Governor Deval Patrick's Denial of Public Records Request

Unfortunately, I have not been able to find too much in the press about this story. The Metrowest Daily News, in an editorial on February 16th, reports that the Governor has denied a public records request from Barbara Anderson, head of the anti-tax Citizens for Limited Taxation. The public records request, which can be downloaded on the Citizens for Limited Taxation website, sought "copies of all reports submitted to the Governor relating to budget savings within their departments."

The response from the Michael J. Pineault, Deputy Chief Counsel for the Governor, was a denial of the request on two grounds. First, because the Governor maintains that under Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 407 (1997), the Office of the Governor's records are not subject to disclosure under the public records law. As discussed in the one other newspaper article I could find on this story, this is a questionable interpretation of the Lambert case which concerned a request for "judicial questionnaires submitted to the Judicial Nominating Council."

Second, Mr. Pineault states, "we have reviewed your request and determined that it seeks memoranda relating to policy deliberations that are exempt from production under exemption (d) of the public records law." Exemption (d) exempts from disclosure "any inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based." Seems like just from the wording of the clause that the Governors position on this ground is questionable too. Aren't the requested records "completed factual studies or reports on which the development of such policy positions has been or may be based?"

In any event, even if the Governor's grounds for not producing the requested records were unquestionable, the Governor could still have produced the records. Exemption (d) of the Public Records Law does not prohibit production of records. It only provides a basis for not producing a record if the custodian determines it is appropriate under the circumstances.

Although it is disappointing that Governor Patrick has decided not to produce the records requested under the Massachusetts Public Records Law based on questionable grounds, his counsel at least should have explained the decision better. Simply citing the law and, in effect, saying we are not producing the records because we do not have to is not sufficient. It smacks of arrogance and it undermines the Governor's persona as a man of the people.

The Citizens for Limited Taxation has filed an appeal with the Secretary of State's office.