The Legislature’s Special Commission Concerning State and County Buildings (Commission), of which the named plaintiffs are the members, issued a summons to the respondent Endicott Peabody, a member of the Bar, formerly Governor of the Commonwealth, requesting him to appear and testify before the Commission and to produce certain documents in his possession or control. The respondent did not object to appearing in response to the summons, but he declined to produce the documents specified, although he did not invoke the privilege against self-incrimination and any claim of the attorney-client privilege was abandoned. The Commission accordingly commenced proceedings to enforce the documentary part of the summons, and the matter was heard by a judge of the Superior Court. The judge refused all enforcement but, assuming provisionally that he might be held wrong in that decision, went on to suggest which items of the summons should be enforced and which refused enforcement. On expedited appeal to this court, we entered a brief Order holding that the summons should be enforced according to its terms, except for certain items, as to which thе Commission would be entitled at its request to another hearing in the Superior Court where its claims to production could be further considered and ruled on. We stated that a rescript and an opinion or opinions would follow.
1.
Commission’s Functions and Program.
By early 1978, there had been intimations in the press and elsewhere about corruption in the award and supervision of construction contracts by agencies of government; criminal proceedings had been instituted against certain individuals alleged to be implicated; and revelatory hearings had been conducted by
The Commission had discretion what to investigate and study within the range of the resolve, but there was one stated requirement or duty, namely, that it “shall include” in its investigation and study “consideration of the awarding, implementation and the subsequent events concerning the contract between the firm of McKee-Berger-Mansueto, Inc. [MBM] and the commonwealth relating to the management of construction of certain buildings on the Boston campus of the University of Massachusetts.” The reference was to a contract of 1969 under which MBM, an architectural firm with its principal office in New York, received fees of about $5,000,000 for managing — in place of the State Bureau of Building Construction which ordinarily carried out that function — the construction of the university extension costing some $150,000,000, said to be the largest construction project undertaken by the Commonwealth to that time.
Under way about July, 1978, the program of the Commission, as described by its counsel, was first to consider,
2.
Commissions Proposed MBM Investigation.
Regarding MBM’s operations in Massachusetts, including its cоnstruction-management contract with the Commonwealth, the Commission wanted to study whether or how, through contacts with or payments or contributions to persons holding official positions or others who might influence such persons, MBM might have been able to prejudice agency actions in the award of contracts or in the supervision of their performance, as well as to prevent official investigation of performance or to procure favorable official report thereof. That information on these topics might feasibly be secured through Commission investigation was suggested by a number of public records (besides many private sources available to the Commission). Notable among these was the trial in 1977 of State Senators Joseph J. C. DiCarlo and Ronald C. MacKenzie in the Federal District Court, at which the respondent testified; also the above-mentioned hearings in 1978 by the subcommittee of the Joint Legislative Committee on Post Audit and Oversight, at which the respondent testified and produced certain documents. As the DiCarlo-MacKenzie trial assumed importance in the judge’s decision below, we add some detail about it, following the aсcount of the evidence in
United States
v.
DiCarlo,
3. Summons. MBM had retained the respondent or his firm in order to assist the company to secure the award of the management contract. The respondent continued to represent the company during the period in which the contract and performance thereunder came into question. Accordingly, it was very natural for the Commission, pursuing its stated duty under its resolve, to seek the respondent’s testimony and production of pertinent documents in his control. The documentary material could be thought particularly useful in reconstructing the central occurrences which antedated the Commission’s investigation by eight to ten years.
Commencing in February, 1979, there was negotiation between counsel for the respondent and the Commission looking to the voluntary production of the papers. On June 13, 1979, Commission counsel sent the respondent a letter with eleven groupings or categories of the documents desired, which were to be furnished, if they existed, from a total of not more than, roughly, fourteen expandable file
Upon the respondent’s application to the Commission to quash the documentary part of the summons, the Commission pursuant to its rule 4(h) held a closed hearing on November 9 at which there was argument by counsel on both sides. On November 14 the application was denied, with findings, rulings, and order holding that the summons was not unreasonable or overbroad, that the papers were not protected by privilege or a “work product” rule, and that there had not been substantial compliance with the summons. On November 16 the Commission, by its members, acting under the terms of the resolve, filed a petition in this court for Suffolk County for enforcement of the summons. The single justice transferred the petition to the Superior Court, which was also competent under the resolve, and a hearing was held there on December 4, 1979. This chanced to be the day of an announcement by the Commission that it was causing to be filed the following day proposed legislation that would, among other proposed reforms, revise the procedure for award of construction contracts and create an office of “Inspector General” with pоwers of investigation and oversight.
The documents called for by the summons were those in the control of the respondent relating or referring to: (1)
4. Rulings on Summons. At the hearing in Superior Court on December 4, 1979, counsel discussеd the documents as a whole or in their categories; in camera inspection of the papers was not requested or undertaken by the judge.
In his findings, rulings, and order of January 24, 1980, the judge held the summons completely unenforceable on grounds that the Commission’s powers (or at least its power to investigate by summons) expired with its submission on December 5 of draft legislation, or that enforcement would contravene the supremacy clause of the United States Constitution because of collision with the Federal prosecution and convictions of DiCarlo and MacKenzie. But if thosе grounds for denial should fail, then the judge was of opinion that production of certain categories or items therein should anyway not be compelled: categories (3) and (5) because
The case reached us on the appeal of the members of the Commission from the judgment; 4 the respondent lodged no cross appeal. Our Order dated February 14 rejected the grounds for denying all enforcement, and held that in the circumstances of the case “work product” was not a ground for denying production of any category or item, but irrelevance of any demanded material to the purposes of the resolve would be a ground, and in that connection consideration of privacy interests should play a part. The Commission would be at liberty to apply to the Superior Court for hearings on relevancy as to the categories (6 and 8) and parts of the categories (4 and 9) denied by the judge in his alternative ruling; otherwise the summons was held subject to immediate enforcement.
5.
Discussion,
(a)
General precepts.
Under its resolve the Commission was to investigate and study the condition of the law and the nature of current practice, legitimate and otherwise, in a field subject to regulation by the Legislature, and to advise and assist that body by proposing such remedial legislation as informed thought might suggest. Thus the resolve and the inquiry it authorized were within lawful bounds entering as they did “into those areas in which [the Legislature] may potentially legislate or appropriate.”
Barenblatt
v.
United States,
The record of some legislative investigating committees and commissions of relatively recent memory warns of the possibility of abuse of the information gathering function, and so, in the first place, nice care must be taken to allow legitimate claims of standard privileges against even demand for relevant information: important here are the privilege against self-incrimination and the attorney-client privilege. See, e.g.,
Quinn
v.
United States,
(b) Supposed illegality of entire documentary part of summons. (1) Expiration of investigatory power. As notеd, the Commission caused proposed remedial legislation to be introduced in the House on December 5, 1979. According to the judge, this must have the effect of putting the Commission entirely out of business or at least aborting its power of investigation and thus invalidating the outstanding summons. The judge’s point appears to have been that, as the Commission had discharged its function of advising the Legislature, any further investigation by it must be bootless, unless, indeed, its purpose was to harass the respondent and perhaps to try to show him guilty of a crime, with the possible collateral purpose of creаting an atmosphere in the Legislature, or at large, conducive to the passage of the proposed legislation. 7
If the resolve, fairly interpreted, meant to cut off Commission power to investigate upon the submission of draft legislation, then of course the judge was right, for investigation may not exceed the time allotted to the Commission by
(2) Federal supremacy. The judge asserted as a further basis for refusing enforcement of the summons that it was
The judge perhaps was intimating that the Federal convictions should have a kind of res judicata effect as against the inquiry directed by the State Legislature. But the remoteness of that suggestion from settled law may be shown by recalling the rule that after Federal conviction under Federal law a State is not constitutionally inhibited from prosеcuting the same person on the same facts under the State law, the “sovereignties” being considered separate. See
Commonwealth
v.
Cepulonis,
If, in a general sense, the supremacy clause tries to guard against Federal policy being thwarted or undermined by inconsistent State activities, it is hard to see how that objective could be defeated by the present summons or its aftermath. The case is quite different from one in which a State legislative committee once attempted to conduct an investigation of a Federal agency. 12 We may observe, incidentally, that the Commission is not shown to be committed to proceeding on a given theory against or about MBM; it desires to investigate the facts.
The work product doctrine, drawn from the well-known case of
Hickman
v.
Taylor,
The field оf operation of the work product rule is, as indicated, preparation for litigation. See
In re Fischel,
We may add on this score that еven if it had been shown that any of the material was created with a definite view to litigation, or even if that requirement were to be casually
A further quite distinctive factor in the present case is that the words and deeds of thе attorney are themselves a subject of relevant inquiry by the Commission. It has not been supposed that the
Hickman
policy has anything to do with such a situation. See
Truck Ins. Exch.
v.
St. Paul Fire & Marine Ins. Co.,
Finally we observe that the client, an intended beneficiary of the Hickman doctrine, does not here assert any claim thereunder, and there has been a waivеr of any attorney-client privilege.
Thus several factors cumulate to render “work product” an inadequate basis for excusing the production. In reaching this conclusion, we are not to be understood as saying that the work product idea, or some implication from it, can never apply in a legislative investigation. It is fair to add, however, that we have not yet seen a decision where work product has been applied in that context. 13
In respect to relevance, we suggested in the Order that privacy interests of the respondent and possibly of others should be considered. We now speak of privacy in the general sense of a right belonging to every person, not in the special sense in which it appears in discussions of the Hickman rule. We indicated (as noted above) that as the relevance of a document or part of it was seen to be attenuated or remote, the existence of a personal interest in nondisclosure might well persuade a court against ordering production.
It seems to us on a review of the cases that such a humane factor has long entered into decisions about relevance in relation to legislative investigations. See
Finance Comm’n of Boston
v.
McGrath,
In the present case privacy interests might become a factor in decision as the categories or items mentioned seek information that may shade into slight relevance, while possibly exposing personal relationships of no concern to legitimate investigation. The respondent would.be entitled to press such privacy considerations if the Commission applied in the Superior Court for enforcement of those parts of the summons.
A rescript will enter.
Notes
See also
United States
v.
DiCarlo,
By definitions in the summons, “MBM” was taken to include affiliated companies and so forth, and the material sought extended to MBM’s activities in Massachusetts not confined to the 1969 contract. Our summary of the eleven groupings omits various details.
The appeal was expedited by proceedings before the single justice to settle the record which was amplified in some respects by agreement of the parties.
Hence our cases speak of a legislative committee’s power to compel production of documents not “plainly irrelevant” to the authorizеd investigation. See
Finance Comm’n of Boston
v.
Basile,
See, e.g.,
Gardner v. Massachusetts Turnpike Auth.,
The Commission has no power to act as a “law enforcement or trial agency”
(Watkins v. United States,
“ The commission shall file . . . the final report of its investigation and study and its recommendations, if any, together with drafts of legislation necessary to carry its recommendations into effect, by filing the same with said clerk [of the House] on or before June thirtieth, nineteen hundred and eighty.
“The commission shall cease its investigation and study upon filing its final report . . . .”
Cabot
v.
Corcoran,
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”
In fact the summons extended beyond the particular management contract of 1969; see note 3 above.
See
United States
v.
Owlett,
The resolve states that “all provisions of law relative to summonses issued in [criminal] cases shall apply to summonses under this resolve so
Privacy concerns may have motivated judicial efforts to divine the “true” purposes of the questioning bodies. See
McGrain
v.
Daugherty,