Requests for Documents from Municipalities and the Attorney - Client Privilege

- Donna M. Brewer

            Any person may request access to public records pursuant to the Massachusetts Public Records Act, G.L. c. 66, § 10(a).  Massachusetts law, however, defines several categories of information as exempt from the definition of a public record.  G.L. c. 4, § 7(Twenty-sixth)(a-p).  These exemptions are detailed and narrowly construed and therefore should be considered carefully when determining whether a record may be withheld from public view.  Attorney General v. Assistant Cmm’r of the Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980).  The presumption will be that records in the possession of a municipal official are available to the public.  G.L. c. 66, § 10(c). 
            The statutory exemptions do not contain any basis for withholding information on the grounds of attorney work product or the attorney-client privilege.  In General Electric Co. v. Dep’t of Environmental Protection, 429 Mass. 798 (1999), the Supreme Judicial Court rejected a claim that there should be an implied exemption for attorney work product materials.  Since there was no express statutory exemption for attorney work product materials, the Court would not read into the law by implication the common law exemption from production that applies to discovery in litigation.
            The Supreme Judicial Court held differently, however, for the application of the attorney-client privilege to documents requested under the Public Records Act.  In Suffolk Construction Co. v. Div. of Capital Asset Management, 449 Mass. 444 (2007), the SJC held that the Public Records Act did not preclude the protection of the attorney-client privilege from municipal records that otherwise would be required to be produced to a requesting party.  Thus, municipal officials responding to a public records request have another exemption that must be kept in mind when making documents available to the public.  When in doubt, responding officials should check with municipal counsel before providing to the public any document created by or sent to an attorney for the purpose of obtaining legal advice.