Ureneck, Joe v. Office of the Governor - Legal Office (SPR 20140364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 3, 2014 SPR14/364 Mr. Jamie Hoag, Esq. Deputy Chief Legal Counsel Office of the Governor's Legal Counsel State House, Room 271 Boston, MA 0213 3 Dear Attorney Hoag: I have received the petition of Joe Ureneck, Chair of the Fatherhood Coalition, appealing the response of Office of the Governor's Legal Counsel (Office) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ureneck requested copies of applications for specifically identified judicial nominees submitted to the Judicial Nominating Council (JNC). In your response you denied this request, stating that by rule of the Supreme Judicial Court such records are not a public record. Ann K. Lambert v. Executive Director ofthe Judicial Nominating Council, 425 Mass. 406, 409 (1997). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In his appeal, Mr. Ureneck claims that, as "the JNC applications are made available to non-governmental agencies and are routinely cited in public hearings, the SJC ruling of 1997 no longer applies," further asserting "that the records must be made available upon request under the Public Records Law". I do not agree. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jamie Hoag, Esq. SPR14/364 Page Two October 3, 2014 In its 1997 decision the Supreme Judicial Court referred to Section 14 of Executive Order 355, which states that "All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the Executive and Regional Committees but shall be available to the Governor and the Governor's designee." This language is substantially similar to that found in Section 13 of Executive Order 420, which superseded Executive Order 355. The Supreme Judicial Court found in Lambert that the "JNC's records are essentially the Governor's records on judicial appointments. Those records are not within G. L. c. 4, § 7, Twenty-sixth," and are therefore not public records. In a footnote the Supreme Judicial Court analogized that the records of the JNC are equivalent to records that may be withheld under the Public Records Law as personal notes. Lambert, 425 Mass at 409; G. L. c. 4, § 7 (26)(e). It is important to note that, as stated by the Supreme Judicial Court, "The policy underlying public process is fulfilled by the Executive Council. The Executive Council's questionnaire and the Executive Council's hearings on the Governor's nominees amply satisfy the public interest in obtaining information about the Governor's choice." Lambert, 425 at 410. Accordingly, whereas the Supreme Judicial Court held that records ofthe JNC are not public records, and further whereas the Supreme Judicial Court held that the public interest is satisfied through the hearing process for judicial nominees, I will consider this administrative appeal closed. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Joe Ureneck