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	Departm ent	 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	Departme nt	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.	E vid.	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 .		B ecause 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	reque st 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	redacte d3 or	 withheld	 by	 the Department. S ee 1	 M.R.S.	 § 408

- A(4)

. The	 Department provided	a	“FOAA	Exceptions	Log”	in	which	it	gave	i ts	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

. S ee 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 ,	54 7

- 4 8	(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.
O n	 January	 21,	 2016,	 the	 court	 issued	 a	 scheduling	 order	 that	 required	 the
De partment	to	file	with	the	court (1)	all	the	redacted	and	w ithheld	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	 produc t	 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	Mai ne	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	aff idavit	 denied them	due	process	because they	we re “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. o f	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. W hen	an a gency 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	 befor e	 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	a n	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	n ovo” in	the	Superior	Court	for the	 adjud ication	 of	 any	 contested	 facts .	 	 1	M.R.S.	 § 409(1). Through	 a	 2015 amendment	 to	 th e	 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,	2 015). The	statute	now	requires	instead	that	the court	 conduct	 a	 “ r eview,	 with	 taking	 of	 testimony	 and	 other	 evidence	 as7 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

. [¶1 1 ]	 	 At	 t he	 tim e	 Dubois	 and	 Fedder	 filed	 their	 appeal	in	 the	matter before	us, however, the	statute	had	not	been	changed	to	create	the	improved evidentiary	 process. T he	 Superior	 Court wa s the	 “forum	 of	 origin	 for	 a determination	 of	 both	 facts	 and	 law”	 and did not “function	 in	 an	 appellate capacity , ” and e ach	party	wa s	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)

. [¶ 1 2 ] 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	 a n d Fedder did not ,	 however, have	 the	 opportunity	 to	 challenge the Department’s	 factual	 assertions through	 cross

- examination;	 nor	 were	 they invited	 to	 present resp onsive evidence

. The	 question	 before	 us	 is	 whether Dubois	and	Fedder have	identified any	disputed	fact ual	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 [¶ 1 3 ] Dubois	and	Fedder	challenge	 the	court’s determination that	 th e records withheld	by	the D epartment 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. [¶ 1 4 ] 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 [¶1 5 ] 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. [¶1 6 ] The work	product	privilege	prevents	a	party	from	being	required to	disclose	documents “ created	because	of	the	party’s	subjective	antic ipation	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,	t he	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)

. [¶1 7 ] Here,	 the	 Department	 a rgued 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	litiga tion

. I t	 is	 plain	 on	 the	 face	 of	 these	 documents	 that	 they	 were	 prepared	 in10 anticipation	of regula tory	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 [¶1 8 ] 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 assert ing that	the identities	of	the	complainants11 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

.	.	. .” [¶ 2 0 ] I n	addition , FOAA ex cepts	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	 intelligenc e	 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 sourc e.” 5
16 M.R.S.	§	804 (4)	(2016). [¶ 2 1 ]	 	 The	 statute	 defines “ i ntelligence	 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 cau se”	 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). T he	“administration	of	criminal justice”	 is	 defined	 as	 “activities	 relating	 to	 the	 anticipation,	 prevention, detection,	monitoring	or	investigation	of	known,	suspected	o r	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)

. [¶ 2 2 ] Relative	to	these	statutory	definitions,	t he 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) (em phasis added)

. The	Department	c ommissioner 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	 action13 by

. . . [r]eferring	 the	 violation	 to	 the	 Attorney G eneral	 for	 civil	 or criminal prosecution.” 38	M.R.S.	§	347

- A (1)(A)(2)	(2016) (emphasis	added)

. [¶ 2 3 ] Given	 the	 nature	 of	 the	 record s 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

. I t	 is	 not	 clear	 from	 the	 face	 of	 the	 records that	 w ere 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)

. [¶ 2 4 ] S imil arly ,	because	the	Department	did	n ot	assert	the	applicability of statutory	 confidentiality	 for	 investigative	 records, the	 trial	 court	 did	 not

6 T he	te rm	“law enforcement	officer ” is	not	defined	by	t he	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	 tha t	 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)

. [¶ 2 5 ] Because there	 were	 factual	 disputes	 regarding	 several	 findings necessary	 to	a	 determ ination	 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,	w e 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

. S ee 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	informa nt	identity	privilege. Remanded	 to	 the	 Superior	 Court to	 take evidence	and	make findi ngs	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

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- 28 F OR C LERK R EFERENCE O NLY