Baker’s record on records

Governor withheld documents in 33 instances

Over the past two years, Gov. Charlie Baker has responded to 33 requests for public records by either withholding the information in its entirety or releasing it in redacted form.

Baker’s record on records requests, which itself was obtained through a public records request, aligns with his view that his office is not subject to the Public Records Law and that he can pick and choose which requests to fulfill.

Baker administration officials declined to say how many records requests they have fulfilled or provide access to the public records log the office maintains, so it’s impossible to say whether the 33 represented a small or large portion of the total.

The 33 that were rejected or redacted were mostly for copies of communications such as emails and text messages. Robert Bertsche, a Boston media attorney who authored a guide for reporters to the Public Records Law in 2011, said the governor presumably turns over records when “the documents will reflect well on him,” cause him “no appreciable harm,” or serve the public interest.

Baker’s view that his office is not subject to the Public Records Law is consistent with the positions taken by his predecessors. He cites a 1997 Supreme Judicial Court decision called Lambert v. Judicial Nominating Council, which held that a group helping the governor select judicial nominees was not subject to the Public Records Law because the law does not specifically mention the governor’s office.

Despite the court ruling, Baker and his predecessors haven’t unilaterally rejected all records requests. The administration typically gives an initial response to requests this way: “Notwithstanding Lambert, it is the voluntary practice of the office to consider and to respond to public records requests on a case-by-case basis.”

Baker’s lawyers, for example, denied three requests in their entirety for copies of text messages exchanged between the governor and Boston Mayor Marty Walsh. Also denied were requests for emails to Baker from the account of James Conroy, a former senior advisor to the governor, and from Will Keyser, the architect of Baker’s 2014 campaign and more recently a consultant to Keolis Commuter Services, which runs commuter rail for the MBTA.

Responding to four separate requests for communications and other documents related to General Electric’s relocation from Connecticut to Boston, the governor’s office produced a voluminous amount of records (5,125 pages in all), but withheld or redacted others.

Baker withheld internal emails related to the governor’s comment on a radio program that the decision to fly the Confederate flag should be left to the states. On the program, he said flying the flag was a matter of “tradition,” but subsequently backed away from that position after a public uproar.

Baker also withheld some emails dealing with the governor’s attempt to turn over a sliver of land at the State House to developers of a luxury condominium complex bordering the grounds. The emails that were provided related to mundane matters such as setting up meetings.

In denying the request, one of Baker’s lawyers referred to Lambert. “Please note that a number of responsive documents have been withheld consistent with the public records laws as interpreted by the Supreme Judicial Court,” he wrote.

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While Baker’s position on public records is generally consistent with his predecessors, it does differ in one key respect. In denying requests, former governors would generally cite exemptions allowed under the Public Records Law. Baker’s lawyers rarely do that; they just deny the request and don’t explain why, other than to cite Lambert.

The governor’s lawyers have also extended the protection of Lambert to the lieutenant governor. In response to a request for Lt. Gov. Karyn Polito’s expense reports, the governor’s deputy chief legal counsel, Cathy Judd-Stein, said none existed. Asked whether Lambert applied to the lieutenant governor, Judd-Stein said it did, indicating the lieutenant governor’s office is part of the governor’s office.

An overhaul of the Public Records Law was signed into law last year. The law calls for the creation of a commission to examine whether the governor, the Legislature, and the judiciary should be subject to the measure’s provisions. All three are currently exempt under either provisions of existing law or court interpretations of the law.