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Springfield Terminal Rwy. Co. v. D.O.T.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 126
Docket:	Ken-99-743
Argued:	April 3, 2000
Decided:	June 30, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

SPRINGFIELD TERMINAL RAILWAY COMPANY

v.

DEPARTMENT OF TRANSPORTATION

CLIFFORD, J.

	[¶1]  Springfield Terminal Railway Company appeals from a judgment
entered in the Superior Court (Kennebec County, Studstrup, J.) in favor of
the Department of Transportation affirming the Department's decision to
refuse to produce thirteen documents pursuant to the Freedom of Access
Act.  See 1 M.R.S.A. § 408 (1989).{1}  Springfield argues that the trial court
erred in deciding that those documents were not "public records" as
defined by 1 M.R.S.A. § 402(3) (Supp. 1999).{2}  Finding no error, we affirm
the judgment.
	[¶2]  Prior to 1991, Guilford Transportation Industries, Inc., the
parent company of Springfield, owned a 19 mile stretch of railroad track
between Brunswick and Lewiston known as the "Lewiston Lower Road"
branch.  In 1991, the State purchased from Guilford the right of way and
track materials on the 9.4 mile segment of the track between Brunswick
and Lisbon Falls.  Guilford retained a rail freight easement which apparently
gave it an exclusive right to carry freight on that segment of track.
	[¶3]  In June of 1997, a representative of Grimmel Industries, a scrap
metal business located in Topsham, contacted the Department seeking its
assistance in obtaining rail service.  Grimmel was located along the
State-owned portion of the track, and Guilford had refused to provide the
rail service Grimmel had requested.  The Department began negotiations
with Guilford with the goal of providing rail freight service along the
Lewiston Lower Road.  Ultimately, the parties agreed that (1) Guilford would
abandon the entire Lewiston Lower Road, (2) the Department and Guilford
would negotiate for the State's purchase of the portion of line not owned by
the State, and (3) the State would spend funds to rehabilitate and reopen
the line.  Though the dates are not made clear by the testimony, it appears
that this agreement was made orally in early January of 1998. 
	[¶4]  In June of 1998, Guilford filed for abandonment of the Lewiston
Lower Road with the Surface Transportation Board (STB), a federal agency. 
Immediately thereafter, the Department began to appraise the segment of
the line still owned by Guilford so the parties could negotiate a price for its
sale.  In early February 1999, however, Guilford "postponed indefinitely" any
negotiations regarding the sale of its track.
	[¶5]  On August 31, 1999, Guilford submitted a motion to the STB to
withdraw its abandonment of the Lewiston Lower Road.  The Department
has opposed that motion, which was still pending before the STB at the time
of this appeal.  The Department also continued with its $250,000 plan to
rehabilitate the track that it owned to allow a carrier other than Guilford to
provide service along the Lewiston Lower Road.  The Department also
intends, sometime in the future, to construct a short segment of track to
connect the Lewiston Lower Road tracks with the St. Lawrence & Atlantic
Railroad Company tracks located in Lewiston to increase the efficiency of
Maine's rail infrastructure.  
	[¶6]  By letter dated June 4, 1999, Springfield requested, pursuant to
1 M.R.S.A. § 408 (1989), that the Department make available for inspection
various records pertaining to the Department's involvement in the Lewiston
Lower Road project.  The Department complied with that request but
withheld 13 documents on the basis that they were subject to attorney
client privilege, constituted attorney work product, and/or were not public
records as defined by 1 M.R.S.A. § 402 (Supp. 1999).  The Department
described the withheld documents as follows:

	1.	E-mail inquiry to counsel;
	2.	Right of Way records;
	3.	Letter by Chief Counsel;
	4.	Business materials prepared for the Legislature;
	5.	Two Memorandums concerning Right of Way;
	6.	Hand written note on Right of Way issues;
	7.	Inquiry memo to Chief Counsel;
	8.	Memo to Chief Counsel;
	9.	Memo from Chief Counsel to Office of Freight
		Transportation;
	10.	Memo from counsel;
	11.	Memo from counsel;
	12.	Memo from counsel;
	13.	Memo from counsel.{3}

	[¶7]  In June of 1999, Springfield brought this action seeking
disclosure of the withheld documents.  See 1 M.R.S.A. § 409 (Supp. 1999)
(allowing parties who are denied access to records by an agency to appeal
the denial to the Superior Court).  By agreement of counsel, the Department
submitted the withheld documents to the Superior Court for in camera
inspection.  After examining the documents and considering the briefs of
the parties, the Superior Court held that documents 2, 5, and 6 were not
public records because they were records relating to engineering costs of
projects that were to be put out to bid, making them confidential pursuant
to 23 M.R.S.A. § 63 (1992).  See 1 M.R.S.A. § 402(3)(A) (Supp. 1999).  The
court also held that documents 1, 3, and 7 through 13 were work product
created in anticipation of litigation, the litigation being the Department's
opposition, in the STB abandonment proceedings, to Guilford's motion to
withdraw its proposed abandonment of the Lewiston Lower Road.  See 1
M.R.S.A. § 402(3)(B) (Supp. 1999).  Finally, the court found that documents
6, 7, and 8 were also subject to the attorney-client privilege.  Springfield
appealed to this Court.

I.

	[¶8]  We must construe the provisions of the Freedom of Access Act to
determine if certain documents are "public records" as defined by the Act. 
Statutory construction being an issue of law, we review the trial court's
construction of the Act de novo.  See Doe v. Department of Mental Health,
1997 ME 195, ¶ 8, 699 A.2d 422, 424.  We construe statutes by applying
the plain meaning of the statute in an attempt to give effect to the
Legislature's intent.  See id.  "In addition, because the Freedom of Access
Act mandates that its provisions 'shall be liberally construed,'" id. (quoting
1 M.R.S.A. § 401 (1989)), "'we must interpret strictly any statutory
exceptions to its requirements,'" id. (quoting Bangor Publ'g Co. v. City of
Bangor, 544 A.2d 733, 736 (Me. 1988)). 
	[¶9]  The burden of proof falls on the agency to establish "just and
proper cause" for the denial of a Freedom of Access Act request.  See
1 M.R.S.A. § 409 (1989) (stating that, on appeal to the Superior Court, the
court must enter an order for disclosure if it determines "denial was not for
just and proper cause"); Boyle v. Division of Community Servs., 592 A.2d
489, 490 (Me. 1991) (implying in its analysis that the burden was on the
agency).

A. The Documents Numbered 2, 5, and 6.

	[¶10]  The Freedom of Access Act protects from disclosure "[r]ecords
that have been designated confidential by statute."  See 1 M.R.S.A.
§ 402(3)(A) (Supp. 1999).  The trial court concluded that 23 M.R.S.A. § 63
(1992) designated documents 2, 5, and 6 as confidential.  Title 23, section
63 provides, in part:

The records and correspondence of the right-of-way division of
the department relating to negotiations for and appraisals of
property, pending the final settlement for all claims on the
project to which they relate and the records and data of the said
department relating to engineering estimates of costs on
projects to be put out to bid, shall be confidential, and shall not
be open for public inspection.

23 M.R.S.A. § 63.

	[¶11]  Having reviewed these documents in camera, we agree with the
Superior Court's conclusion that they are protected from disclosure by
23 M.R.S.A. § 63.  Document 2 consists of notes regarding appraisals of
property and engineering estimates of costs on projects relating to the
Lewiston Lower Road.  Documents 5 and 6 also relate, in their entirety, to
property appraisals regarding the Lewiston Lower Road project.  Because all
three documents relate to property appraisals and engineering costs, they
are confidential.{4} 
 
B.  The Documents Numbered 1, 3, and 7-13.

	[¶12]  The Department contends, and the trial court held, that
documents 1, 3, and 7-13 are protected from disclosure by the work
product doctrine.  Springfield argues that the documents are not protected
because they were not prepared in anticipation of litigation.  We agree with
the Department.
	[¶13]  Documents which "would be within the scope of a privilege
against discovery" are not public records subject to disclosure.  See
1 M.R.S.A. § 402(3)(B) (Supp. 1999).  One such privilege is the work
product doctrine.

[A] party may obtain discovery of documents and tangible
things . . . prepared in anticipation of litigation or for trial by or
for another party or by or for that other party's
representative . . . only upon a showing that the party seeking
discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable
without undue hardship to obtain the substantial equivalent of
the materials by other means.  In ordering discovery of such
materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.

M.R. Civ. P. 26(b)(3).

	[¶14]  In the few cases in which this issue has been addressed, we
have conducted our own in camera review of the challenged material to
determine whether the trial court committed legal error in determining
whether a document is protected work product.  See Boccaleri v. Maine
Med. Ctr., 534 A.2d 671, 672-73 (Me. 1987); New England Tel. & Tel. Co. v.
Public Utils. Comm'n, 448 A.2d 272, 283 (Me. 1982).  
	[¶15]  Rule 26(b)(3), which is identical to Fed. R. Civ. P. 26(b)(3),
contemplates a preliminary analysis by the trial court to determine whether
the party seeking to protect the material from disclosure has met its burden
of establishing that the document is work product.  See M.R. Civ. P. 26(b)(3). 
If that burden is met, the burden then shifts to the party seeking disclosure
to demonstrate that it has substantial need of the materials and cannot
obtain the document otherwise without undue hardship.  See id.  Finally,
even if the party seeking disclosure can establish need and hardship,
documents, or parts of documents, containing "mental impressions,
conclusions, opinions, or legal theories of an attorney" shall not be
disclosed.  See id. 
	[¶16]  A document is protected as work product only if it was created
because of the party's subjective anticipation of future litigation. See M.R.
Evid. 26(b)(3); Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252,
1260 (3d Cir. 1993) (holding that "[o]nly by looking to the state of mind of
the party preparing the document or . . . the party ordering the preparation
of a document" can the court determine whether the document was
prepared in anticipation of litigation).  Yet, subjective belief alone is not
enough.  The preparer's anticipation of litigation must also be "objectively
reasonable."  See Martin v. Bally's Park Place Hotel & Casino, 983 F.2d at
1260.  
	[¶17]  Moreover, the document must also be of a type that can be
considered work product.  "A party generally must show that the documents
were prepared principally or exclusively to assist in anticipated or ongoing
litigation."  United States v. Construction Prods. Research, Inc., 73 F.3d
464, 473 (2d Cir. 1996).  "'[T]he test should be whether, in light of the
nature of the document and the factual situation in the particular case, the
document can be fairly said to have been prepared or obtained because of
the prospect of litigation.'"{5}  In re Grand Jury Proceedings, 604 F.2d 798,
803 (3d Cir. 1979) (quoting 8 Charles A. Wright and Arthur R. Miller,
Federal Practice and Procedure § 2024, at 198 (1970)), quoted in Martin v.
Bally's Park Place Hotel & Casino, 983 F.2d at 1260; see also State Farm Fire
& Cas. Co. v. Perrigan, 102 F.R.D. 235, 238 (W.D. Va. 1984).
	[¶18]  Finally, the test should be applied in light of the purpose of the
rule, which is to "'promote the adversary system by protecting the
confidentiality of papers prepared by or on behalf of attorneys in anticipation
of litigation.'"  See Martin v. Bally's Park Place Hotel & Casino, 983 F.2d at
1265 (Nygaard, J., concurring) (quoting Westinghouse Elec. Corp. v.
Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991)) (alterations omitted). 
"[O]ur adversary system depends on the effective assistance of lawyers,
fostered by the privacy of communications between lawyer and client and
the privacy in development of legal theories, opinions, and strategies for the
client."  National Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967
F.2d 980, 983 (4th Cir. 1992).  Moreover, it is not just the work of the
attorney that is protected.  Also protected are documents created by the
party or the party's representatives, as long as they are created in
anticipation of litigation.  See M.R. Civ. P. 26(b)(3).
	[¶19]  Some courts have found that litigation need only be
"'identifiable' in order to trigger work product protection."  See Martin v.
Bally's Park Place Hotel & Casino, 983 F.2d at 1260 (quoting 4 James W.
Moore et al., Moore's Federal Practice ¶ 26.64[2], at 26-352 (1991)). "A
remote possibility of litigation is insufficient," however, "and some courts
even have found the likelihood of litigation to be a deficient showing,
requiring a substantial probability with commencement imminent."  4
Moore supra, ¶ 26.64[2], at 26-353 (1987).  Because the purpose of the rule
is to protect those communications that were legitimately made in
anticipation of trial, the party seeking to prevent disclosure should be able
to demonstrate that its expectation of litigation is reasonable.  A good
formulation of this reasonableness test can be found in National Union Fire
Insurance:

The document must be prepared because of the prospect of
litigation when the preparer faces an actual claim or a potential
claim following an actual event or series of events that reasonably
could result in litigation.

National Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d at 984.

	1.  Documents 1, 7, and 8
 
	[¶20]  Documents 1, 7, and 8 are communications from Department
officials to its chief counsel regarding possible eminent domain proceedings. 
They were drafted after Guilford orally agreed to abandon the Lower
Lewiston Road, and each document was created in anticipation of future
eminent domain litigation.  Indeed, they were created for the purpose of
determining whether eminent domain proceedings could be brought at all.{6}  
	[¶21]  When the Department sought advice regarding whether or not
the law allowed it to bring an eminent domain proceeding against Guilford,
it adequately identified the prospect that litigation would be necessary to
restore rail service to the Lewiston Lower Road.  That it hoped that legal
action would not be necessary does nothing to alter the fact that the
Department's belief in the necessity of a legal solution was strong enough to
submit the idea to outside counsel.
	[¶22]  Moreover, the Department's anticipation of litigation was
reasonable.  The key factor to consider in making that analysis is the lack of
any binding written agreement for the sale of Guilford's interest in the
Lewiston Lower Road.  While Guilford orally agreed to abandon the line and
to negotiate with the Department, it was in no way bound to do so. 
Consequently, it was reasonable for the Department to expect that the
negotiations would be unsuccessful and that it would likely be forced to
resort to any eminent domain power it might have in order to acquire the
property.  Because the Department prepared documents 1, 7, and 8 in
reasonable anticipation of litigation, we conclude that those documents are
protected from disclosure by the work product doctrine.
 
	2.  Documents 9-13

	[¶23]  Documents 9-13 are authored by the Department's chief
counsel and outside counsel, and they are responses to the requests for legal
advice contained in Document Nos. 1, 7, and 8.  Not only do those
documents contain advice regarding the mechanics and possible outcomes
of various forms of future litigation, they also contain, almost exclusively, the
"mental impressions, conclusions, opinions, or legal theories of an attorney"
and are, therefore, protected from disclosure by M.R. Civ. P. 26(b)(3).
 
	3.  Document No. 3

	[¶24]  Document 3 is a letter from the Department's chief counsel to
outside counsel seeking advice on yet another legal alternative to a
negotiated solution with Springfield.  Accordingly, as with documents 1, 7,
and 8, this communication is protected work product.{7}
	The entry is: 
			Judgment affirmed.
                                                         
Attorney for plaintiff:

Thad B. Zmistowski, Esq.
Eaton Peabody Bradford & Veague, P.A.
P O Box 1210
Bangor, ME 04402-1210

Attorneys for defendant:

Andrew Ketterer, Attorney General
Christopher C. Jernigan, Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

James E. Smith, Chief Counsel
Department of Transportation
16 State House Station
Augusta, ME 04333-0016