Baker’s public records silence

Status quo has benefits for governor

Gov. Charlie Baker isn’t saying where he stands on legislative efforts to update the state’s Public Records Law, possibly because he is not eager to disrupt the status quo.

Like his predecessors dating back to the late 1990s, Baker contends that his office is not covered by the Public Records Law, a situation that allows him to pick and choose which documents he wants to release to the public and which ones he wants to keep private.

Baker aides say the governor has in the past voluntarily complied with public records requests, including requests related to his Twitter account and correspondence between his office and Uber, the app-based ride-sharing service. But he has also balked at turning over records, including correspondence related to his recent flip-flop on the Confederate flag.

The flag controversy arose in the wake of the murder of nine black worshipers inside a historic African-American church in Charleston, South Carolina.  Asked on a radio talk show where he stood on the Confederate flag flying over the state capitol building in South Carolina, Baker said he would leave it up to local residents to decide. Later, after he said he heard from friends who wanted to know what he was thinking, Baker reversed course and said the flag should come down.

A public records request for all correspondence related to his Confederate flag comments was rejected by the Baker administration.

“Any documents responsive to your request have been withheld consistent with the Public Records Law as interpreted by the Supreme Judicial Court and the Secretary of the Commonwealth,” wrote Cathy Judd-Stein, Baker’s deputy chief legal counsel.

Baker’s spokesman, Lizzy Guyton, issued a statement noting that the governor’s position is identical to the stance adopted by previous administrations. Her statement, however, did not address the question CommonWealth asked: Whether the governor believes the Public Records Law should apply to his office.

The legislative update to the Public Records Law being pushed on Beacon Hill focuses primarily on making the existing law work better, but it doesn’t address any of the major loopholes in the statute.

Rep. Peter Kocot of Northampton, the legislation’s sponsor, said the bill would reduce the fees assessed for copying records, generally bar agencies from charging for locating and redacting documents, and provide attorneys’ fees to citizens who win lawsuits challenging the wrongful denial of records requests.

The bill doesn’t eliminate any of the exemptions that allow agencies to withhold documents or expand the reach of the law to include the governor’s office, the judicial branch, and the Legislature. Kocot said the Legislature could take up some of these broader changes in the future, but advocates say it’s unlikely another public records bill will surface any time soon.

Some state leaders are in favor of broader changes. Attorney General Maura Healey said in an interview that she thinks no branch of government should have a blanket exemption from the Public Records Law. Secretary of State William Galvin, who enforces the law, has indicated he favors expanding the reach of the law, under certain conditions, to the governor’s office, the Legislature, and the judiciary.

The Legislature, which passed the Public Records Law in 1851, explicitly exempted itself from the law in 1897. Regulations associated with the law contain a provision stating that the judiciary is also not covered.

There are some legitimate concerns about extending the Public Records Law to the legislative and judicial branches.  Lawmakers fret about the release of records dealing with partisan party caucuses or inquiries from constituents. Jurists are worried about drafts of decisions and communications with their clerks and other judges being made public.

But there seems to be little justification for the exemption for the governor’s office. Every executive branch agency is covered by the law and they all report to the governor.

The notion of a gubernatorial exemption first surfaced in a 1997 Supreme Judicial Court decision. Ann Lambert, the plaintiff in the case, wanted access to a questionnaire completed by an applicant for a judgeship and submitted to the Judicial Nominating Council, a group appointed by the governor. When the council refused to turn the questionnaire over, Lambert appealed to the secretary of state, whose office oversees the public records appeals process. The secretary sided with Lambert.

The case ultimately wound up in front of the SJC, which ruled in the Judicial Nominating Council’s favor. The court held that the council is an arm of the governor’s office, which is exempt from the Public Records Law because it is “not explicitly included” in the law. The court said the governor’s office is not an “agency, executive office, department, board, commission, bureau, division or authority” within the meaning of the law.

Galvin believes the court’s decision is binding on his office. For example, in 2011 Galvin rejected an appeal seeking records from then-Gov. Deval Patrick’s office, citing the 1997 court decision that the governor’s office is off-limits.

Some lawyers think another court challenge could lead to a different SJC ruling. Media attorney Robert Bertsche has written, for example, that the Public Records Law clearly states that it applies to any executive office of the Commonwealth and he believes the governor’s office is an executive office.

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Critics also say that Baker and his predecessors interpret Lambert too broadly, arguing that the court ruling only applied to questionnaires filled out by judicial applicants and not to all records of the governor’s office

Media attorney Robert Ambrogi supports the pending public records legislation, but at the same time worries that the Legislature will adopt a “kick-the-can-way-down-the-road” attitude and say, “OK, we fixed the Public Records Law and we don’t have to do anything for a while.”