Jonathan Gerhardson v. Office of the Governor - Legal Office (SPR 20242954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2024 SPR24/2954 Kimberly Baptiste Records Access Officer Office of the Governor State House, Room 271 Boston, MA 02133 Dear Ms. Baptiste: I have received the petition of Jonathan Gerhardson 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 August 19, 2024, Mr. Gerhardson requested “[c]ommunications, memos, orders, etc. between Gov. Healey, or any representative of her office and the National Guard, which regard or reference Barnes Airport in Westfield, MA between the earliest date available and present.” In an October 29, 2024 response, the Records Access Officer for the Office of the Governor informed Mr. Gerhardson that: By 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). Governor Healey’s Office will evaluate public records requests based on the public records law, established exemptions, and any unique obligations of the Office of the Governor. After review, we are unable to provide records responsive to your request as doing so would interfere with the Governor’s necessary, regular activities and responsibilities and, as a consequence, unreasonably hinder the Governor in effectively performing her duties. Unsatisfied with the Office’s response, Mr. Gerhardson petitioned this office and this appeal, SPR24/2954, 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

Kimberly Baptiste SPR24/2954 Page 2 November 8, 2024 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 Mr. Gerhardson in this matter. Therefore, I will now consider this administrative appeal closed. If Mr. Gerhardson 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: Jonathan Gerhardson