Todd Borland v. Office of the Governor - Legal Office (SPR 20202308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2308 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 Mr. Todd Borland appealing the response of the Office of the Governor Legal Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 4, 2020, Mr. Borland requested: • “I would like you to share the data that shows curfews slow the spread of SARSCOVID19 that Governor Baker used in creating the correlating mandate” • “I would like you to share the data used by Governor Baker that shows wearing face coverings outside slows the spread of SARSCOVID19.” In a November 17, 2020 response, the Records Access Officer for the Legal Office in the Office of the Governor informed Mr. Borland that, “[a]ny records responsive to your request have been withheld consistent with the [P]ublic [R]ecords [L]aw as interpreted by the Supreme Judicial Court.” In a footnote in the response, the Office 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 Office’s response, Mr. Borland 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 SPR20/2308 Page 2 November 24, 2020 not apply to records of the Office. Lambert, 425 Mass. at 409; see also Mass. Const. Pt. 1, Art. 30 (separation of powers). Also, please be advised that in a 2017 decision from the Attorney General’s Office (AGO) regarding a similar matter, the AGO concluded that “. . . documents in the possession of the Governor or the Governor’s Office are not records that must be disclosed under the Public Records Law.” See AGO’s November 17, 2017 letter regarding SPR17/0271 (Determination of the Supervisor of Records (March 15, 2017). Conclusion Whereas the records of the Office have been determined to be outside of the Public Records Law, I am unable to assist Mr. Borland in this matter. Therefore, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Todd Borland