No. 05-3600-A.Commonwealth of Massachusetts Superior Court. SUFFOLK, SS.
December 15, 2005.
REPORT OF CASE PURSUANT TO G.L. c. 231, § 111 and MASS. R. CIV. P. 64(a).
SIKORA, JR., J.
REPORT.
Pursuant to G.L. c. 231, § 111, second paragraph, and Mass. R. Civ. P. 64(a), second sentence, the court hereby reports the following question of law to the Appeals Court:
Do the provisions of the public records law, comprised of G.L. c. 66, § 10 and G.L. c. 4, § 7(26), preclude the protection of the attorney-client privilege from records made or received by any officer or employee of any agency of the Commonwealth?
FACTUAL BACKGROUND.
The verified complaint with exhibits, the parties’ memoranda of law with attachments including copies of substantial correspondence, their affidavit material, and their acknowledgments in the memoranda provide the following factual background. The plaintiff Suffolk Construction Company, Inc., served as general contractor for the project of reconstruction, renovation, and refurbishment of the Suffolk County Courthouse during the period 2001 through 2004 (“the Project”). Suffolk Construction, a joint venturer, and 16 subcontractors, performed the renovation and modernization work. The original contract value of the Project approximated $96,320.00.
Suffolk Construction alleges that, in the course of the work, its subcontractors and it “encountered enormous amounts of previously unknown or differing site conditions” absent from the drawings, bid package or Project specifications; that the unexpected conditions forced Suffolk Construction to re-engineer and to redesign many aspects of the work; and that they generated substantial extra and differing work, delays, increased costs, and lost productivity. Suffolk Construction alleges further that it submitted requests to the Massachusetts Division of Capital Asset Management (“DCAM”) for change orders and increases in the contract price and time period, including the omnibus proposed change order 704 (“PCO 704”), but that DCAM, its architects, and its consultants evaluated PCO 704 and finally denied it in or about April of 2004.
On October 7, 2004, under authority of the Public Records Law, G.L. c. 66, § 10 and G.L. c. 4, § 7, Suffolk Construction sought to inspect and to review all records upon which DCAM based its denial of PCO 704, including all documents from DCAM and its consultants. The requests were categorical. They included “[a]ll documents that are in the custody of [the] Executive Office of Administration and Finance and/or DCAM which relate to [the consultants] and the Massachusetts State Project [for] Historic Renovation of the Suffolk County Courthouse.” Other requested categories were (1) all documents in the hands of the main consultants, and (2) “[a]ll communications with any entities regarding this request.”
Over the ensuing 11 months DCAM produced documents by an ongoing incremental process. It asserts that it has disclosed more than 500,000 pages of material. By an evolving privilege log, it presently has identified 189 documents from public inspection by reason of their character as privileged communication between attorney and client.
Suffolk Construction has estimated the value of the disputed changes to approximate 52 million dollars. It argues that it “cannot fully and properly defend against” the claims of multiple subcontractors for compensation labor and materials contributed to the changed and extra renovation work “without the documentation and understanding of DCAM’s denial” of the omnibus PCO 704. Memorandum in Support of Preliminary Injunctive Relief at 23-24.
Four days after the commencement of the present action (in August of 2005) for declaratory and injunctive remedies for its public records law requests, Suffolk Construction began a separate suit for damages upon the merits of its claims for compensation for the changed and extra Project work.
REASONING.
1. By separate ruling and reasoning, I have DENIED Suffolk Construction Company’s application for an affirmative preliminary injunction compelling disclosure of all material for which DCAM asserts protection by the attorney-client privilege. As contemplated by the enabling statute and rule, I conclude that my interlocutory ruling upon the reported question would so affect the merits of this case that an appellate court should resolve the question in advance of any further proceedings.
2. More specifically, the reported question constitutes the sole and decisive issue of this action. The plaintiff Suffolk Construction Company, Inc., has brought it against the defendant Massachusetts Division of Capital Asset Management as a suit for the exclusive remedy of a declaration and order in favor of its right to discover a substantial body of records made or received by the Division. Suffolk Construction Company believes the requested records to contain critical information of the reasons for the denial of its proposed large change order and of accompanying compensation for work performed over several years upon the Suffolk County Courthouse Renovation Project. The Division takes the position that the contested documents are entitled to the protection of the traditional attorney-client privilege. It itemizes 189 such documents (it has produced voluminous other uncontested records and documents). The case now reduces to the sole question of law reported.
3. The decision of that question of law then not only affects the merits of the controversy; it conclusively resolves them. (If an attorney-client privilege exists for the contested records, the inclusion and exclusion of specific items may remain as a factfinding task for a judge or discovery master in camera.) No further factfinding or other trial court work appears necessary for resolution of the case. The question of law appears likely to turn upon interpretation of the public records law provisions and upon the precedent of General Electric Company v.Department of Environmental Protection, 429 Mass. 798, 801-806
(1999).
4. In addition, the court has invited the parties’ attention to a potential constitutional issue thus far unaddressed in the Superior Court papers: whether the abrogation of the attorney-client privilege from all records made or received by officers or employees of state agencies, as proposed by plaintiff Suffolk Construction Company, would intrude so deeply into the work of the executive branch of the Commonwealth as to violate the doctrine of separation of powers embodied in Article 30 of the Declaration of Rights of the Massachusetts Constitution.
5. The reported question appears to be one capable of repetition yet likely to evade review. Typically a plaintiff in the position of Suffolk Construction Company will commence an action of the present design under the public records law as a preliminary discovery effort of broader scope than the range permitted by the Massachusetts Rules of Civil Procedure, specifically Rules 34 and 26. A suit upon the merits will follow. Discovery under the Rules of Civil Procedure in the merits case and/or settlement of the merits case, or the result in the merits case (if satisfactory to the plaintiff), will tend to bring the public records law action to a conclusion without appellate consideration. See e.g., Kiewit-Atkinson-Kenny, Joint Venturev. Massachusetts Water Resources Authority, 15 Mass. L. Rptr. 101, 2002 WL 2017107 (Mass.Super.) (a report of the present issue by Justice vanGestel subsequently precluded by settlement of the merits litigation).
6. The reported question appears to be novel and significant.
ORDER.
1. In the record accompanying the reported question to the appellate courts, the parties shall include the following Superior Court papers:
(a) the verified complaint;
(b) plaintiff’s memorandum of law in support of preliminary injunctive relief;
(c) defendant’s opposition to preliminary injunctive relief;
(d) plaintiff’s memorandum in reply to defendant’s opposition; and
(e) the court’s ruling and reasoning for denial of preliminary injunctive relief.
2. The report of the question in the present action, Suffolk CA 05-3600-A, shall not stay the proceedings in the related action, Suffolk CA 05-3631-E between the parties upon the merits of their dispute. Discovery in that merits action may go forward under the usual standards of the Massachusetts Rules of Civil Procedure.