The issue in this case is whether, by enacting the public records law, G. L. c. 66, § 10, and G. L. c. 4, § 7,
In accordance with the public records law, Suffolk filed a complaint in the Superior Court for declaratory and injunctive relief. See G. L. c. 66, § 10 (b). The Superior Court judge denied Suffolk's motion for preliminary injunctive relief and simultaneously reported the following question of law to the Appeals Court: "Do the provisions of the public records law, comprised of G. L. c. 66, § 10[,] and G. L. c. 4, § 7 (26), preclude the protection of the attorney-client privilege from records made or received by any officer or employee of any agency of the Commonwealth?" See G. L. c. 231, § 111; Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996). We granted the parties' joint application for direct appellate review.
We answer the reported question in the negative. As we
1. Background. The factual record is uncontested. In 2001, DCAM designated Suffolk and a joint venture partner
In August, 2005, Suffolk filed a verified complaint against DCAM for declaratory and injunctive relief, seeking to compel inspection and review of the withheld documents. See G. L. c. 66, § 10 (b). Simultaneously, Suffolk moved for a preliminary injunction seeking essentially the same relief.
The Superior Court judge hearing the public records law complaint issued four simultaneous rulings. The first denied Suffolk's motion for preliminary injunction on the grounds that, among other things, "the merits remain arguable, . . . the balance of irreparable harm in light of the merits favors the defendant . . ., [and a] preliminary injunction would alter, rather than preserve, the status quo." See Packing Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-622 (1980). The second ruling ordered DCAM, among other things, to enlarge its privilege index to include additional information relating to its claim of
In its brief to this court, Suffolk questions whether, under our common law, we recognize an attorney-client privilege in the public sphere. We turn first to this threshold question and, concluding that such a privilege does exist, then consider whether it is abrogated by the public records law.
2. Discussion. a. The attorney-client privilege.
One obvious role served by the attorney-client privilege is to enable clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal advice. In a society that covets the rule of law, this is an essential function. See, e.g., Hatton v. Robinson, 14 Pick. 416, 422 (1834) (attorney-client privilege exists to enable attorney to "successfully to perform the duties of his office").
The individual benefits of the attorney-client privilege mirror its more global functions. By "encourag[ing] full and frank communication between attorneys and their clients," the attorney-client privilege "promote[s] broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, supra. Paradoxically, this is so even though the attorney-client privilege may impede access to relevant facts. The attorney-client privilege "`creates an inherent tension with society's need for full and complete disclosure . . . .' But that is the price that society must pay for the availability of justice to every citizen, which is the value that the privilege is designed to secure." Matter of a John Doe Grand Jury Investigation, supra at 482, quoting In re Grand Jury Investigation, 723 F.2d 447, 451 (6th Cir. 1983), cert. denied, 467 U.S. 1246 (1984).
Suffolk does not attack the privilege itself but rather maintains that, in this Commonwealth, the application of the privilege in the public realm is "uncertain." It is not. Our prior decisions have presumed the existence of an attorney-client privilege for public officials and government entities. See, e.g., District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 632 n.4 (1985) (assuming without deciding that "public clients have an attorney-client privilege"); Vigoda v. Barton, 348 Mass. 478, 485-486 (1965) (letters defendant public official wrote to personal attorney and to assistant attorney general, copies of which were in plaintiff's personnel file, properly excluded from evidence at trial "as confidential communications between lawyer and client"). See also Judge Rotenberg
We now state explicitly that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.
Because the attorney-client privilege serves the same salutary purposes in the public as in the private realm, "it is now well established that communications between government agencies
We turn now to the central issue in this case: whether the public records law extinguishes the attorney-client privilege for government entities and officials subject to that law.
b. Public records law. The public records law opens records made or kept by a broad array of governmental entities
Not every record or document kept or made by the governmental agency is a "public record." The statute specifies fifteen categories of materials or information that fall outside the definition of a "public record," either permanently or for a specified duration. See G. L. c. 4, § 7, Twenty-sixth (a)-(p). See generally Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 591-592 & n.14 (2005) (summarizing statutory exemptions). If a dispute over a withheld document is brought to court, the statute establishes a clear "presumption that the record sought is public" and places the burden on the record's custodian to "prove with specificity the exemption which applies" to withheld documents. G. L. c. 66, § 10 (c).
Nowhere in the public records law is the term "attorney-client privilege" found. In parsing the legal meaning of this statutory silence, we begin with the proposition that a statute is construed to fulfil the Legislature's intent, as found most obviously in the words of the law itself, interpreted according to their ordinary and approved usage. See, e.g., Milford v. Boyd, 434 Mass. 754, 757 (2001). In construing the Legislature's intent, we may also enlist the aid of other reliable guideposts, such as the statue's "progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part." EMC Corp. v. Commissioner of Revenue, 433 Mass. 568, 570 (2001) (citations omitted). We consider the statute in light of the common law, Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), cert. denied, 284 U.S. 684 (1932), and we do not construe a statute "as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980), quoting Pineo v. White, 320 Mass. 487, 491 (1946). See Kerins v. Lima, 425 Mass. 108, 110 (1997), quoting Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 129 (1990), S.C., 412 Mass. 309 (1992) (court "will not presume that the Legislature intended . . . a radical change in the common law without a clear expression of such intent"). We do not overlay the words
Suffolk claims that our holding in General Elec. Co. requires us to read the public records law as abrogating the attorney-client privilege for government officials and entities within the statute's purview with regard to written communications. We do not agree. In General Elec. Co., a company contesting the proposed designation of its property as a "Superfund" site pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. (1994), sought public records law disclosure of documents held by the Department of Environmental Protection (department). The department claimed that the documents were protected by the common-law attorney work-product doctrine.
General Elec. Co. provides no guidance for our analysis of the question at hand. First, there is no merit in Suffolk's premise that, for purposes of construing the public records law, the attorney-client privilege and the work-product doctrine are "virtually indistinguishable." The two doctrines are readily differentiated. As one leading authority has noted:
E.S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 477 (4th ed. 2001). The attorney-client privilege has deep roots in the common law and is firmly established as a critical component of the rule of law in our democratic society. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Roberts v. Palmdale, 5 Cal.4th 363, 380 (1993) (attorney-client privilege "is no mere peripheral evidentiary rule, but is held vital to the effective administration of justice"); Foster v. Hall, 12 Pick. 89, 93 (1831). The work-product doctrine, in contrast, is a "tool of judicial administration, borne out of concerns over fairness and convenience and designed to safeguard the adversarial system, but not having an intrinsic value in itself outside the litigation arena." Pete Rinaldi's Fast Foods, Inc. v. Great Am. Ins. Cos., 123 F.R.D. 198, 201 (M.D.N.C. 1988). See Admiral Ins. Co. v. United States Dist. Court for the Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989) (work-product doctrine not a privilege but a "qualified immunity"). See also Mass. R. Civ. P. 26 (b) (3), as appearing in 365 Mass. 772 (1974) (offering limited protection to attorney work product). The distinctly different social value assigned to the two doctrines is reflected in the fact that the attorney-client privilege, which belongs to the client, is with rare exceptions inviolable, surviving even the client's death. See Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 484 (1990) ("ordinarily the client's and the public's interests are best served
Second, the deliberative process privilege is a "sub-species of work-product privilege that covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re the County of Erie, 473 F.3d 413, 417 n.3 (2d Cir. 2007), quoting National Council of La Raza v. Department of Justice, 411 F.3d 350, 356 (2d Cir. 2005). In General Elec. Co., we declined to construe the public record law as implying a broad exemption for attorney work product where the Legislature affirmatively expressed its intent to provide a more limited immunity from production. General Elec. Co., supra at 802. There is no "deliberative process" subset of the attorney-client privilege. That the Legislature expressly intended to truncate the protections of the attorney work-product doctrine under the public records law by providing an exemption from disclosure to a distinct subset of attorney work product, then, does not speak to the Legislature's intentions with regard to the attorney-client privilege.
We reject Suffolk's argument that construing the attorney-client
Nor do we have cause to presume that governmental entities and their counsel will have difficulty winnowing unprivileged from privileged information in response to a public records request. In an era in which public entities are regularly subject to litigation and discovery by private parties, responding to document requests and differentiating among discoverable and undiscoverable material are routine parts of doing business.
"Governments must not only follow the laws, but are under additional constitutional and ethical obligations to their citizens. The [attorney-client] privilege helps insure that conversations between [government] officials and attorneys will be honest and complete. In so doing, it encourages and facilitates the fulfillment of those obligations. . . . `Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.'" Ross v. Memphis, 423 F.3d 596, 602 (6th Cir. 2005), quoting In re
3. Conclusion. For the reasons stated above, we answer the reported question in the negative and remand the case to the Superior Court for further proceedings consistent with our decision.
Similarly, comment 6 to Mass. R. Prof. C. 1.13, which governs lawyers' responsibilities to organizational clients, merely restates what we have held in other contexts, namely that where a government agency is the client, the Legislature may prescribe different laws and regulations concerning client confidentiality. See, e.g., General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 802-803 (1999) (General Elec. Co.) (public records law reflects Legislature's intent to abrogate attorney work-product protections for public records that do not otherwise fall under one of the specified statutory exemptions).
We are equally unmoved by Suffolk's contention that legislative events following our decision in General Elec. Co., supra, bear on our analysis. The Legislature several times has considered but has not enacted proposed amendments to the public records law that would specifically exempt attorney-client materials from the public records laws. See, e.g., 2007 Sen. Doc. No. 832 (amending exemption provision, G. L. c. 4, § 7, Twenty-sixth, by inserting a new exemption for "attorney work product and attorney-client privileged material"); 2007 House Doc. No. 1624 (same); 2005 Sen. Doc. No. 927 (same); 2005 House Doc. No. 758 (same). Contrary to Suffolk's contention, "[l]egislative inaction gives no instructive signal concerning the construction of a statute enacted by a prior Legislature . . . ." Klingel v. Reill, 446 Mass. 80, 86 (2006), quoting Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 496 (1984). We are especially reluctant to attribute meaning to suggested amendments that, apparently, never were put to the vote before the entire General Court. See Franklin v. Albert, 381 Mass. 611, 615-616 (1980) ("The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation") (citation omitted).
Similarly, in District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629 (1985), we rejected the contention of the defendant selectmen that they could shut down an ongoing open meeting in order to hold a closed session with the town attorney for reasons the selectmen acknowledged to fall outside the express statutory exemptions in the open meetings law for closed executive sessions. See G. L. c. 39, §§ 23A-23C. That the Legislature intended certain discussions between public officials and their counsel to take place in the open does not imply that no communication between the public counsel and the public client can ever be confidential. See, e.g., Dunn v. Alabama State Univ. Bd. of Trustees, 628 So.2d 519, 529-530 (Ala. 1993) (attorney's ability to fulfil ethical duties under attorney-client privilege unmarred by Alabama sunshine law); Roberts v. Palmdale, 5 Cal.4th 363, 381 (1993) (neither California's public records nor open meeting law requires public disclosure of written legal opinion from city attorney and distributed to members of city council concerning matter pending before council; "city council needs freedom to confer with its lawyers confidentially in order to obtain adequate advice, just as does a private citizen who seeks legal counsel, even though the scope of confidential meetings is limited by this state's public meeting requirements"); Oklahoma Ass'n of Mun. Attorneys v. State, 577 P.2d 1310, 1315 (Okla. 1978) (finding no legislative intent to abrogate the attorney-client privilege in the open meetings law). But see Neu v. Miami Herald Publ. Co., 462 So.2d 821, 823, 825 (Fla. 1985) (sunshine law applied to "meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party"; "there are no confidential communications to protect" because meetings must be held in public).