STATE TRANSPORTATION OFFICIALS are refusing to release a consultant’s report on what went wrong with a contract for the Green Line extension to Somerville, saying the document “was prepared under direction of counsel and is attorney-client privileged.”
The consultant, Berkeley Research Group, concluded the MBTA’s contractor “worked the system” to its advantage and the state employed a novel contracting system that was supposed to speed up construction and cap overruns yet nevertheless resulted in the project’s cost rising from just under $2 billion to an estimated $3 billion.
In the coming weeks, state transportation officials will begin exploring ways to move forward with the project. Possible approaches include rebidding portions of the Green Line extension with a more conventional contracting approach, scaling back the size and scope of the project, and accelerating the construction timetable by shutting down rather than temporarily suspending commuter rail services that move through the construction zone.
Berkeley Research presented its findings orally and in the form of a PowerPoint presentation to the MBTA’s Fiscal and Management Control Board on Monday, but state officials refused to release the full report.
One source familiar with the situation said the document is being kept under wraps not because the MBTA intends to sue its contractors but because the agency might get sued for exercising its options under the contract. “Everybody’s lawyered up,” the source said.
It’s unclear whether the possibility of getting sued is sufficient justification for withholding records from the public. The report was produced by a consultant and is not a direct communication between the MBTA and its lawyers.
A guide from the Secretary of State’s office, which oversees public records, says the attorney-client privilege is not absolute. The guide refers to a decision by the Supreme Judicial Court in a suit filed by Suffolk Construction against the state Division of Capital Asset Management. The SJC ruled that direct communications between attorneys and agencies are covered by the privilege but said so-called “work product” that is not produced by the lawyers are presumed to be public records.
“While recognizing that certain confidential communications between public officials and their legal counsel may be withheld from the public, the court made clear its holding in this case did not extend to work product materials,” according to the secretary’s regulations. “Accordingly, the court’s decision in Suffolk does not alter this office’s longstanding determination that work product documents are subject to public disclosure.”
Meet the Author
Senior Investigative Reporter, CommonWealth
About Jack Sullivan
Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.
He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.
Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.
At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.
About Jack Sullivan
Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.
He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.
Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.
At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.
Meet the Author
Editor, CommonWealth
About Bruce Mohl
Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.
About Bruce Mohl
Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.
CommonWealth is appealing the DOT rejection of its request for the full report to the Secretary of State.
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