First in a series of occasional articles on rulings issued by the Secretary of State’s office concerning appeals of public records requests filed with public agencies.

Last March, Boston Globe business reporter Todd Wallack asked each of Gov. Deval Patrick’s eight executive agencies for copies of any “separation, severance, transition, or settlement agreements” made since January 1, 2005 between the agencies and their employees that include compensation, benefits, or other payments worth more than $10,000, which he subsequently narrowed to $50,000 or more.  According to Wallack, each of the eight agencies assembled the documents, but instead of handing them over to him, forwarded them on to the governor’s office.

About three months after he filed his eight requests, the records were turned over to Wallack by the governor’s office, but with the names and other identifying information regarding the employees redacted based on a variety of claimed exemptions.  “While we understand that employee names, positions, and salaries are publicly available, the types of agreements you have requested are far more personally sensitive,” wrote Mark Reilly, the governor’s attorney, in a letter to Wallack contained in a file at the Secretary of State’s office. “The agreements relate to personnel disputes often involving employee discipline including termination.”

In an appeal filed with Secretary of State William Galvin’s office, Wallack seeks unredacted versions of the documents, noting the settlements involved millions of taxpayer dollars. In one case, according to Wallack, an employee was awarded more than $300,000. “I can’t imagine the courts intended to give the state a loophole to hide deals involving millions of dollars in taxpayer funds,” Wallack writes in his appeal.

Patrick claims that, as governor, he is exempt from the Public Records Law as a result of a 1997 court case (Lambert v. Executive Director Judicial Nominating Council), although aides maintain Patrick voluntarily complies with most records requests.

Last October, Alan Cote, who handles public records appeals on behalf of Galvin, ruled in Wallack’s favor, ordering the governor’s office to produce the records for Wallack in unredacted form. 

Cote also took note in his ruling of a side issue raised in a letter he received from Richard Barry, Jr., general counsel to the National Association of Government Employees, which represents about 12,000 state employees. Berry said he opposed Wallack’s appeal because nearly all the settlement agreements reached between the state and employees include “a confidentiality provision in which both parties agree that the terms of the agreement shall remain confidential.”

Cote ruled the confidential provisions could not be used to circumvent the Public Records Law. “If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp,” Cote wrote.

Despite Cote’s ruling, Reilly, the governor’s attorney, is refusing to turn over the records to Wallack in unredacted form. “It may be advisable for each agency counsel to submit in writing to you the specific privacy interests implicated in each agreement,” Reilly wrote in a letter to Cote.

That was last November, but Wallack says he can’t get Cote to tell him what, if anything, has happened since then. 

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Mike Beaudet, an investigative reporter for Channel 25, the local Fox outlet, asked the Massachusetts Film Office in August 2009 for records related to in- and out-of state travel by its employees and board members as well as their non-travel expenses, all since July 1, 2008.  The film office denied Beaudet’s request, arguing that it is not a government entity and is thus not subject to the Massachusetts Public Records Law.  Beaudet appealed.

Court decisions in Massachusetts have established a five-factor test that can be used for determining whether an organization is actually a government entity and thus covered by the Public Records Law: the means by which the entity was created, whether the entity performs an essentially governmental function, whether the entity receives or expends the public funds, the involvement of private interests, and the extent of control and supervision exercised by governmental officials, agencies or authorities. These factors are cumulative, with no one factor being weighed more than another.

After applying this five-factor test, Cote ruled last February that the Massachusetts Film Office “is not a public instrumentality for the purposes of the Public Records Law,” and is thus not covered by the Public Records Law. He noted that there is no statute, regulation, or executive order that establishes the film office, and so it is not a public entity.

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Cambridge resident Kathryn Podgers claims she was denied service at a Cambridge restaurant last year because she came in with her guide dog. As she argued with restaurant officials, she made seven cell phone calls over a period of two hours to the Cambridge Police Department. She later filed a public records request with the city for recordings of her seven calls.

The City of Cambridge agreed to provide three of the recordings upon payment of a fee, but withheld the remaining four because they contained the voices of witnesses to the calls and were therefore exempt from disclosure pursuant to Exemption (f) of the Public Records Law.

Exemption (f) — referred to as the investigatory exemption — withholds from public scrutiny, among other things, any information provided by witnesses. The exemption is intended “to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed,” according to A Guide to the Massachusetts Public Records Law put out by the secretary of state’s office.

“The other people whose voices can be heard in [four of] the calls you made are witnesses to the incident you reported, and they are therefore protected from identification by Exemption (f),”  wrote Arthur Goldberg, Cambridge’s first assistant city solicitor, in a letter to Podgers. He added that since the other three recordings contain only her audible voice and that of the dispatcher’s, they would be provided to her.

Podgers appealed, but Cote denied her request. “The Public Records Law does not distinguish between requesters,” Cote wrote to Podgers. “Your status as the caller in the requested phone call records offers you no more right of access than any other requester.”