General Elec. Co. v. Department of Environmental Protection

• Decision Date: 24 June 1999
• Citation: 429 Mass. 798,711 N.E.2d 589
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GENERAL ELECTRIC COMPANY v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another. 1

Page 589

711 N.E.2d 589

429 Mass. 798

GENERAL ELECTRIC COMPANY v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.

¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 6, 1999.

Decided June 24, 1999.

Thomas J. Dougherty (David S. Clancy & Larissa E. Murphy, Boston, with him) for the plaintiff.

William L. Pardee, Assistant Attorney General (Richard D. Hecht, Assistant Attorney General, with him) for the defendants.

The following submitted briefs for amici curiae:

Carolyn K. Ridge-MacWilliam, for Boston, for Supervisor of Public Records.

Cynthia L. Amara, Boston & Loretta M. Smith, Winthrop, for New England Legal Foundation.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

GREANEY, J.

The principal issue we consider in this case is whether a governmental entity subject to the public records statute, G.L. c. 66, § 10, may withhold from public disclosure documents and other records on the basis of an implied exemption for materials covered by the work product doctrine. ² We granted the parties' applications for direct appellate review. We now vacate that part of the judgment declaring that the Department of Environmental Protection "was not incorrect, as a matter of law, to assert ... that it may withhold documents requested under G.L. c. 66, § 10 ... if they fall within the scope of the common-law work-product privilege," and affirm that part of the judgment declaring that the defendant "may withhold documents requested under G.L. c. 66, § 10 ... if they meet the requirements of G.L. c. 4, § 7, [Twenty-sixth] (d ), even if they were shared with the United States Environmental Protection Agency [EPA] as part of coordinated investigative or remedial efforts with that agency pertaining to environmental contamination allegedly related to the [plaintiff's] Pittsfield facility."

This case arises from a dispute between the plaintiff, the defendant, and various Federal agencies regarding the appropriate means of investigating and cleaning up pollution allegedly created by a manufacturing facility owned by the plaintiff in Pittsfield, and affecting areas in and around the Housatonic River. The parties dispute the propriety of the defendant's support for the EPA's proposal that all or part of the contaminated areas be designated as "Superfund" sites. ³

During the EPA's comment period on its proposal, the plaintiff requested from the defendant pursuant to the public records statute documents allegedly relevant to the proposed designation. When the defendant responded to the plaintiff's request with a limited set of documents, the plaintiff commenced an action in the Superior Court seeking to expedite access to the defendant's records prior to the close of the comment period, and for declaratory relief. The judge ordered the defendant to produce nonexempt documents related to the sites, and to provide an index of withheld documents. The defendant produced approximately 230 documents and provided an index of 419 withheld documents, or portions of documents, many of which were identified as work product.

The judge then entered an order of reference to a special master directing him to ascertain whether the withheld documents fell within the scope of certain statutory exemptions to the public records act, or were privileged, as the defendant claimed. ⁴ The judge reserved the question whether, as matter of law, the defendant's claimed exemptions and privileges could properly be asserted in response to a public records request. ⁵

The parties then filed cross motions for summary judgment. The judge allowed the defendant's motion, concluding that because the public records statute should not be read as an implicit legislative abrogation of well-established legal doctrines, work product enjoys an implied exemption from disclosure under the statute. The judge further concluded that, in the particular circumstances of this case, where the defendant and the EPA have coordinated their investigatory and enforcement activities regarding the contaminated sites, and did so at the insistence of the plaintiff, the defendant was entitled to share documents with the EPA without waiving its right to assert that the documents were protected from disclosure under G.L. c. 4, § 7, Twenty-sixth (d ).

1. Our conclusion that materials privileged as work product pursuant to Mass. R. Civ. P. 26(b)(3), 365 Mass. 772 (1974), are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption, is based on several considerations. General Laws c. 66, § 10, provides that "[e]very person having custody of any public record ... shall, at reasonable times and without unreasonable delay, permit it ... to be inspected and examined by any person." The statute is broad in scope, and by the definition of "public record," expressly mandates public access to "all" records "made or received by any officer or employee of any agency ... of the commonwealth" "unless such [records] fall within [one or more enumerated] exemptions." G.L. c. 4, § 7, Twenty-sixth. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614, 609 N.E.2d 460 (1993) ("Public records are broadly defined and include all documentary materials made or received by an officer or employee of any corporation or public entity of the Commonwealth, unless one of [the] statutory exemptions is applicable"); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 430-431, 446 N.E.2d 1051 (1983) (public records broadly defined as records and documents in possession of public officials); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61, 354 N.E.2d 872 (1976) (documents presumed to be public records when possessed by public entity). In keeping with its fundamental purpose to ensure public access to government documents, the statute establishes "a presumption that the record sought is public," and places the burden on the custodian of the record "to prove with specificity the exemption which applies." G.L. c. 66, § 10 (c ). See District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511, 646 N.E.2d 127 (1995). Because of the statute's presumption in favor of disclosure, we have said that the statutory exemptions must be strictly and narrowly construed. Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625, 404 N.E.2d 1254 (1980). See Attorney Gen. v. Assessors of Woburn, 375 Mass. 430, 432, 378 N.E.2d 45 (1978).

The plain language of the statute manifests a legislative intent to provide broad public access to government documents subject only to limited exceptions. Generally, "[w]here the language of a statute is clear and unambiguous, it is conclusive as to legislative intent." Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285, 667 N.E.2d 869 (1996). See Commonwealth v. Jones, 417 Mass. 661, 664, 632 N.E.2d 408 (1994) (refusing to read into a statute an implied limitation, because "explicit language of the statute unambiguously manifests a legislative intent" that no such limitation apply); Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704, 459 N.E.2d 772 (1984) ("the statutory language is the principal source of insight into legislative purpose"). Here, the statute's clear and unambiguous language mandates disclosure of requested public records limited only by the definition of public record found in G.L. c. 4, § 7, Twenty-sixth. Pyle v School Comm. of S. Hadley, supra at 286, 667 N.E.2d 869. "Whatever may have been the common law in the absence of statute, we are unable to discover anything in the nature or purpose of the statute specially applicable to these records ... or in [the public records statute], applicable to public records generally, which justifies us in qualifying the broad and plain language of the Legislature by importing into it conditions and limitations which are not expressed and which are not necessary in order to give effect to its main purpose." Direct-Mail Serv., Inc. v. Registrar of Motor Vehicles, 296 Mass. 353, 356, 5 N.E.2d 545 (1937).

Although generally we "will not engage ... in an analysis of a statute's legislative history to seek justification for a particular construction, where the statutory language at issue suggests no ambiguity of meaning," Massachusetts Community College Council MTA/NEA v. Labor Relations Comm'n, 402 Mass. 352, 354, 522 N.E.2d 416 (1988), an examination of the legislative history supports our interpretation.

"Exemption (k )" was a proposed amendment to 1973 House Doc. No. 7178, the bill that ultimately became the Public Records Act. The amendment, proposed by the House Ways and Means Committee, 1973 House Doc. No. 7433, sought to shield from public disclosure all "records pertaining to any civil litigation in which an agency ... is involved, except in response to a subpoena, and only prior to final judicial determination or settlement of such litigation." The House considered and passed the bill with the proposed amendment, but the Senate Committee on Ways and Means recommended that exemption (k ) be deleted, and the House bill was passed by the Senate without that amendment. Senate J. 2579. A conference committee recommended that the Senate's position be adopted, and the bill was ultimately passed without exemption (k ). As one commentator has stated, "All efforts to obtain a litigation or express public attorney's work product exemption have ultimately been rejected." A. Cella, Administrative Law and Practice § 1182, at 582 n. 2 (1986). ⁶ The express deletion of this provision confirms our conclusion that the Legislature did not intend implicitly to incorporate a work product exemption.

The defendant correctly points out that the legislative history does not explain why the Legislature rejected an express exemption for work product. Nonetheless, we do not "read into the statute a provision which the Legislature...