Monday, July 23, 2007

Attorney-Client Privilege and Public Records Access

Drawing a distinction between the work-product doctrine and attorney-client privilege, a unanimous Supreme Judicial Court ruled last week in Suffolk Construction v. DCAM, 449 Mass. 444 (2007), that documents covered by attorney-client privilege are not public records under MGL c.66, s.10 and MGL c.4, s.7, cl. twenty-sixth.

Although the court had previously held in General Electric Co. v. Department of Environmental Protection, 429 Mass. 798 (1999), that the work-product doctrine did not exempt certain documents from the public records law, since attorney work-product was not specifically included in the list of exemptions in MGL c.4, s.7, cl. twenty-sixth, the current case reaches a different conclusion for documents covered by attorney-client privilege.

The court also contrasts this case with District Attorney for Plymouth County v. Board of Selectman of Middleborough, 395 Mass. 629 (1985), in which it held that public officials could not hold closed meetings in order to consult with their attorneys because it would be in violation of the public meeting law, stating "the Legislature enumerated seven exceptions to its prohibition against private meetings of governmental bodies. '[E]xceptions are not to be implied.'"

For more information, see Law About Freedom of Information and Public Records.