Opinion
Civil Action AP-15-0028
08-20-2018
MARCEL DUBOIS, and SOL FEDDER, Plaintiffs, v. MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al, Defendants.
ATTORNEY FOR APPELLANTS; EDWARD S, MACCOLL, ESQ. THOMPSON MACCOLL & BASS ATTORNEYS FOR APPELLEES: SCOTT BOAK, AAG KATHERINE TIERNEY, AAG
ATTORNEY FOR APPELLANTS; EDWARD S, MACCOLL, ESQ. THOMPSON MACCOLL & BASS
ATTORNEYS FOR APPELLEES: SCOTT BOAK, AAG KATHERINE TIERNEY, AAG
JUDGMENT
John O'Neil, Jr. Justice
I. BACKGROUND
Plaintiffs Marcel Dubois and Sol Fedder appeal the Department of Environmental Protection's (the "DEP's") partial denial of their Freedom of Access Act (FOAA) request, pursuant to 1 M.R.S. § 408-A(2014), for public records related to Dubois Livestock, Inc. ("Dubois Livestock"), Although the DEP provided many of the requested documents, it denied the FOAA request as it pertained to the identity of individuals who submitted complaints to the DEP concerning Dubois Livestock. The DEP cited the exception from the definition of public records in 1 M.R.S. § 402(3)(B) (2016) for records that would be privileged against discovery or use as evidence in the course of a court proceeding in support of its denial, specifically claiming that the documents are privileged under 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).
Plaintiffs appealed the DEP's partial denial of their FOAA request on September 24, 2015. This court issued a judgment in the DEP's favor on May 18, 2016, relying on certain affidavits submitted by the DEP to conclude that the requested information was subject to both the work product and informant identity privileges.
Plaintiffs appealed this court's decision to the Law Court, who affirmed the portion of the court's judgment relating to documents covered by the work product privilege, but vacated the court's decision in regards to redactions of informant identities, remanding the matter to this court to take further evidence and make findings concerning whether the DEP was conducting an investigation of Dubois Livestock and whether the DEP's agents were acting as law enforcement officers so that the informant identity privilege in M.R. Evid. 509(a) would attach. Dubois v. Dep't of Envtl Prot., 2017 ME 224, ¶ 25, 174 A.3d 314.
On June 4, 2018, this court held a hearing pursuant to the Law Court's direction, hearing testimony from DEP witnesses Carla Hopkins and Michael Clark and receiving exhibits. Following this hearing, the parties submitted memoranda in support of their respective arguments.
II. FINDINGS OF FACT
Based on the evidence presented, the court makes the following findings of fact related to whether the DEP was conducting an investigation of Dubois Livestock and whether the DEP was acting as a Law Enforcement Agency pursuant to M.R. Evid. 509(a).
The DEP is a State agency charged with preserving Maine's environment by enforcing State regulations concerning air, water, and land pollution as well as other environmental risks. In order to perform its functions, the DEP conducts investigations into potential violations of DEP laws, rules, and licenses. Public complaints often serve as the genesis for DEP investigations. Complainants often wish to remain anonymous for a litany of reasons, including fear of retaliation.
If the DEP finds a violation, it has a variety of tools at its disposal to enforce the rule of law, such as emergency and administrative consent orders and the ability to refer the matter to the Attorney General for civil or criminal prosecution. Certain DEP employees may also represent the DEP in court.
Dubois Livestock has been at all times relevant to this appeal a Maine corporation operating an agricultural composting facility in Arundel. Dubois Livestock has a license to perform this activity issued and regulated by the DEP. (Defs.' Exs. 1-3.)
After receiving complaints concerning odors emanating from Dubois Livestock's facility in late 2014, the DEP began investigating Dubois Livestock and its compliance with its license and other State laws and regulations. The DEP took down the names of complainants, which the plaintiffs now request be disclosed.
In May of 2015, the DEP, in conjunction with the Department of Agriculture and Forestiy ("DACF") determined that Dubois Livestock had spread several fields close to their composting facility with material that contained clam shells, lobster claws, and rubber bands. (Defs.' Ex. 5.) The presence of this material indicated to DEP agents that Dubois Livestock was not properly screening its compost to remove solid waste in violation of its license. (Defs.' Ex. 3.) Additionally, the fields in question appeared to be the source of the odors causing the complaints.
The subject fields were owned by the Randrick Trust, an entity affiliated with Dubois Livestock.
On May 8, 2015, Agent Clark notified Dubois that the DEP's analysis indicated that solid waste was present in the materials spread on the subject fields, constituting unpermitted disposal of solid waste. (Defs.' Ex. 5.) Clark then requested Dubois Livestock to provide information confirming that the material that it had spread complied with the level of stability required by its license. Dubois Livestock did not provide the requested information and informed the DEP that it would file criminal trespass charges against Clark if he returned to the property without permission. (Defs.' Ex. 6.)
As a condition to its license, Dubois Livestock is required to submit reports and other materials requested by 11k DEP that insures its compliance with the terms of its license, (Ex. 3.)
Despite this warning, the DEP inspected the Facility on June 24, 2015. During this inspection, the DEP discovered numerous issues with the Dubois Livestock's composting operation, including insufficient compost pile temperatures and ineffective vegetative buffer to the facility's leachate collection system, both of which can contribute to excessive odors. (Pls..' Exs. 2, 10.)
Following the discovery of these issues, the DEP provided Dubois Livestock with an inspection report that outlined the violations, requested information, and required corrective action, (Defs.' Ex. 8.) Dubois Livestock again did not comply with the DEP's directives.
Throughout 2015 and 2016, the DEP continued to receive and investigate odor complaints concerning Dubois Livestock. (Defs.' Ex. 9.) On April 8, 2016, Clark sent an email to Dubois Livestock notifying it that he intended to conduct another inspection of its facility. (Defs.' Ex. 10.) Dubois Livestock responded by stating that it would not allow further inspection and that it would not provide further requested information.
Nonetheless, the DEP again inspected Dubois Livestock on May 17, 2016 in response to numerous continuing odor complaints. (Defs.' Ex. 13.) Again, the DEP recorded low pile temperatures and an ineffective leachate buffer. (Defs.' Ex. 13.) The DEP further noted that the leachate detention basin was emitting a discharge into a nearby stream. (Defs/ Ex. 13.)
The DEP conducted a third inspection on June 29, 2016 in order to examine Dubois Livestock's records. Dubois Livestock, however, again denied the DEP access. (Defs.' Ex. 13.)
Given the observed issues present at the Dubois Livestock facility, the DEP expanded its investigation beyond solid waste to also explore potential water quality concerns. On November 4, 2016, members of the DEP Division of Water Quality Management accompanied Clark to Dubois Livestock in order to conduct water sampling. (Defs.' Ex. 14.) The DEP observed, and confirmed through laboratory analysis, that Dubois Livestock's leachate basin was emitting pollutants into the nearby stream. (Defs.' Ex. 14.)
The DEP conducted further water quality monitoring on May 18, 2017, which again indicated that the facility continued to pollute the stream. (Defs.' Ex. 14.) In April of 2017, the DEP also investigated Dubois Livestock's possible receipt of liquid waste from an out-of-state business in violation of its license. (Defs.5 Ex. 13.)
Ultimately, the DEP issued a Notice of Violation to Dubois Livestock on June 26, 2017, citing a number of license and regulatory infractions. (Defs.' Ex. 13.) The DEP issued a second Notice of Violation on August 31, 2017 concerning water quality violations. (Defs.' Ex. 14.) The DEP also continued to received odor complaints between June and September of 2017, leading to the issuance of third Notice of Violation on October 13 2017. (Defs.' Ex. 15.) Ms. Hopkins testified that the DEP's investigation is ongoing as of the date of this court's hearing on remand and that Dubois Livestock has yet to comply with the DEP's Notices of Violation.
Plaintiff Marcel Dubois cites that certain testimony concerning the DEP's cooperation with the Town of Arundel in relation to a consent decree entered into between Dubois Livestock, plaintiffs, and the Town. Dubois argues that the DEP and the Town impermissibly shared information in order to shut down Dubois Livestock's composting operation. This issue is the subject of several other companion cases and appeals is not relevant to the issue of whether the identity of informants is confidential in this case.
III. STANDARD OF REVIEW
Before this court, it is the agency's burden to show some exception to FOAA applies to justify the denial of a request for public records. Mainetoday Media, Inc. v. State, 2013 ME 100, ¶ 9 n.8, 82 A.3d 104. Although subsequently amended, FOAA required this court conduct a trial de novo for the adjudication of any contested facts at the time plaintiffs filed the instant appeal. Dubois v. Dep't of Envtl Prot., 2017 ME 224, ¶ 10, 174 A.3d 314. After such a trial de novo the court must determine whether the agency has demonstrated "just and proper cause" for withholding records, and, if they have failed to do so, "the court shall enter an order for disclosure." Id. ¶ 8 (citations omitted) (quotation marks omitted).
IV. DISCUSSION
a. Whether the Requested Informant Information Was Properly Withheld
Pursuant to Maine's FOAA, "Except as otherwise provided by statute, a person has the right to inspect and copy any public record in accordance with this section within a reasonable time of making the request to inspect or copy the public record." 1 M.R.S.A. § 408-A. A "public record" is defined as:
[W]ritten, 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.A. § 402(3). FOAA is to be "liberally construed and applied to promote its underlying purposes and policies as contained in the declaration of legislative intent." 1 M.R.S.A. § 401.
The DEP argues that the requested informant information is privileged under the informant identity privilege of M.R. Evid. 509(a) and also pursuant to Maine's Intelligence and Investigative Record Information Act ("IIRIA"), 16 MR.S. A. §§ 801-809.
i. M.R. Evid. 509(a) Informant Identity Privilege
As noted above, FOAA excludes from the definition of "public records" any documents 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.A. § 402(3). One such privilege is the informant identity privilege found in Maine Rule of Evidence 509(a)(1). Pursuant to this Rule, a state agency "has a privilege to refuse to disclose the identity of an informant." M.R. Evid. 509(a)(1); see Dubois v. Dep`t of Agric, 2018 ME 68, ¶ 18, 185 A.3d 743. This rule recognizes "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" is defined as "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). Further, Rule 509 attaches "to state investigations and actions relating to civil violations of Maine law, just as much as in criminal cases." Dubois v. Dep`t of Agric, 2018 ME 68, ¶ 19, 185 A.3d 743.
Rule 509 does not expressly define "law enforcement officer." For this reason, the Law Court remanded this case in order for this court to determine whether DEP officials were acting as law enforcement officers in this case. Dubois v. Dep`t of Envtl, Prot, 2017 ME 224, ¶ 25, 174 A, 3d 314.
Pursuant to Statute, the DEP's purpose is to "prevent, abate and control the pollution of the air, water and land and preserve, improve and prevent diminution of the natural environment of the State." 38 M.R.S.A. § 341-A(1) (2016). The record establishes that the DEP conducts investigations in order to accomplish this stated goal.
In addition to conducting investigations, the DEP also possesses tools to gain compliance from those who violate its regulations. Specifically, "[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," the DEP's commissioner may initiate an enforcement action by:
1) Resolving the violation through an administrative consent agreement pursuant to subsection 4, signed by the violator and approved by the commissioner and the Attorney General;
2) Referring the violation to the Attorney General for civil or criminal prosecution;
3) Scheduling and holding an enforcement hearing on the alleged violation pursuant to subsection 2; or
4) With the prior approval of the Attorney General, commencing a civil action ...38 M.R.S.A. § 347-A(1)(A) (2016). The Department may also order those "causing or contributing to a hazard" that is "creating or likely to create a substantial and immediate danger to public health or safety or to the environment" to take necessary corrective action. 38 M.R.S.A. § 347-A(3).
As also further noted by the Law Court, "[T]he statutes governing the [DEP] 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.''" Dubois v. Dep't of Envtl Prot, 2017 ME 224, ¶ 22, 174 A.3d 314 (quoting 38 M.R.S. § 349(1) (2016)) (emphasis in original).
The Law Court recently examined whether DACF agents were acting as "law enforcement officers" in Dubois v. Dep't of Agric, 2018 ME 68, 185 A.3d 743, a case also brought by plaintiffs involving an identical request for the identity of complainants from the DACF. The Law Court analyzed the Animal Welfare Act, which the DACF enforces, and noted that the Act defined "law enforcement officer" as "a public employee who has a legal duty to 'enforce any law of this State establishing a civil violation.'" Id. ¶ 19 (quoting 7 M.R.S. § 3907(18) (2017)). Given this broad definition, the Court concluded that DACF officials who investigated Dubois Livestock were "law enforcement officers" under Rule 509. Id. Pointedly, the Law Court reasoned:
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 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.Id. ¶ 20.
While there is no pertinent statutory pertinent statutory definition of "law enforcement officer" such as that in the Animal Welfare Act, it is apparent that DEP officials were likewise tasked with enforcing the laws and regulations of this State. Despite Plaintiff Marcel Dubois's insistence that an officer needs authority to arrest, prosecute, maintain public order, or serve criminal process in order to be "law enforcement officer" under Rule 509, the Law Court's decision in regards to the DACF makes it clear that such authority is not necessary.
Similar to the DACF, the DEP received complaints with information about odors emanating from Dubois Livestock's composting operation. The DEP, through Mr. Clark, Ms. Hopkins, and other employees, initiated and conducted an investigation based on these complaints in order to enforce DEP regulations and State laws, performing multiple inspections of the Dubois Livestock facility, requesting information, testing water samples, and otherwise investigating possible violations. This investigation was coordinated with a DACF investigation for matters within the DACF's separate regulatory authority. Dubois v. Dep't of Agric, 2018 ME 68, ¶ 3, 185 A.3d 743. Ultimately, the DEP issued multiple Notices of Violation, the first step in initiating an enforcement action. 38 M.R.S.A. § 347-A(1)(B).
The record clearly establishes that the DEP was conducting an investigation into Dubois Livestock and that the complaints were received in the context of that investigation. Given the DEP's authority to enforce its rules and regulations and the steps taken for the DEP to do so here, it is also clear that DEP officials were acting as "law enforcement officers" while performing their duties, Finally, the complainants 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).
Plaintiff Marcel Dubois argues that there is no investigation ongoing at the time the complaints were made because the DEP failed to demonstrate when an official investigation began. However, the record shows that complaints can j serve as the genesis of many investigations, including the one of Dubois Livestock conducted here. Because the first step in initiating an investigation may include the receipt of a complaint, the complaints were made in the context of an investigation for the purposes of Rule 509.
Plaintiff Fedder attempts to distinguish between the "project manager" position and DEP agents who perform \ enforcement functions. Specifically, he urges allowing DEP agents to both be a project manager as well as enforce DEP regulations "offends and undermines the duties, obligations and purpose of the 'project manager' status of DEP agents!" (Fedder Br. 3.) The court disagrees with Mr. Fedder's argument. It was established at the hearing that project managers have substantial duties related to enforcing DEP regulations. Their role as liaison with those the Department regulates does not a pose a conflict with such enforcement functions.
Because the DEP was conducting an investigation and its employees were acting as "law enforcement officers," the informant identity privilege of Rule 509(a) applies. Consequently, the requested information is privileged and the DEP has proven that its denial of plaintiffs' request was for "just and proper cause." The denial of plaintiffs' FOAA request as to the identity of DEP informants is hereby affirmed.
ii Whether the Requested Information is Confidential Under the IIRIA
Again, the FOAA exempts from the definition of public records those "that have been designated confidential by statute." 1 M.R.S.A, § 4O2(3)(A). Although the DEP did not originally assert the applicability of the Intelligence and Investigative Record Information Act ("IIRIA"), the Law Court noted its possible application to the instant facts in its decision remanding the matter to this court. Dubois v, Dep't of Envtl Prot, 2017 ME 224, ¶ 24, 174 A.3d 314. In their- post-hearing memorandum, the DEP now wishes to argue that the I1R1A makes the requested information confidential.
Pursuant to the IIRIA:
[A] record that is or contains intelligence and investigative record information is confidential and may not be disseminated by a Maine criminal justice agency to any person or public or private entity if there is a reasonable possibility that public release or inspection of the record would:.. .
3. Constitute an invasion of privacy. Constitute an unwarranted invasion of personal privacy;
4, Disclose confidential source. Disclose the identity of a confidential source;...
8. Endanger law enforcement or others. Endanger the life or physical safety of any individual, including law enforcement personnel;16 M.R, S. § 804 (2016). Intelligence and investigative record information is defined as "information of record collected by or prepared by or at the direction of a criminal justice agency . . . while performing the administration of criminal justice." 16 M, R.S. § 803(7) (2016). A "reasonable possibility .., is synonymous with a 'reasonable likelihood,' and is a lower standard than a preponderance of the evidence." Mainetoday Media, Inc. v. State, 2013 ME 100, *| 27, 82 A.3d 104 (citations omitted).
I. Criminal Justice Agency
For the 11RJA to apply, the DEP, as the agency in possession of the documents to be disclosed, must first establish that it is a "criminal justice agency." 16 MR. S. § 804(4) (2016). The II.RIA defines "criminal justice agency" 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), While discussing the potential application of the IIRIA before remand to tills court, the Law Court noted:
Relative to these statutory definitions [in the IIRIA], 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.K'38 MRS. § 349(1)(2OlG) (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 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).Dubois v. Dep't of Envtl Prot.t 2017 ME 224, ¶ 22, 174 A.3d 314. These provisions indicate that part of the DEP's duties is to investigate possible criminal activity and initiate criminal proceedings by referring the matter to the Attorney General. The statutes also task the DEP with an Important part of the criminal justice process, giving it the authority and the directive to enforce the Slate's criminal laws. Thus, the DEP is a "criminal justice agency17 under the IIRIA.
2. Whether the DEP was Performing the "Administration of Criminal Justice"
Even though the DEP qualifies as a "criminal justice agency," it must have been acting in the "administration of criminal justice" for the IIRIA to attach. 16 M.R.S. § 803(7). The IIRIA defines "administration of criminal justice" as "activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible crimes.'" 16 M.R.S. § 803(2).
The DEP argues that it was involved in the "administration of criminal justice" in this case because it was conducting an investigation which may have led to criminal charges had evidence of criminal conduct emerged. (DEP Br. 11-12.) They further note that Dubois Livestocks violations could be criminal depending on their state of mind. 38 M.R.S. § 349(1).
On the other hand, plaintiff Marcel Dubois emphasizes the fact that the IIRIA provides different definitions for the "administration of criminal justice" and the "administration of civil justice." (Marcel Dubois Br, 5.) The IIRIA defines the "administration of civil justice" as "activities relating to the anticipation, prevention, detection, monitoring or investigation of known, suspected or possible civil violations and prospective and pending civil actions," 16 M.R.S.A. § 803(1).
Mi:. Dubois claims this difference indicates that the investigation can only fall into one of two categories. Further, Mr. Dubois argues, "[T]t is impossible to identify any communication to a public employee that might not, wittingly or otherwise, relate to a 'possible crime.' Virtually every apparent 'civil violation' could possibly be a criminal violation, assuming, for example a fraudulent intent, bad faith or an intent to do bodily harm." (Marcel Dubois Br. 5-6 (emphasis in original)). Thus, Mr. Dubois urges "the difference [between the two definitions] turns on the subjective intent of those conducting the investigation." (Marcel Dubois Br. 6.)
The definition of "administration of criminal justice," however, is extremely broad, encompassing the "anticipation, prevention, detection, monitoring or investigation of known, suspected or possible crimes" 1G M.R.S. § 803(2) (emphasis added). This definition clearly contemplates activities that occur before the opening of an official criminal investigation or enforcement, such as the anticipation, prevention, and detection of possible crimes. Id. Here, the DEP was performing its duties of anticipating, preventing, and detecting possible crimes by receiving complaints and conducting appropriate investigations. The fact that there was not yet a certain determination that criminal action would be brought does not remove the Department's activities from the statutory definition of the "administration of criminal justice."
Because the DEP's investigation of Dubois Livestock could lead to possible criminal charges, the DEP was acting in the "administration of criminal justice1' in this case.
3. Whether1 the Requested Information is Confidential
Because the DEP is "criminal justice agency" that was involved in the "administration of justice" while investigating Dubois Livestock, the requested information will be confidential if it falls into one or more of the categories enumerated in 16 M.RS, § 804. The DEP argues that the identities of the complainants is confidential because their release would: (1) Constitute an unwarranted invasion of personal privacy (16 M.R.S. § 8O4{3}); (2) Disclose the identity of a confidential source (16 M.R.S. § 804(4)); or (3) Endanger the life or physical safety of any individual, including law enforcement personnel (16 M.R.S. § 804(8)).
Although there are few cases discussing these provisions of the IIR1A, the Law Court has used cases interpreting the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as guidance when analyzing Maine's FOAA. Blethen Me, Newspapers, Inc. v. Stats, 2005 ME 56, ¶ 13, 871 A.2d 523 (citation omitted). Similar to the IIR1A, Section 552(b)(7) of the FOIA exempts from public disclosure;
[R]ecords or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, ... or (F) could reasonably be expected to endanger the life or physical safety of any individual.5 U.S.C.S. § 552(b)(7). Because the IIRIA represents Maine's counterpart to Section (b)(7) of the FOIA, the court likewise turns to such cases here to determine whether a reasonable possibility that release of the complainants' identities would fall into one of the categories of the IIRIA specified above.
a. Unwarranted Invasion of Personal Privacy
First, the DEP argues that the disclosure of identity of complainants poses a reasonable possibility of an unwarranted invasion of personal policy. In relation to the similar protection in Section 7((b) of FOIA, the First Circuit has stated that the protection:
guards the privacy interests of a broad range of individuals, including government agents, personnel, confidential sources, and investigatory targets, The exemption also "protects a broad notion of personal privacy, including an individual's interest in avoiding disclosure of personal matters." "This notion of privacy' encompass [es] the individual's control of information concerning his or her person," and when, how, and to what extent information about them is communicated to others."'Moffat v. United States DOJ, 716 F.3d244, 251 (1st Cir. 2013) (citations omitted). The Supreme Court of the United States has also recognized a "privacy interest in keeping personal facts away from the public eye." United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 769 (1989). Additionally, when disclosure would potentially subject informants to "embarrassment or reprisals" from the subject of the complaint, the release of identifying information may be unwarranted "unless a superior public interest is served by disclosure." Alirez v. NLRB, 676 F.2d 423, 427 (10th Cir. 1982).
The Supreme Court of the United States has articulated that a balancing test should be used to determine whether a disclosure of certain information will constitute an unwarranted invasion of personal privacy. Nat`l Archives & Records Admin, v. Favish, 541 U.S. 157, (2004); see also Blethen Me. Newspapers, Inc., 2005 ME 56, ¶ 14, 871 A.2d 523 (accepting this standard in relation to the Criminal History Record Information Act). The court must identify and weigh the applicable private and public interests in order to sufficiently make a determination. Thus, this court will weigh, "(1) the personal privacy interests of the [complainants]; (2) the public interest supporting disclosure of the records; and (3) the balancing of the private and public interests." Blethen Me. Newspapers, Inc., 2005 ME 56, ¶ 14, 871 A.2d 523. In reaching a conclusion, all doubts are resolved in favor of disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 360-62 (1976).
The basic policy of statutes such as FOAA and FOIA is '"full agency disclosure unless information is exempted under clearly delineated statutory language." Id. at 360-361 (citation omitted). Such statutes, "focus[] on the citizens' right to be informed about what their government is up to." Reporters Comm. for Freedom of Press, 489 U.S. at 773 (citation omitted) (internal quotation marks omitted). Although "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose," the purpose is not furthered "by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." Id.; see also Cuccaro v. Sec'y of Labor, 770 F.2d 355, 359 (3d Cir. 1985) ("In the context of an OSHA investigation into possible safety and health violations of an employer, the privacy interest of employees and witnesses who participated in OSHA's investigation outweighs the public's interest in disclosure") (citation omitted). The Supreme Court has noted, "in the typical case in which one private citizen is seeking information about another . . . the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records." Id. Thus, the policy behind disclosure is not necessarily furthered through the identification, of those who have submitted complaints.
In this case, the only information that plaintiffs seek is the identity of those who submitted complaints against Dubois Livestock, to the DEP. This information does not provide insight into the DEP's conduct into the investigation, only personal information of individuals. These individuals could be subjected to harassment, reprisal, and/or embarrassment should their identities be disclosed. Weighing the individuals' right to privacy against plaiutiffs" interest in identifying the complainants, the court concludes that there is a reasonable possibility that disclosure would be an unwarranted invasion of personal privacy. Thus, the requested information is confidential under the I1R1A and, consequently, is exempt from disclosure under the FOAA.
b. Identity of Confidential Source
Next, exemption 7(D) of the FOIA also mirrors that found in 16 M.R.S. 804(4), which makes confidential records that may disclose the identity of a confidential source. The First Circuit has held that Section 7(d) of FOIA's legislative history indicates that Congress intended a literal interpretation of the exemption "in major part to help law enforcement agencies to recruit, and to maintain, confidential sources; its object was not simply to protect the source, but also to protect the flow of information to the Jaw enforcement agency." Irons v. FBI, 880 F.2d 1446, 1449 (1st Cir. 1989) (citations omitted).
The critical inquiry usually involved in the application of Exemption 7(D} is whether the informant was a "confidential source," Ortiz v. United States Dep't of Health & Human Servs., 70 F.3d 729, 733 (2d Cir. 1995). "A source should be deemed confidential if the source furnished information with the understanding that the [agency] would not divulge the communication except to the extent the [agency] thought necessary for law enforcement purposes." United States DOJ v, Landano, 508 U.S. 165, 174 (1993). Since proof that an agency made an explicit promise of confidentiality to particular sources is often not possible to produce, the agency may prove that the informant expected confidentiality by citing to attending circumstances supporting the inference, such as if the informant was paid, the character of the crime, and the relation of the informant to the crime. Id. at 179.
In the instant case, the DEP's witnesses testified that several of the complainants wished to remain anonymous while others did not condition their complaint on such confidentiality. The Department does not point to specific circumstances tending to indicate that it is reasonable to infer that the complainants expected confidentiality. The informants in this case were contacting the DEP to report foul odors emanating from the property, not violent and/or serious crime that they may be in jeopardy for reporting.
Although the testimony is insufficient to establish which informants expected confidentiality, there is a significant privacy interest for those complainants that did so. Thus, the court would need further testimony indicating of complainants spoke on the condition of confidentiality to apply 16 M.R.S. § 804(4). Because the court finds that the requested information is privileged under Rule 509(a) and confidential under 16 M.R.S. § 804(3), however, the court finds it unnecessary to conduct such further review.
c. Endanger the Life or Physical Safety of an Individual
Finally, the DEP argues that the identity of those who complained about Dubois Livestock is confidential because disclosure could endanger the life or physical safety of the individuals pursuant to 16 M.R.S. § 804(8). Exemption 7(F) of FOIA likewise mirrors the IIRIA's exemption. 5 U.S.C.S. § 552(b)(7)(F).
At the hearing, Mr. Clark testified that he believed that the complainants could be subject to harassment if their identities were disclosed given the tone and content of letters from Dubois Livestock. Without evidence of actual intent to commit physical violence or past history of physical confrontation, this is insufficient to establish a reasonable possibility of danger to the life or physical safety of the complainants. Consequently, 16 M.R, S. 804(8} does not render the identity of those who complained about Dubois Livestock to the DEP confidential.
b. Whether the Request is Barred by Res Judicata
Notwithstanding the applicability of FOAA or the IIRIA, the DEP finally argues that this action is now barred by res judicata due to the Law Court's recent decision in Dubois v. Dep't of Agric, 2018 ME 68, 185 A.3d 743, (DEP Br. 16.)
Plaintiff Dubois argues that the issue of res judicata is beyond the scope of this court's authority on remand under | the law of the case doctrine. (Marcel Dubois Br. 3.) Mr, Dubois is correct that this court is required to follow the Law Court's directives on remand. Blance v. Alky, 404 A.2d 587, 589 (Me. 1979); Conley v. United States, 323 F, 3d 1, 12 (1st Cir. 2003). However, the Law Court issued the DACF decision after remanding the case to this court, changing the circumstances between the time when the Law Court remanded the matter to this court and the present. Addiionaliy, the Law Court did not. make a ruling on the application of res judicata one way or the other and thus the court is not addressing an issue already decided by the Law Court. For these reasons, the court fiads it proper to address whether plaintiffs1 claims are barred by res judicata.
'The doctrine of res judicata ... is a court-made collection of rules designed to ensure that the same matter will not be litigated more than once." Beegan v. Schmidt, 451 A.2d 642 ? 643-44 (Me, 1982). The term "res judicata" encompasses two different legal theories: claim preclusion, or "bar"; and issue preclusion, or "collateral estoppel," Id. at 644; see Wilmington Tr, Co. v, Sullivan-Thome, 2013 ME 94, ¶ 7, 81 A.3d 371. Claim preclusion "prohibits relitigation of an entire 'cause of action' between the same parties or their privies, once a valid final judgment has been rendered in an earlier suit on the same cause of action"; and issue preclusion "prevents the reopening in a second action of an issue of fact actually litigated and decided in an earlier case." Beegan, 451 A.2d at 644; see Macomber v. MacQuinn-Tweedie, 2003 ME 121, ¶ 22, 834 A.2d 131 ("The collateral estoppel prong of res judicata is focused on factual issues, not claims ....").Pushard v. Bank of Am., N.A, 2017 ME 230, ¶ 19, 175 A.3d 103.
The doctrine of res judicata, including both issue preclusion and claim preclusion, does not apply to bar plaintiffs' arguments in this remand. This case involves different parties than Dubois v. Dep't of Agric, 2018 ME 68, 185 A.3d 743. Although the causes of action arise from the same underlying investigation and involve FOAA requests for same category of information, the issues presented involve different facts, circumstances, and State agencies. Although similar to the DACF, the DEP possesses different sources of authority, duties, and methods of exercising its powers. Additionally, the acts of the DEP in particular, separate and apart from the DACF, factor heavily into the issue of whether the requested information is exempt from public disclosure under the FOAA. Consequently, plaintiffs are not relitigating the action decided in the DACF case by pursuing the present action against the DEP and res judicata does not apply to bar the instant case.
c. Whether the DEP Must Disclose Which Individual Made Which Complaint Without Disclosing their Identities.
Should the court reach the conclusion that it ultimately reaches in this judgment, plaintiff Marcel Dubois requests in the alternative the court order the DEP to disclose of the total amount of complainants without disclosing their identities. At the hearing, Mr. Clark testified that around 10 individuals made the complaints at issue here. As specified in the statute, the agency is not required to create a record where none exists. 1 M.R.S.A. § 408-A(6). Mr. Dubois's request would compel the DEP to create a new document without the confidential information redacted in contravention of the FOAA. Further, Mr. Clark already testified about the total number of complainants at the hearing. The court is aware of no precedent allowing the court to order an agency to produce such information. Mr. Dubois's request is hereby denied.
V. CONCLUSION
For the foregoing reasons, the information requested in plaintiffs' FOAA request does not fall within the definition of "public records'* subject to disclosure under the FOAA because the requested information is both privileged under M.R. Evid. 509(a) as well as confidential under 16 M-R.S. 804(3). Thus, the Department of Environmental Protection's September 24, 2015 partial denial of plaintiffs' FOAA request is hereby affirmed.
The clerk shall make the following entry on the docket:
Defendant Department of Environmental Protection's September 24, 2015 partial denial of plaintiffs' FOAA request is hereby affirmed.
SO ORDERED.