Todd Wallack v. Governor's Legal Office (SPR 20230367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0367 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 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 February 17, 2023, Mr. Wallack requested, “[a]ny complaints about sexual harassment involving employees of the governor’s office since 2018.” In a February 23, 2023 response, the Records Access Officer for the Office of the Governor advised Mr. Wallack 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). The Records Access Officer further advised, “Governor Healey’s public records policy for the Office of the Governor became effective January 5, 2023, but it does not apply retroactively to the records of previous administrations that operated under different policies. In any case and regardless of this consideration, complaints of the sort you describe and materials relating to the investigation of such complaints are exempt from disclosure pursuant to exemptions (b) and (c) of the public records law.” Unsatisfied with the Office’s response, Mr. Wallack petitioned this office and this appeal, SPR23/0367, 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 the Office. Lambert, 425 Mass. at 409; see also Mass. Const. Pt. 1, Art. 30 (separation of powers). 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 SPR23/0367 Page 2 March 7, 2023 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