Colman Herman v. Office of the Governor - Legal Office (SPR 20230352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0352 Michael Kaneb, Esq. Records Access Officer Office of the Governor State House Boston, MA 02133 Dear Attorney Kaneb: I have received the petition of Colman Herman appealing the response of the Office of the Governor (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 17, 2023, Mr. Herman requested “copies of any and all communications related to ‘Executive Order No. 604: Establishing the Office of Climate Innovation and Resilience Within the Office of the Governor.” In a February 10, 2023 response, the Records Access Officer for the Office of the Governor advised Mr. Herman that, “[b]y law, records held by the Office of the Governor are not subject to the Massachusetts public records law. See Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 406, 409 (1997). . . . Public records requests will be evaluated based on the public records law, established exemptions, and any unique obligations of the Governor’s Office.” The Office also stated, “[a]ttached are records responsive to your request. Certain records responsive to your request have been withheld consistent with exemptions (a) and (d) of the public records law.” Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR23/0352, was opened as a result. 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 not apply to records of 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

Michael Kaneb, Esq. SPR23/0352 Page 2 March 7, 2023 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 Where the records of the Office have been determined to be outside of the Public Records Law, I am unable to assist Mr. Herman in this matter. Therefore, I will now consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman