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Attorney-client documents exempt from public records law

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NEWS MEDIA UPDATE   ·   MASSACHUSETTS   ·   Freedom of Information   ·   July 20, 2007

NEWS MEDIA UPDATE   ·   MASSACHUSETTS   ·   Freedom of Information   ·   July 20, 2007

Attorney-client documents exempt from public records law

  • The Massachusetts high court ruled that the public records law does not trump attorney-client privilege.

July 20, 2007  ·   Attorney-client documents are not subject to disclosure under Massachusetts’ public records law, the state’s highest court ruled in an opinion released last week.

Writing for a unanimous Supreme Judicial Court, Chief Justice Margaret Marshall opined that “the attorney-client privilege is a fundamental component” of the law because it promotes open and honest discussion between the attorney and the client. As such, the privilege is a necessary administrative tool for public officials and agencies to be able to assert when denying an applicable public records request, Marshall wrote.

“The necessity of the privilege for governmental entities and officials flows directly from the realities of modern government. Public employees must routinely seek advice from counsel on how to meet their obligations to the public. It is in the public’s interest that they be able to do so in circumstances that encourage complete candor, without inhibitions arising from the fear that what they communicate will be disclosed to the world,” Marshall wrote.

The case began as a payment dispute between a contractor working on a public building renovation project in Boston and the commonwealth’s division of capital asset management and maintenance. The contractor filed public records requests for all documents related to the project, including those exchanged between the department and its legal counsel. While the agency turned over a half-million documents in response to the request, according to the opinion, it withheld nearly 200 documents claiming they were protected by the attorney-client privilege.

The Supreme Judicial Court agreed to hear the case on a request from the trial court seeking guidance on the question of attorney-client privilege as asserted by a public agency.

In reaching its decision, the court declined to apply an earlier case, in which the court found no public records law exemption for records prepared by an attorney, commonly referred to as attorney work product, because the exemption was not specifically stated in the public records laws.

But here, with the attorney-client privilege, the court drew the opposite conclusion. Without specific statutory language in the public records law ruling out the application of the attorney-client privilege exemption, the court would not on its own find otherwise.

“If the Legislature intended to divest government officials and entities subject to the public records law of a privilege as basic and important as the attorney-client privilege, it would have made that intention unmistakably clear,” Marshall wrote.

The case was sent back down to the trial court for a ruling consistent with this opinion on the contractor’s motion to compel the department to turn over the privileged documents.

(Suffolk Construction Co. Inc. v. Division of Capital Asset Management)LC

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