Section 518. Executive or Governmental Privilege

[Privilege not recognized]

NOTE

Unlike the Federal system, neither the Massachusetts courts nor the Legislature has established a “deliberative process privilege” that prevents a party from obtaining documents from a public officer or agency that record the deliberative process leading up to a decision by the officer or agency. See District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 509–510, 646 N.E.2d 127, 128–129 (1995). Likewise, there is no “executive privilege” under the Massachusetts Constitution similar to the privilege which exists under the Federal Constitution. Compare Babets v. Secretary of Human Servs., 403 Mass. 230, 231, 526 N.E.2d 1261, 1262 (1988) (doctrine of separation of powers does not require recognition of “executive privilege”), with United States v. Nixon, 418 U.S. 683, 711 (1974) (recognizing that separation of powers under Federal Constitution implies a qualified privilege for presidential communications in performance of president’s responsibilities).

Access to inter-agency or intra-agency reports, papers, and letters relating to the development of policy is governed by G. L. c. 66, § 10, the public records statute. This law creates a presumption that all records are public, G. L. c. 66, § 10(c), and places on the custodian of the record the burden of establishing that a record is exempt from disclosure because it falls within one of a series of specifically enumerated exemptions set forth in G. L. c. 4, § 7, Twenty-sixth. Id. Under G. L. c. 4, § 7, Twenty-sixth (d), the following material is exempt from public disclosure: “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” Id. “The Legislature has . . . chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available.” Babets v. Secretary of Human Servs., 403 Mass. at 237 n.8, 526 N.E.2d at 1265 n.8.