Records law doesn’t apply to governor

Another in a series of occasional articles concerning Massachusetts public records and open meetings laws.

Responding to an appeal filed by CommonWealth, Secretary of State William F. Galvin officially ruled that Gov. Deval Patrick is not subject to the Massachusetts Public Records Law.

The ruling, issued by Galvin’s top public records deputy, appears to be the first time the secretary has issued a written ruling accepting the opinion that the governor’s office is not required to comply with the state’s Public Records Law.

Patrick, like his predecessors Mitt Romney and Paul Cellucci, says a 1997 Supreme Judicial Court decision, Lambert v. Judicial Nominating Council, exempted his office from the disclosure requirements of the Public Records Law. The court in that case held that “the governor is not explicitly included” in the definition of who is covered by the Public Records Law and therefore not subject to it.

Media attorneys who have reviewed the Lambert case have argued that it was a fairly narrow ruling on the issue of whether a personal questionnaire completed by an applicant for judicial appointment was a public record. But Galvin’s decision sides with the governor that the ruling was far more sweeping.

The governor isn’t the only public official exempt from the Public Records Law. The judicial branch, including the Probation Department, and the Legislature are exempted by statute or regulation from the law.

Galvin’s spokesman previously told CommonWealth that he would like the Public Records Law to cover the governor, the judicial branch, and the Legislature. Many bills are pending on Beacon Hill dealing with the Public Records law, but only one would extend its reach to portions of the judicial branch and none would cover the governor’s office or the Legislature.

Galvin’s ruling came in response to an appeal filed by CommonWealth seeking documents from the governor’s office related to UMass Lowell Chancellor Martin Meehan’s withdrawal of his name from consideration for the presidency of the University of Massachusetts, and Robert Manning’s resignation from the UMass board of trustees. Both of these controversial events occurred in the space of a few weeks in response to concerns Patrick and his staff had raised about the search process for a new UMass president.

Patrick’s aides say the governor voluntarily responds to most public records request, and he did produce a number of emails in response to CommonWealth’s request for information on Meehan and Manning. But virtually all of the emails were sent or received by his communications staff. None were sent to or by the governor himself.

Since no emails from or to the governor had turned up in any of its previous public records requests, CommonWealth sent another request to Patrick’s office asking whether the governor’s own files had been searched for records related to Meehan and Manning. When the governor’s office did not respond to the request, an appeal was filed with Galvin’s office.

Alan Cote, who works as Galvin’s supervisor of public records, denied the appeal, citing the Supreme Judicial Court’s Lambert ruling.  “As such,” Cote wrote, “governor’s records are not public records subject to disclosure under the Public Records Law.”

In his ruling, Cote also noted that public officials are not required to answer questions, an apparent reference to CommonWealth’s inquiry on whether the governor’s own files had been searched.