	 release.		

Allowing	 such	 disclosure	 before	 determining	 whether	 the	 documents	 were	

privileged	would	eviscerate	the	protections	provided	by	the	exceptions	within	

FOAA	and	the	law	of	privilege.		See	1	M.R.S.	§	402(3)(B).		It	is	simply	not	possible	

to	maintain	an	alleged	privilege	if	FOAA	plaintiffs	are	permitted	to	access	the	

challenged	records	before	a	court	has	acted	on	the	assertion	of	the	privilege.	

      [¶10]	 	 At	 the	 time	 Dubois	 and	 Fedder	 commenced	 their	 appeal	 in	

September	2015,	FOAA	anticipated	a	“trial	de	novo”	in	the	Superior	Court	for	

the	 adjudication	 of	 any	 contested	 facts.	 	 1	 M.R.S.	 §	 409(1).	 	 Through	 a	 2015	

amendment	 to	 the	 statute,	 effective	 on	 October	 15,	 2015,	 the	 Legislature	

eliminated	the	requirement	for	the	court	to	conduct	a	trial	de	novo.		P.L.	2015,	

ch.	249,	§	2	(effective	Oct.	15,	2015).		The	statute	now	requires	instead	that	the	

court	 conduct	 a	 “review,	 with	 taking	 of	 testimony	 and	 other	 evidence	 as	
                                                                                        7	

determined	necessary.”		1	M.R.S.	§	409(1)	(2016).		Thus,	in	FOAA	appeals	filed	

after	October	15,	2015,	the	court	has	the	discretion	to	determine	the	process	

necessary	for	the	resolution	of	disputed	facts,	giving	due	consideration	to	the	

efficacy,	costs,	and	time	required	for	each	method	of	presentation	of	evidence.	

      [¶11]	 	 At	 the	 time	 Dubois	 and	 Fedder	 filed	 their	 appeal	 in	 the	 matter	

before	us,	however,	the	statute	had	not	been	changed	to	create	the	improved	

evidentiary	 process.	 	 The	 Superior	 Court	 was	 the	 “forum	 of	 origin	 for	 a	

determination	 of	 both	 facts	 and	 law”	 and	 did	 not	 “function	 in	 an	 appellate	

capacity,”	and	each	party	was	entitled	to	offer	relevant	evidence.		Underwood	v.	

City	 of	 Presque	 Isle,	 1998	 ME	 166,	 ¶	 22,	 715	 A.2d	 148	 (holding	 that	 M.R.	

Civ.	P.	80B(d)’s	requirement	that	a	party	move	for	a	trial	of	the	facts	did	not	

apply	to	a	FOAA	appeal	for	which	a	trial	de	novo	was	provided);	see	1	M.R.S.	

§	409(1)	(2014).	

      [¶12]	 	 In	 the	 matter	 before	 us,	 therefore,	 the	 parties	 were	 entitled	 to	

present	evidence	regarding	any	item	of	factual	dispute	relevant	to	whether	the	

records	that	the	Department	withheld	from	its	response	to	the	FOAA	request	

were	 excepted	 from	 the	 definition	 of	 public	 records.	 	 See	 1	 M.R.S.	 §	 409(1)	

(2014);	Underwood,	1998	ME	166,	¶	22,	715	A.2d	148.		The	court	invited	and	

received	evidence	from	the	Department	on	that	issue	in	the	form	of	an	affidavit.		
8	

Dubois	 and	 Fedder	 did	 not,	 however,	 have	 the	 opportunity	 to	 challenge	 the	

Department’s	 factual	 assertions	 through	 cross-examination;	 nor	 were	 they	

invited	 to	 present	 responsive	 evidence.	 	 The	 question	 before	 us	 is	 whether	

Dubois	and	Fedder	have	identified	any	disputed	factual	issues	necessitating	a	

trial	for	the	court	to	decide	whether	the	withheld	documents	are	public	records	

that	must	be	disclosed.	

B.	    Privileges	and	Public	Records	

       [¶13]	 	 Dubois	 and	 Fedder	 challenge	 the	 court’s	 determination	 that	 the	

records	withheld	by	the	Department	would	be	protected	by	the	work	product	

and	informant	identity	privileges	and	were	therefore	not	public	records.		We	

review	legal	issues	regarding	the	nature	and	scope	of	the	privileges	de	novo,	

and	 any	 underlying	 factual	 findings	 for	 clear	 error.	 	 See	 Harris	 Mgmt.,	 Inc.	 v.	

Coulombe,	2016	ME	166,	¶	12,	151	A.3d	7.	

       [¶14]	 	 FOAA	 excepts	 from	 the	 definition	 of	 “public	 records”	 “[r]ecords	

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)(B).		Such	records	need	not	be	made	available	for	inspection	

or	copying	in	response	to	a	FOAA	request.		1	M.R.S.	§	408-A.	
                                                                                    9	

	     1.	    Work	Product	Privilege	

	     [¶15]		Dubois	and	Fedder	contend	that	the	work	product	privilege,	see	

M.R.	Civ.	P.	26(b)(3),	would	not	apply	to	the	withheld	documents	because	the	

documents	were	not	created	in	anticipation	of	litigation.			

      [¶16]		The	work	product	privilege	prevents	a	party	from	being	required	

to	disclose	documents	“created	because	of	the	party’s	subjective	anticipation	of	

future	litigation.”		Springfield	Terminal	Ry.	Co.	v.	Dep’t	of	Transp.,	2000	ME	126,	

¶	16,	754	A.2d	353.		For	the	privilege	to	apply,	the	party’s	subjective	anticipation	

of	 litigation	 “must	 also	 be	 objectively	 reasonable.”	 	 Id.	 (quotation	 marks	

omitted).	 	 The	 anticipation	 of	 litigation	 may	 be	 found	 to	 be	 objectively	

reasonable	when	the	party	“faces	an	actual	claim	or	a	potential	claim	following	

an	actual	event	or	series	of	events	that	reasonably	could	result	in	litigation.”		Id.	

¶	19	(quotation	marks	omitted).	

      [¶17]	 	 Here,	 the	 Department	 argued	 that	 the	 work	 product	 privilege	

applied	to	(1)	drafts	of	an	administrative	search	warrant;	(2)	drafts	of	a	warrant	

application;	and	(3)	emails	concerning	the	drafting	process	and	a	strategy	for	

executing	the	warrant,	if	granted.		Dubois	and	Fedder	argue	that	the	described	

documents	cannot	be	shown	to	have	been	prepared	in	anticipation	of	litigation.		

It	 is	 plain	 on	 the	 face	 of	 these	 documents	 that	 they	 were	 prepared	 in	
10	

anticipation	of	regulatory	enforcement	or	other	compliance-related	litigation,	

however,	and	Dubois	and	Fedder	present	no	plausible	argument	that	evidence	

of	any	other	facts	would	have	informed	the	court	on	the	question.		Thus,	the	

court	did	not	err	in	determining	that	the	work	product	privilege	would	apply,	

and	Dubois	and	Fedder	have	not	shown	a	deprivation	of	due	process	or	other	

legal	error.	

	     2.	       Informant	Identity	Privilege	and	Statutory	Confidentiality	

      [¶18]		Dubois	and	Fedder	also	challenge	the	court’s	determination	that	

records	 containing	 the	 identities	 of	 people	 who	 made	 complaints	 to	 the	

Department	about	odors	emitted	from	the	Dubois	Livestock	property	are	not	

public	 records.	 	 The	 Department	 asserts	 that	 the	 records	 containing	

complainants’	 identities	 would	 be	 “within	 the	 scope	 of	 a	 privilege	 against	

discovery	 or	 use	 as	 evidence”	 if	 they	 were	 sought	 in	 a	 court	 proceeding,	 see	

1	 M.R.S.	 §	 402(3)(B),	 because	 the	 complainants	 were	 “informants”	 and	

therefore	the	informant	identity	privilege,	see	M.R.	Evid.	509(a),	would	apply.		

Dubois	 and	 Fedder	 argue	 that	 complainants	 to	 the	 Department	 are	 not	

informants	within	the	meaning	of	Rule	509(a).			

      [¶19]	 	 In	 the	 matter	 before	 us,	 the	 Department	 relied	 solely	 on	 the	

informant	identity	privilege	in	asserting	that	the	identities	of	the	complainants	
                                                                                                            11	

were	not	public	records.		See	1	M.R.S.	§	402(3)(B).		The	privilege	at	issue	here	

is	addressed	in	Maine	Rule	of	Evidence	509(a),	pursuant	to	which	the	State	“has	

a	privilege	to	refuse	to	disclose	the	identity	of	an	informant.	.	.	.	[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	.	.	.	.”	

        [¶20]		In	addition,	FOAA	excepts	from	the	definition	of	“public	records”	

“[r]ecords	 that	 have	 been	 designated	 confidential	 by	 statute.”	 	 1	 M.R.S.	

§	402(3)(A)	(2016).		Pursuant	to	Maine’s	Intelligence	and	Investigative	Record	

Information	 Act,	 “a	 record	 that	 is	 or	 contains	 intelligence	 and	 investigative	

record	 information	 is	 confidential	 and	 may	 not	 be	 disseminated	 by	 a	 Maine	

criminal	justice	agency	.	.	.	if	there	is	a	reasonable	possibility	that	.	.	.	inspection	

of	 the	 record	 would	 .	 .	 .	 [d]isclose	 the	 identity	 of	 a	 confidential	 source.”5		

16	M.R.S.	§	804(4)	(2016).	

        [¶21]	 	 The	 statute	 defines	 “intelligence	 and	 investigative	 record	

information”	 as	 “information	 of	 record	 collected	 by	 or	 prepared	 by	 or	 at	 the	




   5		Although	the	Department	did	not	assert	statutory	confidentiality	as	constituting	“just	and	proper	

cause”	 for	 withholding	 records,	 1	 M.R.S.	 §	 409(1)	 (2014),	 we	 address	 it	 here	 because	 the	 statute	
affirmatively	 prohibits	 the	 disclosure	 of	 information	 protected	 by	 the	 statute,	 16	 M.R.S.	 §	 804(4)	
(2016);	see	also	1	M.R.S.	§	408-A	(2014).	
12	

direction	of	a	criminal	justice	agency	.	.	.	while	performing	the	administration	of	

criminal	justice.”		16	M.R.S.	§	803(7)	(2016).		The	“administration	of	criminal	

justice”	 is	 defined	 as	 “activities	 relating	 to	 the	 anticipation,	 prevention,	

detection,	monitoring	or	investigation	of	known,	suspected	or	possible	crimes,”	

16	 M.R.S.	 §	 803(2)	 (2016),	 and	 a	 “criminal	 justice	 agency”	 is	 defined	 as	 a	

“government	 agency	 or	 any	 subunit	 of	 a	 government	 agency	 at	 any	

governmental	 level	 that	 performs	 the	 administration	 of	 criminal	 justice	

pursuant	to	a	statute	or	executive	order,”	16	M.R.S.	§	803(4)	(2016).	

      [¶22]		Relative	to	these	statutory	definitions,	the	statutes	governing	the	

Department	of	Environmental	Protection	provide	that	the	intentional,	knowing,	

reckless,	 or	 criminally	 negligent	 violation	 of	 any	 “law	 administered	 by	 the	

department,	including,	without	limitation,	a	violation	of	the	terms	or	conditions	

of	 an	 order,	 rule,	 license,	 permit,	 approval	 or	 decision	 of	 the	 board	 or	

commissioner	.	.	.	[is]	a	Class	E	crime.”		38	M.R.S.	§	349(1)	(2016)	(emphasis	

added).		The	Department	commissioner	may,	“[w]henever	it	appears	.	.	.	,	after	

investigation,	that	there	is	or	has	been	a	violation	of	[Title	38],	of	rules	adopted	

under	[Title	38]	or	of	the	terms	or	conditions	of	a	license,	permit	or	order	issued	

by	 the	 board	 or	 the	 commissioner,	 .	 .	 .	 initiate	 an	 enforcement	 action	
                                                                                                              13	

by	 .	 .	 .	 [r]eferring	 the	 violation	 to	 the	 Attorney	 General	 for	 civil	 or	 criminal	

prosecution.”		38	M.R.S.	§	347-A(1)(A)(2)	(2016)	(emphasis	added).	

        [¶23]	 	 Given	 the	 nature	 of	 the	 records	 on	 appeal,	 however,	 we	 cannot	

determine	 whether	 either	 the	 informant	 identity	 privilege	 or	 the	 statutory	

provision	 for	 the	 confidentiality	 of	 investigative	 records	 would	 shield	 the	

records	 in	 question.	 	 It	 is	 not	 clear	 from	 the	 face	 of	 the	 records	 that	 were	

withheld	 based	 on	 the	 Department’s	 assertion	 of	 the	 informant	 identity	

privilege	that	the	privilege	would	apply;	nor	is	there	evidence	in	the	record	that	

addresses	 the	 court’s	 implicit	 findings	 that	 the	 Department	 personnel	 who	

received	 the	 information	 from	 the	 complainants	 were	 “law	 enforcement	

officer[s]”6	or	that	they	were	“conducting	an	investigation”	within	the	meaning	

of	M.R.	Evid.	509(a)(2)(A).			

        [¶24]		Similarly,	because	the	Department	did	not	assert	the	applicability	

of	 statutory	 confidentiality	 for	 investigative	 records,	 the	 trial	 court	 did	 not	



    6		The	term	“law	enforcement	officer”	is	not	defined	by	the	Maine	Rules	of	Evidence.		It	is,	however,	

variously	defined	in	multiple	statutes.		In	most	of	those	statutes,	a	law	enforcement	officer	is	defined	
as	a	person	who,	by	virtue	of	public	employment,	is	vested	by	law	with	a	duty	to	arrest	offenders,	
prosecute	offenders,	or	maintain	public	order,	or	who	has	the	authority	to	serve	criminal	process.		
5	M.R.S.	§	286-M(2)(A)	(2016);	17-A	M.R.S.	§	2(17)	(2016);	23	M.R.S.	§	1964(5-B)	(2016);	24-A	M.R.S.	
§	 2174-B(1)(A)	 (2016);	 25	 M.R.S.	 §	 2801-A(5)	 (2016);	 28-A	 M.R.S.	 §	 2(13-A)	 (2016);	 29-A	 M.R.S.	
§	101(30)	(2016);	35-A	M.R.S.	§	7507(1)(C)	(2016).		Statutes	relating	to	animal	welfare	provide	a	
more	 expansive	 definition	 of	 the	 term	 “law	 enforcement	 officer,”	 including	 within	 that	 definition	
anyone	 with	 the	 duty	 to	 “enforce	 any	 law	 of	 this	 State	 establishing	 a	 civil	 violation.”	 	 7	 M.R.S.	
§	3907(18)	(2016);	17	M.R.S.	§	1011(18)	(2016).	
14	

consider	 that	 issue	 and	 there	 is	 consequently	 no	 competent	 record	 evidence	

addressing	whether	the	Intelligence	and	Investigative	Record	Information	Act	

applies	to	protect	the	identities	of	the	complainants	as	confidential	sources.		See	

16	M.R.S.	§	804(4).			

      [¶25]	 	 Because	 there	 were	 factual	 disputes	 regarding	 several	 findings	

necessary	 to	 a	 determination	 that	 there	 was	 “just	 and	 proper	 cause”	 for	 the	

Department’s	withholding	of	records	containing	the	identities	of	complainants,	

see	1	M.R.S.	§	408-A,	we	must	remand	to	the	trial	court	to	receive	evidence	from	

the	 parties	 relevant	 to	 whether	 the	 Department	 was	 conducting	 an	

investigation	and	whether	its	agents	were	acting	as	law	enforcement	officers	in	

this	particular	matter.		After	hearing	evidence,	the	court	will	be	able	to	make	

factual	 findings	 and	 determine	 whether	 the	 records	 are	 excepted	 from	 the	

definition	of	public	records.		See	Underwood,	1998	ME	166,	¶	22,	715	A.2d	148.			

      The	entry	is:	

                    Judgment	 affirmed	 as	 to	 records	 that	 were	
                    withheld	 based	 on	 work	 product	 privilege.		
                    Judgment	 vacated	 as	 to	 records	 that	 were	
                    withheld	based	on	informant	identity	privilege.		
                    Remanded	 to	 the	 Superior	 Court	 to	 take	
                    evidence	and	make	findings	on	the	applicability	
                    of	exceptions	to	the	definition	of	“public	records”	
                    for	complainant	identities.	
                    	
	     	      	      	     	     	
                                                                                 15	

Marcel	Dubois	and	Sol	Fedder,	appellants	pro	se	
	
Janet	T.	Mills,	Attorney	General,	Katherine	E.	Tierney,	Asst.	Atty.	Gen.,	and	Scott	
W.	Boak,	Asst.	Atty.	Gen.,	Office	of	the	Attorney	General,	Augusta,	for	appellee	
Department	of	Environmental	Protection	
	
	
York	County	Superior	Court	docket	number	AP-15-28	
FOR	CLERK	REFERENCE	ONLY	
