Anthony Leo v. Office of the Governor - Judicial Nominating Commission (SPR 20202012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2012 Paige Ferreira Legal Assistant/Records Access Officer Office of the Governor State House; Room 271 Boston, MA 02133 Dear Ms. Ferreira: I have received the petition of Anthony Leo appealing the response of the Office of the Governor Judicial Nominating Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Leo requested: 1. Records concerning when and how [an identified attorney] first submitted her name for a Massachusetts judgeship; and 2. Records of when and how this Commission voted concerning [an identified attorney’s] nomination, and any comments/recommendations made concerning [the identified attorney’s] judgeship by its’ members. In a September 28, 2020 response, as Records Access Officer for the Legal Office in the Office of the Governor you informed Mr. Leo that, “[a]ny records responsive to [his] request have been withheld consistent with the [P]ublic [R]ecords [L]aw as interpreted by the Supreme Judicial Court.” In a footnote in your response, you asserted, “…the Office of the Governor is not one of the instrumentalities enumerated in G. L. c. 4, § 7(26), and therefore its records are not subject to disclosure under the [P]ublic [R]ecords [L]aw.” Citing Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 406, 409 (1997). Unsatisfied with the Commission’s response, Mr. Leo petitioned the Supervisor of Records, and this appeal was opened. The Supervisor is statutorily empowered with the authority to determine the public record status of government records. G. L. c. 66, § 10. “Public records” is broadly defined to include all documentary materials or data, regardless of physical form, made or received by any officer or employee of any department of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). In examining this definition, and the separation of powers doctrine, the Supreme Judicial Court has concluded that the Public Records Law does One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Paige Ferreira, RAO SPR20/2012 Page 2 November 2, 2020 not apply to records of the Commission. Lambert, 425 Mass. at 409; see also Mass. Const. Pt. 1, Art. 30 (separation of powers). Whereas, the records of the Commission are not subject to the Public Records Law, I am unable to assist Mr. Leo in this matter. Therefore, I must consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Anthony Leo