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| SJC Rules in Suffok Construction Co., Inc. v. Division of Capital Asset Management
On July 13, the SJC unanimously ruled in Suffok Construction Co., Inc. v. Division of Capital Asset Management that "by enacting the public records law, G.L. c. 66, § 10, and G.L. c. 4, § 7, Twenty-sixth," the Legislature did not intend "to extinguish the protection provided by the attorney-client privilege to public officers or employees and governmental entities subject to that law." In other words, attorney-client privileged materials need not be produced in response to a public records request, even if not within one of the express exemptions in the statute. The SJC also ruled, more clearly and explicitly than in any prior case, that government clients do in fact enjoy the attorney-client privilege. This is a very important decision since this argument has been hanging over government attorneys' and clients' heads ever since the 1999 SJC General Electric decision holding that attorney work product was not per se exempt from disclosure under the public records laws. Consistent with its long-standing support for preserving attorney-client privilege, the BBA filed an amicus brief last August supporting DCAM's position on the policy ground that documents of government agencies and employees should enjoy protection from disclosure under the public records law if those documents are subject to the attorney-client privilege. The case was before the SJC on report from the Suffolk Superior Court, which denied a request by Suffolk Construction for an injunction compelling DCAM to produce, pursuant to the public records statute, what DCAM claimed were documents protected by the attorney-client privilege. Special thanks to Edward V. Colbert, III of Looney & Grossman for drafting the brief on behalf of the BBA. |