DONALD L. BABETS & others [Note 1] vs. SECRETARY OF HUMAN SERVICES & another. [Note 2]

HENNESSEY, C.J. This matter is before us on a report, pursuant to G. L. c. 231, Section 111 (1986 ed.), and Mass. R. Civ. P. 64, 365 Mass. 831 (1974), by a Superior Court judge of his interlocutory order allowing the plaintiffs' motion to compel production of documents which the defendants contend are protected from disclosure by a "governmental privilege." [Note 3] The judge has stayed his order pending resolution of the report. We granted the plaintiffs' application for direct appellate review, and now hold that the judge's order [Note 4] was correct, and that there is no such privilege in Massachusetts.

The plaintiffs commenced the action below by filing a complaint requesting declaratory and injunctive relief and challenging the lawfulness of certain regulations promulgated by the Department of Social Services (DSS). The regulations, which are codified at 110 Code Mass. Regs. Sections 7.100 et seq. (1986), were attacked on the ground that they "irrationally and arbitrarily categorize foster parent applicants by marital status and sexual preference in such a way as to exclude single persons, unmarried couples and gay [i.e., homosexual] men and lesbians from equal consideration as foster parents." The plaintiffs contended that these regulations violate their State and Federal constitutional rights to equal protection, due process, freedom of association, and privacy, as well as their statutory rights under 42 U.S.C. Section 1983 (1982), G. L. c. 12, Section 11 (1986 ed.), and G. L. c. 214, Section 1B (1986 ed.). They also contended that

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the regulations violate State and Federal law requiring that foster care placements serve the best interests of the child.

The plaintiffs requested the defendants to produce certain documents relating to the process by which the policy embodied in these regulations was developed and promulgated, including internal memoranda and drafts of proposed regulations. The defendants complied with some of these requests, but refused to produce other requested documents, specifically those that, in their view, "constitute or contain information protected by the governmental privilege."

The plaintiffs then moved the court to compel the defendants to produce these documents. After hearing and in camera inspection of the disputed documents, the judge allowed this motion. In his memorandum of decision and order, the judge noted that there was merit to the defendants' position, but that he was constrained to follow existing law, and not to innovate or to create new law. He ruled that there existed under Massachusetts law no privilege that the defendant could invoke to excuse production of the requested documents. Recognizing, however, the importance of the issue, and that an appellate court might create such a privilege when squarely presented with the issue, he reported the matter of the correctness of his order, and stayed the order pending resolution of the report.

In order to present the matter in a more concrete and meaningful posture, the judge went on to make certain findings and rulings concerning the defendants' assertion of the privilege. Taking cognate Federal law [Note 5] as his model, he found and held, assuming that the asserted privilege existed, that the defendants had properly invoked it, and that certain specified documents were within its scope.

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The judge correctly ruled that there presently exists no privilege of the type the defendants assert. We have previously declined to consider the question in the abstract. Opinion of the Justices, 368 Mass. 866, 880 (1975). This case squarely presents the issue.

The defendants contend that this court should create a privilege under Massachusetts law, modeled on Federal law of executive privilege. They advance both constitutional grounds and nonconstitutional policy arguments in favor of such a privilege. We discuss first the constitutional arguments.

1. The defendants argue that executive privilege inheres in or is a necessary ramification of the doctrine of separation of powers, which is fundamental to our form of government, and which finds positive expression in art. 30 of the Declaration of Rights of the Massachusetts Constitution. We disagree. We think that the doctrine of separation of powers does not require recognition of the asserted privilege. What this doctrine interdicts is the interference by one branch of government with the power or functions of another. See New Bedford Standard-Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410-411 (1979); Opinion of the Justices, 375 Mass. 795, 813-814 (1978); Opinion of the Justices, 372 Mass. 883, 892-894 (1977); Opinion of the Justices, 365 Mass. 639, 640-642 (1974); Opinion of the Justices, 208 Mass. 610, 613 (1911). Our declining to recognize the asserted privilege does not constitute the exercise of nonjudicial power or interfere with the Executive's power. We think that it is relevant that the defendants have failed to demonstrate that the Executive does not function effectively because of the lack of the asserted privilege. Moreover, the explicit constitutional grant to the Legislature of a "privilege" as to its deliberations, see art. 21 of the Declaration of Rights of the Massachusetts Constitution, further supports our view that a corresponding privilege in the Executive is not constitutionally required. Had the framers of our government's structure intended to recognize in our Constitution an executive privilege, it is reasonable to expect that they would expressly have created one.

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We add that, even under Federal law, where the privilege is well established, and which the defendants urge us to adopt as our model, "there is abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive branch . . . . [and s]uch regulation of material generated in the Executive branch has never been considered invalid as an invasion of its autonomy." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 445 (1977) (citations omitted).

2. Having considered and rejected the defendants' constitutional argument, we now turn to their contention that we should create a privilege as a matter of common law. We observe, first, that the defendants must overcome the customary reluctance of this court, exhibited on many occasions, to create common law privileges to exclude relevant evidence. We have consistently concluded that the creation of such privileges ordinarily is better left to the Legislature. See infra.

Although this court has the power to create privileges, Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), it is a power that we have exercised sparingly, and "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. at 359-360, quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). "[P]rivileges are exceptions to the general duty imposed on all people to testify," Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982); Three Juveniles, supra at 359; Matter of Pappas, 358 Mass. 604, 607-609 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665, 709 (1972), and to the fundamental principle that "the public `has a right to every man's evidence' . . . [which] has been preferred, on the whole, to countervailing interests." Matter of Pappas, supra at 607, quoting 8 J. Wigmore, Evidence Section 2192 (McNaughton rev. 1961). See Three Juveniles, supra at 359; Commonwealth v. Collett, 387 Mass. 424, 442 (1982) (Lynch, J., dissenting). See also United States v. Bryan, 339 U.S. 323, 331 (1950). Accordingly, existing privileges are strictly construed, Three Juveniles, supra at 359;

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Corsetti, supra; Foster v. Hall, 12 Pick. 89, 97 (1831), and we have been reluctant to create new privileges, preferring to leave this area to legislative determination. See Three Juveniles, supra at 360; Commonwealth v. Mandeville, 386 Mass. 393, 409 (1982); Matter of Pappas, supra at 611-612. Cf. Usen v. Usen, 359 Mass. 453, 456-457 (1971) (court "not free to water down the legislative policy embodied in the [psychotherapist-patient privilege] statute by loose construction"). Accord In re Terry W., 59 Cal. App. 3d 745, 749 (1976); People v. Sanders, 99 Ill. 2d 262, 271 (1983); [Note 6] Cissna v. State, 170 Ind. App. 437, 439-440 (1976); State v. Gilroy, 313 N.W. 2d 513, 518 (Iowa 1981). Cf. Petition for the Promulgation of Rules, 395 Mass. 164, 169, 170-172 (1985) (declining to promulgate evidentiary rule of "reporter's privilege"; noting that adoption of evidentiary rules "require[s] careful coordination with the Legislature;" but also citing the advantages of the common law case-by-case approach). See generally McCormick, Evidence Section 75, at 180 (3d ed. 1984) ("It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege"); Note, The Parent-Child Privilege, 1984 B.Y.U.L. Rev. 599, 608-614 & n.63 ("Since the early 1800's the vast majority of new privileges created have been of legislative origin," citing McCormick, supra; and

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surveying State codifications of law of privileges). [Note 7] The Legislature has created or codified various types of privileges. See

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G. L. c. 112, Section 135 (1986 ed. & Supp. 1987) (certain communications to a licensed social worker); G. L. c. 233, Section 20, Second (1986 ed.) (spouse's election not to testify against spouse in a criminal proceeding [other than for child abuse or nonsupport]); G. L. c. 233, Section 20A (1986 ed.) (certain communications to clergymen); G. L. c. 233, Section 20B (1986 ed. & Supp. 1987) (certain communications between psychotherapists and patients). Cf. G. L. c. 233, Section 20, First (1986 ed.) (testimonial disqualification of spouse as to private conversations with spouse). [Note 8]

Against this court's consistent reluctance to create common law privileges, as shown above, we appraise the defendants'

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arguments that the executive privilege urged here will promote good public policy. They say that the privilege prevents possible public misinterpretation or confusion about the reasons behind executive policies. They also say that the privilege advances the public interest in well considered executive policymaking, by promoting candid and unconstrained communication and exchange of ideas between and among executive policymakers and their advisors. They contend that our failure to recognize the privilege would have a "chilling effect" on such intra-executive communication, to the detriment of the policymaking process and, ultimately, the public interest.

The plaintiffs controvert the defendant's arguments, and urge additional considerations that they say militate against the creation of the asserted privilege. They argue that the history of the Commonwealth demonstrates that the Executive has functioned effectively despite the lack of the privilege, and that this refutes the defendants' argument as to the chilling effect of disclosure on intra-executive communications. It is arguable that the threatened "misinterpretation or confusion" could be forestalled by stating the actual reasons for the adoption or rejection of a particular policy, either at the time of promulgation, or later, in response to queries or erroneous attribution, and that public debate about the meaning and purposes of executive policy may result in better policymaking.

There is force and logic to the defendants' policy arguments, but the arguments against the privilege are also persuasive. We have been especially reluctant to create new privileges on the basis of speculation or conjecture as to the harms which may result from our failure to do so. See Matter of Roche, 381 Mass. 624, 635 (1980). We think that the defendants' assertions (which are unsupported by any empirical evidence) are speculative in light of the long history of the Commonwealth and the lack of any showing of real harm that has accrued from the absence of the privilege. This contrasts with the plaintiffs' specific and demonstrable need for the requested documents in order to prosecute their action for the vindication of

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their constitutional and statutory rights, allegedly violated by the defendants. [Note 9]

We therefore decline to create a privilege of the type asserted by the defendants, and we affirm the correctness of the order below.

So ordered.