In its 1999 decision in GE v. DEP, the SJC surprised most Massachusetts lawyers by ruling that the Commonwealth’s Public Records Act (our version of FOIA) did not have an exemption for work product materials and that it had no discretion to read any implied exemptions into the Act. Yesterday, in DaRosa v. New Bedford, the SJC, in the immortal words of David Byrne, asked itself “My God, what have I done.”
Realizing that allowing parties in litigation with government agencies to obtain through the Act what they could not obtain in discovery made no sense, the SJC eviscerated GE. (That’s a technical term for what the SJC does when it recognizes that a prior decision was plain wrong, but for some reason does not want to reverse it.)
Without formally overruling GE, the SJC did state that:
We no longer hold to the view declared in General Electric that there are no implied exemptions to the public records act….
Having gone that far, the SJC did not actually rely on any implied exemption from the Act for work product. Instead, the Court simply concluded that, in most circumstances, work product constitutes “policy deliberation” which is explicitly exempt from the Act.
So what is the rule? Opinion work product will be protected under almost all circumstances, though the Court stopped short of calling the protection “absolute.” Fact work product is protected as to uncompleted reports and remains protected as to completed reports, if and to the extent that the facts are “interwoven with opinions or with analysis leading to opinions”.
You may wonder at the significance of DaRosa to environmental law practitioners. In response, I’ll only note that both GE and DaRosa were in fact Superfund cases. These issues arise with some regularity. Now, lawyers representing parties opposed to state agencies will not be able to use the Public Records Act as an end-run around discovery privileges. This might disadvantage some of my clients, but it’s difficult to say that it’s the wrong result.