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.”
CommonWealth is appealing the DOT rejection of its request for the full report to the Secretary of State.
In reporting this keep in mind the inflation in costs is not merely $1billion, but the initial estimate – from these same contractors – was $483,000,000 in 2005, which went to $1billion in 2010, and $1.4 billion in 2011, and, when the feds contributed $1billion in 2012, the cost was to be $2billion.