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Municipal Government SJC: Attorney-client privilege extends to public officials
In a unanimous opinion, the Supreme Judicial Court ruled on July 13 that government communications covered by attorney-client privilege are not subject to the state’s public records law.
“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 [attorney-client] privilege for those subject to the statute,” the court stated in its decision of Suffolk Construction Co. Inc. vs. Division of Capital Asset Management (449 Mass. 444, 446 [2007]).
The case involved litigation between Suffolk Construction and the Division of Capital Asset Management related to the renovation of a courthouse in Boston. During the dispute, the general contractor made two public records requests for documents concerning the project. While the state agency produced hundreds of thousands of documents, it withheld several on the grounds that they were protected by attorney-client privilege.
Suffolk Construction argued that, because there is no explicit exemption in the public records statute allowing a public agency to withhold documents based on attorney-client privilege, such documents were public.
The court disagreed, stating, “[b]ecause the attorney-client privilege serves the same salutary purpose in the public as in the private realm, it is now well established that communications between government agencies and agency counsel are protected by the privilege as long as they are made confidentially and for the purpose of obtaining legal advice for the agency.”
The court also disagreed with Suffolk’s contention that because the SJC had previously declined to find an exemption in the public records law for information otherwise protected by the attorney work-product doctrine, the court should do the same with respect to attorney-client privilege. The court distinguished between the two doctrines, stating that attorney-client privilege protects communications from lawyer to client, whether it occurs in litigation or not, to encourage free communication with counsel, whereas the work-product doctrine encompasses much that occurs outside client communications and is limited to materials prepared in anticipation of litigation.
The SJC’s Suffolk decision means that advice provided to local officials by municipal counsel will not be subject to disclosure pursuant to public records requests.
Municipal officials are still advised to consult with counsel regarding how to respond to requests for municipal documents that may include those exempted from disclosure under the attorney-client privilege.
The City Solicitors and Town Counsel Association, which filed an amicus brief in this case, may also serve as a resource for local officials.
Municipal Government SJC: Attorney-client privilege extends to public officials
SJC: Attorney-client privilege extends to public officials
In a unanimous opinion, the Supreme Judicial Court ruled on July 13 that government communications covered by attorney-client privilege are not subject to the state’s public records law.
“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 [attorney-client] privilege for those subject to the statute,” the court stated in its decision of Suffolk Construction Co. Inc. vs. Division of Capital Asset Management (449 Mass. 444, 446 [2007]).
The case involved litigation between Suffolk Construction and the Division of Capital Asset Management related to the renovation of a courthouse in Boston. During the dispute, the general contractor made two public records requests for documents concerning the project. While the state agency produced hundreds of thousands of documents, it withheld several on the grounds that they were protected by attorney-client privilege.
Suffolk Construction argued that, because there is no explicit exemption in the public records statute allowing a public agency to withhold documents based on attorney-client privilege, such documents were public.
The court disagreed, stating, “[b]ecause the attorney-client privilege serves the same salutary purpose in the public as in the private realm, it is now well established that communications between government agencies and agency counsel are protected by the privilege as long as they are made confidentially and for the purpose of obtaining legal advice for the agency.”
The court also disagreed with Suffolk’s contention that because the SJC had previously declined to find an exemption in the public records law for information otherwise protected by the attorney work-product doctrine, the court should do the same with respect to attorney-client privilege. The court distinguished between the two doctrines, stating that attorney-client privilege protects communications from lawyer to client, whether it occurs in litigation or not, to encourage free communication with counsel, whereas the work-product doctrine encompasses much that occurs outside client communications and is limited to materials prepared in anticipation of litigation.
The SJC’s Suffolk decision means that advice provided to local officials by municipal counsel will not be subject to disclosure pursuant to public records requests.
Municipal officials are still advised to consult with counsel regarding how to respond to requests for municipal documents that may include those exempted from disclosure under the attorney-client privilege.
The City Solicitors and Town Counsel Association, which filed an amicus brief in this case, may also serve as a resource for local officials.
