Do you ever wonder about the admissibility of those damning reports compiled by the Department of Public Health or Mental Health that inculpate the care and treatment of the health care providers who harmed your client? The official/public records exception to the hearsay rule generally allows admission of “[a] record of a primary fact, made by a public officer in the performance of an official duty” if admitted for the purpose of proving “the existence of that fact.” Mass. G. Evid. § 803(8)(A). “‘Primary fact’ is not a self-defining phrase, but at least it connotes facts which can be recorded without recourse to discretion and judgment.” Adoption of Georgette, 27 Mass. App. Ct. 265, 274 (1989). There is an exception, however, for records of investigations: Record of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records, unless specifically authorized by statute.
Mass. G. Evid. § 803(8)(A). See Commonwealth v. Nardi, 452 Mass. 379, 394 (2008) (Massachusetts does not permit admission of “evaluative reports” or “opinions or conclusions in government reports”); Herson v. New Boston Garden Corporation, 40 Mass. App. Ct. 779, 792-93 (1996) (“[A] record of a primary fact, made by a public officer in the performance of official duty” could be “prima facie evidence as to the existence of that fact, but . . . records of investigations and inquiries conducted . . . by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records”) (quoting Commonwealth v. Slavski, 245 Mass. 405, 417 (1923)) (emphasis in original).
In Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 (2002), the Appeals Court affirmed the exclusion of a DPH investigatory report in its entirety. Id. at 135. In Mattoon, plaintiffs sued the City of Pittsfield in connection with a giardiasis outbreak allegedly caused by the city’s negligent chlorination of water from a certain reservoir. Id. at 126-27. Plaintiffs sought to introduce a memorandum from the “Division of Field Services Epidemiology Program Office” to the “Director, Centers for Disease Control,” which reported the results of an investigation ordered by the assistant commissioner of the DPH. Id. at 134. The document was a ten page memorandum consisting of a “Summary,” “Introduction,” “Background,” “Environmental Investigation,” “Discussion,” and “Recommendations.” Id. There was also seven pages of attachments, including tables, maps, and diagrams. Id. The memorandum was captioned: “For Administrative Use,” “Limited Distribution,” and “Not for Publication.” Id. The Appeals Court affirmed exclusion of this report, relying on the aforementioned principle that “‘evaluative reports’ or opinions or conclusions in government reports” are not admissible into evidence. Id. at 136. See Herson, 40 Mass. App. Ct. at 793 (affirming exclusion of OSHA citations).
However, it may be possible to argue that portions of the DMH and DPH are admissible insofar as they contain a recitation of primary facts without disclosing conclusions or opinions. In Adoption of Georgette, at issue was the admission of service plans, case reviews, foster care reviews, etc. as records of a public agency. Adoption of Georgette, 27 Mass. App. Ct. at 271. The court observed that a factor complicating the admission of these documents was that they were “laced with judgmental observations and opinion.” Id. at 273. The court concluded that it was appropriate to admit the documents with the impermissible content redacted: “Practical considerations, we think, favor the receipt in evidence of the documents here in question, with, however, screening out . . . of expressions of opinion, evaluation, or judgment of the children or the resisting parent.” Id. at 274. The court also held that “[t]o the extent that the source of information in a document of the sort here in question is available for cross-examination, more leeway may be afforded material that smacks of opinion, evaluation, or judgment.” Id. See Care and Protection of Zita, 455 Mass. 272, 280 (2009) (DSS report admissible but must be “limited to a statement of facts, or redacted to exclude opinion, diagnosis or evaluation”); Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 354 (1995) (judge admitted Department of Public Utilities decision by redacting portions containing expressions of opinion, conclusions, or evaluation, reducing eight-page report to three sentences, which were read to the jury).