Last month the Maine Supreme Judicial Court decided a Freedom of Access case involving the exceptions for the work product privilege and the informant identity privilege. Dubois v. Department of Environmental Protection, 2017 ME 224. Take-aways for Maine public officials dealing with Freedom of Access Act requests are: (1) the importance of producing a privilege log in response to requests where information is withheld; (2) a reminder about the scope of the work product privilege as a Freedom of Access exception; and (3) the Court’s note in paragraph 10 of the decision, that a 2015 statutory change expedites the Superior Court review process, changing the judicial review from a trial de novo to a “review, with taking of testimony and other evidence as determined necessary.” (FMI including legislative documents, see here) This is referred to by the court as an “improved evidentiary process” that will hopefully expedite future the resolution of future court disputes over Freedom of Access requests.
The Law Court made quick work of the search warrant related records including draft applications and emails regarding the drafting of the search warrant and a strategy for executing it as being prepared in anticipation of litigation “on their face”. As such, the Law Court held that the DEP had an objectively reasonable anticipation of litigation and the work product privilege, and Rule 26(b)(3) of the Maine Rules of Civil Procedure entitled the Department to withhold these materials from a Freedom of Access response.
The case also contains an interesting discussion of the Maine Intelligence and Investigative Record Information Act and its interplay with FOAA requests, though the Court lacked a sufficient record from the Superior Court proceedings to determine whether the informant records qualified for FOAA exemption, and remanded the case to the York County Superior Court for further proceedings on that point.
For further background information on this facility, including its prior role before the Law Court, see here: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2014/14me122du.pdf; http://post.mainelymediallc.com/news/2014-09-12/Front_Page/Compost_issue_going_to_Maine_court.html