October 22, 2019

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Public Records in Massachusetts: Legislature looks to Improve Access and Top Court Clarifies Attorney-Client and Work-Product Protections

The combined efforts of Massachusetts’ highest court, its legislature, and the Governor’s office are clarifying and modernizing Massachusetts public records law, which is considered by some to be one of the weakest in the country.  Pending legislation could change that, making it easier to obtain records and enforce the law’s provisions.  At the same time, a recent decision of the Supreme Judicial Court of Massachusetts clarifies the scope of the “policy deliberation” exemption to Massachusetts’ public records law and the applicability of the attorney-client privilege and work-product doctrine.  Governor Charlie Baker recently weighed in as well, with new procedures aimed at increasing transparency and streamlining responses to public records requests.  These developments may have a significant impact on citizens, businesses, municipalities, and litigants.

The Massachusetts Public Records Law, M.G.L. c. 66, § 10, was passed contemporaneously with the better known federal Freedom of Information Act, in 1966.  Both FOIA and the Massachusetts law were last significantly updated in the early 1970s.  The Massachusetts law applies to records made or received by a Massachusetts governmental entity and sets forth procedures that allow any member of the public to request those records, subject to a few exemptions.  The law encompasses records created or received by any state agency or political subdivision (such as towns and cities), but excludes the legislative and judicial branches. 

FOIA and the Massachusetts Public Records Law were both designed to improve public access to information, as part of a wave of “open government” reforms that took place several decades ago.  But Massachusetts has a long history of frustrating attempts to access public records with exorbitant fees and lengthy waits.  The State Integrity Project gives Massachusetts an “F” for its access to public information, and in June, 2015, Investigative Reporters and Editors named the Massachusetts State Police as the winner of its “Golden Padlock Award,” which recognizes the most secretive U.S. agency or individual.  The ACLU and Boston Globe have both reported on the law’s failings for years, documenting high fees and long delays.  In its July 18 edition, the Boston Globe reported the experience of a Taunton attorney who sought breath-alcohol data from multiple states.  Three states offered the data for free, and another for $75.  The price for the same data in Massachusetts?  About $2.7 million.  These costs shield agencies from public scrutiny, hamper litigation, and frustrate justice.

Faced with public outcry over the situation, it appears that the Massachusetts Legislature may take action.  On July 15, a bill emerged from a joint House-Senate committee on State Administration and Regulatory Oversight that would significantly revamp the Massachusetts Public Records Law (Bill H.3665).  Among other things, the proposed bill would:

  • Cap fees for certain public records;

  • Make it easier for requesters to get documents electronically;

  • Require each agency to designate “records access officers” to handle requests, with a similar provision for cities and towns;

  • Give agencies a little more time to respond to requests (15 days instead of 10);

  • Impose fines for refusal or neglect in providing public records;

  • Give public records cases priority over other proceedings in state courts; and

  • Grant attorney’s fees to requesters who were wrongfully prevented from obtaining public records.

These provisions would help to cap fees, improve responsiveness, and give some “teeth” to the public records law.  But while open-government advocacy organizations laud the changes, municipalities are concerned about the impact and have raised concerns over an “unfunded mandate” imposed on towns and cities.  Next, the bill heads to the House Ways and Means committee.  Although there were early indications of support in both the House and Senate, the House decided to wait until later this year to vote on the bill, citing complaints from cities and towns that the new rules would be expensive to implement.     

The judiciary also recently weighed in on access to public records in Massachusetts, providing protection for certain types of public records sought by a party during litigation.  On May 15, 2015, the Supreme Judicial Court issued an interlocutory order in John DaRosa, v. City of New Bedford, 471 Mass. 446 (2015).  The underlying case involves a dispute over liability for environmental cleanup costs resulting from soil contamination.  Property owners alleged that the city of New Bedford operated a nearby site as a dump for industrial and other waste.  Seeking costs and damages related to the contamination, the property owners sued the city in 2008.  The city solicitor retained an environmental consulting firm, TRC Environmental Corporation, to assess issues related to the claims and identify potential sources of contamination.  Next, in 2009, the city filed multiple third-party complaints seeking damages and cost recovery from multiple third-party defendants.   

During discovery, various third-party defendants requested documents from the city that were created by TRC Environmental during its investigation of the site.  The city claimed that such documents were subject to attorney-client privilege and/or work-product protections and declined to produce them.  Third-party defendants objected and asked the court to compel the city to produce the TRC documents.  The Superior Court sided with the third-party defendants and ordered the documents produced.  The city sought interlocutory appeal, and the SJC reversed, ruling that certain public records are subject to the attorney-client privilege and work-product protections and are not subject to disclosure.

The SJC decision rests heavily on a re-interpretation of the Massachusetts public records law and its prior decision in General Electric Co. v. DEP, 429 Mass. 798 (1999), which had held that there are no “implied exemptions” to the Massachusetts public records act.  The court re-examined the text and historical context of Massachusetts’ public records law, along with the scope of the “policy deliberation” exemption.  Comparing the Massachusetts law to FOIA, the court reasoned that the purpose of the policy deliberation exemption in both statutes is to allow a frank, internal discourse on legal and policy matters.  When an agency is engaged in litigation, the court reasoned, documents discussing “litigation strategy and case preparation fall within the rubric of ‘policy deliberation.’”  As a result, the court held that public records in the form of opinion work product created in preparation or pendency of litigation are protected from disclosure, along with draft reports and other such documents that are not “reasonably complete.” 

The court went on to draw more nuanced distinctions for fact work product, noting that while a party may be compelled to produce a “reasonably completed factual study or report,” portions of that report interwoven with opinion or analysis may be exempt from discovery.  Finally, the court held that there is no need for parties to obtain such information through a public records request – the ordinary avenues of discovery are sufficient.  And by corollary, the court extended its protections to records sought through public records requests, as opposed to during litigation.

After DaRosa, public records in Massachusetts will have both attorney-client and work-product protections similar to those that have historically applied to private party documents during litigation under rule 26(b)(3).  Importantly, public records will also have such protections outside of litigation.  But in both cases, the public and litigants are still entitled to obtain “reasonably completed factual studies or reports.”  Pending legislation, as currently drafted, would not affect the Supreme Judicial Court’s decision to grant attorney-client and work product protections to certain public records.  Rather, the court’s recent decision and the legislature’s proposed changes would work in concert to enhance public access to information while protecting certain documents prepared with an eye towards litigation. 

It will take time for DaRosa to play out and Bill H.3665 to work its way through the legislative chambers.  In the meantime, Governor Baker has taken action with a more immediate effect.  On July 30, 2015, the Governor’s Office announced new public records procedures for state agencies.  According to the Governor’s press release, the new procedures will help to lower costs and streamline responses by state agencies to public records requests.  Specific actions include:

  • Secretariats and agencies are required to designate a Records Access Officer to receive, and coordinate requests, as well as assure compliance with the public records law.

  • Notification within five days that a request will take more than 10 days and/or $10 to produce.

  • A goal of fulfilling requests in “no more than eight weeks” with extensions “being explained to a requester in writing.”

  • Agencies will regularly make frequently requested records available on their websites, in electronic, searchable formats when possible.

  • Search and retrieval fees waived for standard public records requests,

  • First four hours of work on more complex requests provided at no charge, then at no more than $25 per hour.

  • Standardized production costs across agencies, including no charge for electronic copies and the first four “precisely defined” documents; 10 cents per-page for black and white hard copies, and 50 cents per-page for color copies.

The Governor’s actions mirror some, but not all, of the policies laid out in pending legislation and may provide some short-term relief to those requesting public records in Massachusetts.  Not to be overshadowed, Secretary of State William Galvin filed a ballot initiative to strengthen the public records law, following through on a campaign promise.  Along with the court’s decision in DaRosa and proposed Bill H.3665, the Governor’s action and the possible ballot initiative are a welcome improvements to an outdated law that should help to level the public records playing field in Massachusetts. 

© 2019 Beveridge & Diamond PC


About this Author

Marc J. Goldstein, Environmental Attorney, Beveridge Diamond law firm

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects.  He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office.

Brook J. Detterman, Beveridge Diamond, Climate Change Lawyer, Liabilities Law

Brook Detterman's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to negotiate, structure, and implement transactions related to climate change and environmental commodities markets.  He regularly counsels clients during transactions under the EU ETS, California’s cap and trade program (AB 32), and other U.S. and international emissions trading programs. Brook also supports clients in the renewable energy industry, providing advice on renewable energy policies, regulations, and incentive programs and counseling clients on the environmental aspects of renewable energy projects and transactions.  Brook’s experience also includes complex environmental litigation, and he has served as litigation and appellate counsel during dozens of proceedings in state and federal courts across the country.

Brook's climate change and renewable energy experience includes:

  • Providing advice to a broad range of clients on state and federal renewable energy policies, incentives, and regulations.
  • Advising clients during the structuring and development of numerous carbon offset and renewable energy projects and transactions, including U.S. forest offset projects, hydroelectric projects under the Clean Development Mechanism, domestic landfill gas-to-energy development, and a novel trans-border carbon offset generation project involving CFC destruction.
  • Representing Native American tribes and corporations during the development of large carbon offset projects on tribal forest lands.
  • Drafting model renewable portfolio standards.
  • Developing regulatory guidance and strategy for over 30 energy companies on a wide range of environmental issues, including state and federal greenhouse gas regulations.
  • Counseling clients on carbon accounting, social cost of carbon metrics, and climate risk disclosure.

Prior to joining the firm, Brook was an associate in the environmental department of a large international law firm.

Brook served as a law clerk at the U.S. Department of Justice, Environment and Natural Resources Division, where he worked on a range of legal issues arising under federal environmental law, including CWA wetlands jurisdiction, CERCLA liability, RCRA compliance, and NEPA requirements. Brook was Associate Editor of the Lewis & Clark Law School Environmental Law Review and served on the Moot Court Honor Board.  At Dartmouth College, Brook worked as a teaching assistant in Environmental Studies Department, and as a research assistant in the Biology Department.

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