Samantha J. Gross v. Office of the Governor - Legal Office (SPR 20230356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0356 Michael Kaneb, Esq. Records Access Officer Office of the Governor State House Boston, MA 02133 Dear Attorney Kaneb: I have received the petition of Samantha J. Gross, of the Boston Globe, 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 31, 2023, Ms. Gross requested the following: [1] All correspondences (including but not limited to written letters, memos, emails, email attachments, and complete email chains) between (a) Governor Maura Healey or staff communicating on behalf of her and (b) House Speaker Ronald J. Mariano or Senate President Karen E. Spilka or members of their respective staffs communicating on behalf of them for the month of January [2] Governor Maura Healey’s daily calendar for the month of January [3] Log of Governor Maura Healey’s travel for the month of January [4] Log of all calls made or received on Governor Maura Healey’s cell phone or direct office line for the month of January In a February 13, 2023 response, the Records Access Officer for the Office of the Governor advised Ms. Gross 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.” Unsatisfied with the Office’s response, Ms. Gross petitioned this office and this appeal 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 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. SPR23/0356 Page 2 March 7, 2023 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 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 Ms. Gross in this matter. Therefore, I will now consider this administrative appeal closed. If Ms. Gross 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: Samantha J. Gross