Supreme Judicial Court (July 13, 2007)

Government employees and officers are not required to produce attorney-client privileged materials in response to a public records request from an outside agency.

In a lawsuit for a dispute over payment, Suffolk Construction made a public records request to the Division of Capital Asset Management (DCAM) for all documents related to the specific project in question. In response to the public records request, DCAM employees provided Suffolk Construction with approximately a half a million documents; however, DCAM, a government agency, asserted the attorney-client privilege with respect to other documents.

Relying on the Supreme Judicial Courts failure to find an implied exemption in the public records law for information otherwise protected by the attorney work-product doctrine, General Electric Company v. Department of Environmental Protection, 429 Mass 798 (1999), Suffolk Construction filed a complaint for declaratory and injunctive relief with the superior court claiming that the employees of DCAM were precluded from asserting an attorney-client privilege under the provisions of the public record law. The SJC disagreed ruling "the attorney-client privilege is a fundamental component of the administration of justice. … Nothing in the language or history of the public records law, or in our prior decisions, leads us to conclude that the Legislature intended the public records law to abrogate the privilege for those subject to the statute. … Government clients enjoy the same rights and protections afforded by the attorney-client privilege as do private clients."