The Massachusetts approach to the intersection of governmental attorney-client privilege and open government laws.

• Author: Joyce, Anthony B.

"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)

1. 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)

2. HISTORY

   1. 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. (25) The attorney-client privilege has been one of the longest standing privileges in American law because of these important policy considerations. (26) In Massachusetts, the privilege traces its origins to a number of early nineteenth-century cases that recognized the importance of the attorney-client privilege and adopted it from English common law. (27)

      The privilege does, however, come at a cost as it inevitably restricts the amount of evidence that a court may consider, thereby restricting the public's fundamental "right to evidence." (28) As a result, courts engage in a balancing test to determine whether the recognition of a privilege will serve a public good that outweighs the harm of excluding evidence. (29) The attorney-client privilege is not absolute and is limited to the extent that it accomplishes the goal of facilitating confidential communications in an effort to obtain informed legal advice. (30) This limitation prevents the privilege from being overly broad to the detriment of allowing all relevant evidence. (31) The attorney-client privilege traditionally dealt with individual clients and their attorneys, but in recent decades courts have extended the privilege to organizations. (32)

   2. Governmental Attorney-Client Privilege

      1. The Corporate and Governmental Attorney-Client Privilege in the United States

         Upjohn Co. v. United States first acknowledged that a corporation can be a client for purposes of the attorney-client privilege. (33) The Upjohn court reasoned that the privilege for organizational clients is grounded in the same policy considerations as the privilege for individuals. (34) When an organizational client exercises the privilege, however, other difficult questions specific to the organizational context may arise, such as who owns the privilege. (35) Most importantly, in an organizational context, there may be some additional countervailing policy disincentives in allowing the privilege; these considerations can become more acute when the organizational client is a government entity--as opposed to a corporation--because of the government's unique role in society. (36)

         After Upjohn, commentators and scholars began considering whether a government entity was sufficiently analogous to an organizational client to extend the attorney-client privilege to it. (37) The Proposed Rule 503 of the Federal Rules of Evidence would have resolved the status of the governmental attorney-client privilege for federal courts by including "public officer" as a type of client, making the attorney-client privilege available to "public and private organizations." (38) Instead, Congress adopted Federal Rule of Evidence 501, allowing courts to formulate privileges from the common law using their discretion in "the light of reason and experience." (39) Proposed Rule 503, although rejected, has influenced a number of states that have adopted its language and courts that look to it as a statement of common law. (40)

         Similar to the rationale underpinning the individual and corporate privileges, the policy of encouraging communication between attorney and client is the driving force behind the governmental attorney-client privilege. (41) One difficulty in examining the government's privilege is that courts presumed, in an almost conclusory manner, that the privilege exists, without providing much justification or detailed analysis. (42) One court has, however, proffered that a functioning government is multifaceted, complex, and necessary for a modern society, and a government entity requires informed legal advice in order to comply with the many laws its work implicates. (43) Additionally, a government entity might not be fully forthcoming if its disclosures were subject to discovery. (44) The government's ability to secure informed and confidential legal advice is also arguably in the public's best interest. (45) Courts have also reasoned that government entities should not be disadvantaged in civil litigation in which their adversaries would have the benefit of the privilege yet they would not. (46)

         There is a fundamental difference between the attorney-client privilege in the individual context and the attorney-client privilege in the governmental context due to the countervailing policies discouraging governmental secrecy. (47) Government openness and transparency are hallmarks of democratic government. (48) Citizens, many would argue, need to be fully informed of their government's inner workings to be able to effectively hold government entities and officials accountable. (49) The incentives to encourage communication in the corporate context may also differ from the government context. (50)

         In light of the additional considerations for allowing a governmental attorney-client privilege, it remains to be seen whether a governmental attorney-client privilege will have as strong and enduring of a legacy as the traditional attorney-client privilege. (51) Critics seem skeptical and cautious about a governmental attorney-client privilege, while other commentators extol its necessity. (52) This uncertainty, however, has not impacted what appears to be a mounting acceptance of the privilege in most jurisdictions. (53)

      2. Governmental Attorney-Client Privilege in Massachusetts

         Prior to the Suffolk decision, the status of the governmental attorney-client privilege in Massachusetts was uncertain. (54) The existence of public records laws and open meeting laws undoubtedly contributed to this uncertainty because these statutes required disclosure. (55) A number of scholars and commentators acknowledged this difficulty in applying the governmental attorney-client privilege in light of statutes requiring disclosure by the government. (56) Although the majority of Massachusetts cases dealing with governmental attorney-client privilege occurred after the legislature enacted...