‘Attorney work product’ not exempt

Because the state’s Public Records Law does not contain an explicit exemption to prevent the release of state records protected by the “attorney work product” privilege, those records must be made public, according to a late June ruling from the state’s highest court.

The case involved property owned by General Electric and the company’s attempts to obtain records related to the potential status of its property as a Superfund site.

Before the relationship began to sour in 1997, General Electric had been working closely with the state Department of Environmental Protection and the federal Environmental Protection Agency for years to clean up the area surrounding its western Massachusetts factory in Pittsfield, along the Housatonic River.

In September 1997, the EPA announced plans to designate the polluted factory grounds as a Superfund site. That designation would bring the clean-up efforts under direct authority of the Comprehensive Environmental Response, Compensation and Liability Act and EPA officials.

As required by law, the EPA announced it would be accepting comments on the proposal until May 1, 1998. In preparation of its comments, GE sought records from the DEP under the state Public Records Law concerning the polluted area and its proposed designation as a Superfund site. A Sept. 12, 1997 request was not answered until January 1998, and an Oct. 7, 1997 request was ignored completely, GE alleged.

On April 7, 1998, GE filed suit in Suffolk County Superior Court in Boston seeking expedited access to the records and declaratory relief. The court granted GE’s request on April 14 and ordered the DEP to turn over the requested records — not covered by any exemption — by the following week. On April 21, DEP released about 230 records and an index of 419 records it claimed were covered by exemptions, including one for attorney work product.

In civil litigation, attorney work product — the documents an attorney prepares in anticipation of litigation, which may contain the lawyer’s strategies and mental impressions — are generally free from discovery by the other side. The state DEP sought, in its denial of GE’s records request, to extend this litigation principle to the area of public records, an approach most other states follow.

Not satisfied, GE filed a motion with the court on May 8, 1998 claiming that the DEP may not withhold records solely because they are attorney work product and asking the court to order disclosure. The court ruled in favor of the DEP on June 15, however, holding that even though no explicit attorney work product exemption existed, an implied one did. GE appealed to the Supreme Judicial Court, the state’s highest court, that August.

GE argued to the court in May 1999 that the DEP was precluded from raising a work product exception because the Public Records Act did not contain one. The law, it argued, states that government records are to be presumed public unless a specific exemption applies.

GE pointed to the legislative history of the Public Records Act for support. In 1973, the legislature passed an amendment to the law that required the release of all public records not specifically exempted, and it considered another amendment that would have exempted attorney work product. The fact that no work product exemption was ever passed, GE argued, shows that the legislature did not intend for one to exist.

GE further argued that while the state law largely was modeled after the federal Freedom of Information Act, which does contain an exemption that prevents the release of attorney work product, the state law does not contain a similar exemption.

To read into a statute an exemption that is contrary to the law’s plain meaning, GE argued, is to disregard a long line of cases that say just that: A law’s plain meaning must be followed.

The DEP argued that the Public Records Act lacked an explicit statement that would overrule the long tradition of keeping attorney work product materials secret. The general disclosure provision was insufficient to accomplish this, the DEP said.

It also argued that court rules for civil procedure, including ones that exclude attorney work product from discovery, were controlling. The Public Records Law itself recognized that other statutes also may contain provisions that prevent the release of documents, and nothing in the records law was meant to change that, the DEP argued. The court rule preventing discovery of attorney work product was meant to be read into the records law, it argued.

The Supreme Judicial Court was unswayed, however. It sided with GE, saying in its late June opinion that because no specific work product exemption exists one cannot be implied to prevent disclosure of otherwise public records. And even though the legislature may have worked on drafting the court rules that contain a work product exemption, the rules are not an actual law and, therefore, not affected by the Public Records Law.

“There is no ambiguity in the statute’s explicit mandate that the public have access to all government documents and records except those that fall within the scope of an express statutory exemption,” the court ruled. (General Electric Co. v. Department of Environmental Protection)