Court limits work product exemption in 'Superfund' case

MASSACHUSETTS–Records custodians may not invoke the common law work product doctrine to exempt executive branch records from disclosure, the Massachusetts Supreme Judicial Court in Boston held in late June.

However, records custodians may still invoke the exemption in the state’s record law permitting them to withhold records relating to policy deliberations being conducted by governmental agencies.

The case arose from a dispute between General Electric, the state Department of Environmental Protection and several federal agencies over the labeling of a General Electric facility on the Housatonic River as a “Superfund” cleanup site under federal environmental law.

During the dispute, General Electric requested documents from the department related to the proposed labeling of the site and the department produced a limited set of documents in response. The department also produced an index of 419 withheld documents, many of which it identified as being exempt from disclosure as agency work product. General Electric then sued, seeking access to the rest of the records.

After both parties filed summary judgment motions, the trial judge granted the department’s motion, holding that work product enjoys an implied exemption from disclosure under the state records statute.

The high court disagreed. No such common law privilege from disclosure exists, the court unanimously held. The language of the state records law provides for broad public access to records with only limited exceptions, the court noted.

The court observed that language codifying a work product privilege was rejected during a 1973 amendment to the records law. Therefore, the Legislature did not intend to incorporate a work product privilege into the state records law, the court concluded.

Nor could a privilege be found under the common law, the court stated, noting that the only exemptions to the state law were those found in the statute.

However, the court did note that, where the requested documents were shared between agencies, the shared material would be exempt under the law’s existing policy deliberation exemption.

(General Electric v. Dept. of Environmental Protection)