Todd Wallack v. Office of the Governor - Legal Office (SPR 20230366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0366 Michael Kaneb, Esq. Records Access Officer Office of the Governor State House Boston, MA 02133 Dear Attorney Kaneb: I have received the petition of Todd Wallack, of WBUR, appealing the responses 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 February 14, 2023, Mr. Wallack requested: [1] Any settlement agreements involving employees of the governor’s office since 2018 [2] Any severance agreements involving employees of the governor’s office since 2018 that contained a non-disclosure or non-disparagement clause. In a February 16, 2023 response, the Records Access Officer for the Office of the Governor advised Mr. Wallack that, “[the Office] [is] unable to provide records responsive to your request.” The Office further opined, “[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, Mr. Wallack petitioned this office and these appeals, SPR23/0366, 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 SPR23/0366 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. Wallack in this matter. Therefore, I will now consider this administrative appeal closed. If Mr. Wallack 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: Todd Wallack