Mark McDevitt v. Governor's Legal Office (SPR 20232327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2327 Kimberly Baptiste Records Access Officer Office of the Governor State House Boston, MA 02133 Dear Ms. Baptiste: I have received the petition of Mark McDevitt 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 September 20, 2023, Mr. McDevitt requested records and information concerning a background check on himself. In a September 27, 2023 response, the Records Access Officer for the Office of the Governor advised Mr. McDevitt 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). In addition, the Office of the Governor does not disclose records relating to background checks.” Unsatisfied with the Office’s response, Mr. McDevitt petitioned this office and this appeal, SPR23/2327, 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). 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 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

Kimberly Baptiste SPR23/2327 Page 2 October 13, 2023 Governor or the Governor’s Office are not records that must be disclosed under the Public Records Law.” Conclusion Where the records of the Office have been determined to be outside of the Public Records Law, I am unable to assist Mr. McDevitt in this matter. Therefore, I will now consider this administrative appeal closed. If Mr. McDevitt 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: Mark McDevitt