BOSTON (AP) — Like past Massachusetts governors, Charlie Baker has spoken about making state government more accountable and transparent to the public.
One test of that pledge is to what extent the first-term Republican will argue that the governor’s office is exempt from the state’s public records law.
Baker’s most recent predecessors — Republican Mitt Romney and Democrat Deval Patrick — both cited a nearly 2-decade-old court ruling that they said allowed them to decide which information generated by their office should be subject to the public records law.
In 2011, for example, Romney acknowledged that just before he left office six years earlier, he’d authorized a sweeping purge of electronic data from his executive office, including allowing top aides to purchase and remove their computer hard drives.
A top Baker aide said the governor’s office will comply with the public records law as interpreted by the secretary of the commonwealth and the Massachusetts Supreme Judicial Court.
“Gov. Baker … believes everybody should comply with the current law as it stands and looks forward to reviewing the details of future initiatives to appropriately update the law,” press secretary Elizabeth Guyton said.
At the center of the debate is a 1997 decision of the Supreme Judicial Court known as Lambert v. Executive Director of the Judicial Nominating Council. The interpretation of that ruling has had the effect of giving governors wide authority in determining what documents to make available for public scrutiny.
As he was leaving office, Romney sent 600 boxes of materials to the Massachusetts Archives for future public review. A weeklong examination by The Associated Press in 2012 during his run for president failed to turn up email or internal documents authored by or sent to him.
Patrick also invoked the Lambert decision during his eight years in office. Patrick officials said during his tenure that he was committed to “responding to public records requests in accordance with state law.”
“This administration has set an example of making government accessible and accountable to the people of Massachusetts,” former Patrick press secretary Heather Johnson said in 2013.
Patrick, who left office in January, has turned over to the state archives about 20 cubic feet of paperwork and other materials and about a terabyte of digital content — including electronic files and photos. Archive officials are in the process of cataloguing the material.
The Lambert ruling involved a Cambridge lawyer who sought access to a questionnaire filled out by Charles Fried, nominated by former Gov. William Weld to serve on the Supreme Judicial Court.
The questionnaire asked about personal, financial and legal affairs, including histories of mental illnesses, alcoholism and use of drugs. It was submitted to the Judicial Nominating Council, which was charged with making recommendations to the governor.
The court ruled that making the answers public “would interfere impermissibly with the governor’s constitutional power” and that because the council is an “interviewing and screening body whose sole purpose is to assist the governor,” it has no public function and the council’s records are essentially the governor’s records.
In a critical portion of the ruling, the court concluded that since the state’s public records law doesn’t expressly include the Legislature, judiciary or governor, there is “no merit” to the argument that the questionnaire is a public record.
Secretary of the Commonwealth William Galvin, the state’s top public records official, said the law needs to be updated to clarify which materials the governor should be able to shield from the public and which should be covered by the records law.
Galvin said he agrees with what he sees as the original intent of the Lambert decision: to give a governor greater leeway to seek counsel and opinion from advisers, counsel that could be tougher to get if those advisers knew it could be made public.
But he said the interpretation now is too broad, sweeping up nearly all information a governor wants to keep from the public.
“The governor should feel free to ask people for their opinion, but I don’t think it means everything the governor’s office does or the governor does should be exempt,” Galvin said. “That’s the problem, where you draw the line?”
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