The Massachusetts Approach to the Intersection of Governmental Attorney-Client Privilege and Open Government Laws

By Joyce, Anthony B. | Suffolk University Law Review, Fall 2009 | Go to article overview

The Massachusetts Approach to the Intersection of Governmental Attorney-Client Privilege and Open Government Laws


Joyce, Anthony B., Suffolk University Law Review


"Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately.... [W]hen government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation." (1)

I. INTRODUCTION

President Lyndon Johnson secured the public's right to know the inner workings of government by signing the Freedom of Information Act (2) (FOIA) into law in 1966. (3) Congress did not believe that the right to this information was absolute and carved out exemptions in the FOIA retaining privileges that were available at common law. (4) In the decades following the FOIA's passage, a significant judicial tendency emerged: courts began extending the attorney-client privilege to organizational clients, such as corporations, and then, by analogy, to state and local governments. (5) The FOIA represents an attempt to create an open and transparent government. (6) Conversely, the extension of attorney-client privilege to government officials facilitated communication between officials and attorneys while simultaneously ensuring the confidentially of government records. (7) These two developments set the stage for two uncertainties in the law. (8) First, to what extent, if any, does a governmental attorney-client privilege exist, and if it exists, do public records laws negate the privilege? (9)

Often cited as one of the oldest and most necessary privileges, the attorney-client privilege has a long history in the common law. (10) The privilege encourages "open and frank" communications between attorney and client by barring forced disclosure of their private communications. (11) Courts frequently encounter difficulty determining who constitutes a "client" when adjudicating attorney-client privilege controversies, especially in the government context. (12) To further complicate the problem, the nascent governmental attorney-client privilege comes up against a proliferation of legislation requiring open and transparent government. (13)

Laws requiring openness or transparency vary from state to state, but all states have statutes comparable to the FOIA. (14) By making government proceedings and records public, the various statutes intend to create an informed citizenry, (15) provide a means for holding governmental institutions accountable, (16) and build an open and transparent government. (17) These fundamental principles create an inherent tension between open records laws and the governmental attorney-client privilege.

The Supreme Judicial Court of Massachusetts (SJC) recently addressed the tension between public records laws and the governmental attorney-client privilege. (18) In Suffolk Construction Co., v. Division of Capital Asset Management, (19) the SJC resolved the question of whether or not a public records law extinguished the attorney-client privilege for government entities. (20) The SJC's ruling solidified the governmental attorney-client privilege in Massachusetts and resolved a conflict that many states and the federal judiciary are still struggling to resolve. (21)

This Note first explores the history of the attorney-client privilege and the governmental attorney-client privilege in both Massachusetts and the United States. (22) The Note then moves on to an examination of public records laws and the recent Suffolk Construction case that established the "Massachusetts approach." (23) Lastly, this Note explores the SJC's approach to examining the nexus between statutorily created rights to information and common-law shields to such access and, given the underlying policy concerns, whether such an approach is appropriate. (24)

II. HISTORY

A. History of the Attorney-Client Privilege

Courts recognize a privilege for communications between attorney and client in order to facilitate communication, promote complete disclosure so that a client can receive fully informed legal advice without fear of reprisal, and ensure the administration of justice through effective legal representation. …

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