On May 15, 2015 the Supreme Judicial Court released its opinion in DaRosa & others v. City of New Bedford, Monsanto Company & others, addressing the question of how the work-product doctrine and public records laws interact when government entities are involved in litigation. The case has negative implications for those, like our firm, who routinely litigate against public agencies in employment and other matters. It also further undercuts the effectiveness of the already-weak Massachusetts Public Records Law.
In 1999, in a case called General Electric Company v. Department of Environmental Protection, the SJC held that privileged work-product materials are subject to disclosure under the public records statute unless they fall under one of the specific statutory exemptions listed in Mass. G. L.c. 4, § 7, Twenty-sixth. The court rejected the lower court’s reasoning that there is an implied exemption in the public records statute that covers work product. It noted that although the Federal FOIA law explicitly exempts from disclosure internal documents that would not be available to parties in litigation with the government agency, the Massachusetts public records law, although modeled after FOIA, did not contain that language, indicating the legislature intended to allow work-product to be considered a public record unless otherwise exempted by statute. As a practical matter, the General Electric opinion meant that litigants engaged in suits with the government could circumvent the work-product protection and obtain government documents via public records requests that they could not obtain in the normal course of discovery.
In Da Rosa the SJC revisited General Electric. The SJC noted that in the years since General Electric it has walked back on the idea that the public records law has no implied exemptions, recognizing implied exemptions for materials protected by the attorney-client privilege and documents covered by protective orders. However, instead of reading an implied protection for work product into the public records statute, in Da Rosa the SJC determined that one of the law’s statutory exemptions in fact covers nearly all work-product. In doing so the SJC avoided directly overruling General Electric, while still protecting nearly all work product from release under the public records law.
The Court looked at exemption d, the so-called “policy deliberation” exemption, which exempts “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but [not] reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” The SJC determined that opinion work product (as that term is understood under Mass. R. Civ. P. 26(b)(3)) is always related to policy positions being developed by the agency and is thus always exempt from disclosure under the public records law. Applying the plain language of exemption d, the Court then determined that all fact work product is also exempt except where contained in a final factual study or report: “Where fact work product is not contained in a ‘factual study or report’ or where it is contained in a ‘factual study or report’ that is not ‘reasonably completed,’ then it, too, is protected from disclosure.”
Where does this leave the state of the law for those of us who routinely litigate against government agencies? In the end, the only work-product that still constitutes a “public record” under the public record law appears to be the “reasonably completed factual studies or reports” explicitly exempted from the reach of the law by exemption d. The SJC’s opinion mentions “other fact work product that has been made or received by a State or local government employee” that must be disclosed, but that statement seems plainly contradicted by the language of the case quoted above. The SJC has therefore almost entirely overruled General Electric and eliminated litigants’ back-road access to non-discoverable documents via the public records law.
If there is any silver lining in this case for litigants against the government, it is that the Court explicitly held that government agencies must disclose the fact work product that is available under the public records law to a litigant in the course of discovery. Now litigants may receive the factual studies and reports to which they are entitled under the public records law in the course of discovery, rather than having to make a separate public records request for those documents.
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