ANN K. LAMBERT vs. EXECUTIVE DIRECTOR OF THE JUDICIAL NOMINATING COUNCIL.

ABRAMS, J. At issue is whether a questionnaire completed by an applicant for judicial appointment and submitted to the Governor through the Judicial Nominating Council (JNC) is a public record under G. L. c. 4, s. 7. Under our Constitution, the Governor has the exclusive power to nominate and appoint "all judicial officers." Part II, c. 2, s. 1, art. 9, of the Massachusetts Constitution. [Note 1]

On April 19, 1995, the plaintiff, Ann Lambert, asked the executive director of the JNC for copies of its internal procedures as well as a copy of the completed "Personal Data Questionnaire" of one candidate for judicial appointment. The executive

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director complied with the request as to the internal procedures of the committee but refused the request as to the questionnaire. [Note 2] On June 28, 1995, eight days after the Governor nominated the candidate, Lambert appealed from the denial of her request, pursuant to G. L. c. 66, s. 10 (b), to the acting supervisor of public records within the office of the Secretary of the Commonwealth.

On August 10, 1995, before the acting supervisor issued a decision, Lambert commenced this action in the Superior Court seeking a declaration that the questionnaire was within the public records statute and an injunction compelling its release. A Superior Court judge stayed the proceedings pending the determination of the acting supervisor of public records. On August 30, 1995, the acting supervisor issued a decision ordering the executive director of the JNC to release the completed questionnaire, excepting certain redacted portions [Note 3] which the acting supervisor believed were exempted by G. L. c. 4, s. 7, Twenty-sixth (c). [Note 4]

The executive director of the JNC and Lambert both moved for summary judgment in the Superior Court. The Superior Court judge declared that the JNC and its executive director are not subject to the public records statute both because neither is an entity within the meaning of the public records law, and because to hold otherwise would interfere impermissibly with the Governor's constitutional power in violation of art. 30 of the Massa-

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chusetts Declaration of Rights. [Note 5] Lambert appealed. We granted the JNC's application for direct appellate review. We conclude that the Superior Court judge correctly declared that the records of the JNC are not public records.

Since the mid 1970's, each Governor has established a judicial nominating commission or council (JNC) to assist in identifying and screening applicants for judicial appointment. The Governor created the current JNC by Executive Order 355. The JNC's stated purpose is "to advise the Governor with respect to appointments of judges, clerk-magistrates and clerks of court." Executive Order 355, s. 1. Section 14 of that order provides: "All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the Executive and Regional Committees but shall be available to the Governor and the Governor's designee. It is intended that the names of individuals forwarded to the Executive Committee and to the Governor be confidential to the extent possible, and intentional breaches of this important responsibility may be grounds for removal." Thus, the Governor, by his executive order, has determined that he is best able to exercise his constitutional duty if the JNC's records and deliberations remain confidential. Lambert contends that, despite the Governor's determination to keep the JNC's records confidential, G. L. c. 4, s. 7, Twenty-sixth, [Note 6] governs and that the JNC's questionnaire is a "public record." We do not agree.

The Justices have said that "the Governor has broad discretion to select the means he will use in executing a constitutional duty." Opinion of the Justices, 368 Mass. 866, 874 (1975). The Governor may enlist aid, privately or publicly, formally or informally, as he alone deems appropriate, as long as "he does not surrender to them his responsibility to select a candidate and

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to make the nomination and appointment." Id. at 874-875. Members of the JNC do not hold any "civil or public office" and may exercise "no part of the sovereign power." Id. at 876.

Neither the Legislature nor the Judiciary are expressly included in G.L. c.4, s. 7, Twenty-sixth. We have noted that "[t]he Legislature is not one of the instrumentalities enumerated in G. L. c. 4, s. 7, Twenty-sixth, whose records are subject to public disclosure. It is not an 'agency, executive office, department, board, commission, bureau, division or authority' within the meaning of s. 7, Twenty-sixth." Westinghouse Broadcasting Co. v. Sergeant-at-Arms of the Gen. Court, 375 Mass. 179, 184 (1978). We also have determined that court records and "all else properly part of the court files were outside the range" of inspection based on the text of G. L. c. 4, s. 7, Twenty-sixth. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977). Likewise, the Governor also is not explicitly included in clause Twenty-sixth. "Like the Legislature and the Judiciary, the Governor possesses incidental powers which he can exercise in aid of his primary responsibility." Opinion of the Justices, supra at 874.

The JNC was created to assist the Governor in carrying out his constitutional obligation. It is an interviewing and screening body whose sole purpose is to assist the Governor. [Note 7] It has no public function. The JNC's records are essentially the Governor's records on judicial appointments. Those records are not within G. L. c. 4, s. 7, Twenty-sixth. [Note 8]

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Lambert argues that Babets v. Secretary of Human Servs., 403 Mass. 230 (1988), and New Bedford Standard-Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404 (1979), control this case and require a conclusion that the JNC's records are public records. We do not agree.

In Babets, the Secretary of Human Services withheld certain documents during discovery, asserting executive privilege, a privilege which we concluded did not exist. We determined that we need not recognize an executive privilege because the discovery order did not interfere with the Executive's power. Babets, supra at 233. The case at bar is dissimilar in two important respects; the JNC has not attempted to invoke any privilege and the questionnaire is used by the Governor solely to fulfil his constitutional duty. The questionnaire has no public function.

In New Bedford Standard-Times Publishing Co., supra, we said that certain provisions of the Criminal Offender Record Information Act, G. L. c. 6, s. 172, prohibiting access to the alphabetical index of criminal defendants kept by a court, did not violate the separation of powers. In that case we said, "There is no showing here that the denial of public access impairs the ability of the District Court to function.... The present case shows no conflict between legislation or administrative regulation, on the one hand, and any judicial rule or order, on the other." Id. at 412. Were we to conclude that the public records law included the records of the JNC, a conflict could arise between the legislation and the executive order which could impair the Governor's ability to exercise his constitutional responsibility. "[O]ur duty [is] to construe a statute in a way to avoid constitutional problems." Waltham Tele-Communications v. O'Brien, 403 Mass. 747, 751 (1989), quoting Attorney Gen. v. Colleton, 387 Mass. 790, 800 (1982).

Lambert also asserts that the public policy of openness of government requires that we treat the questionnaire as a public record. There is no merit to that contention. The policy underlying public process is fulfilled by the Executive Council. The Executive Council's questionnaire and the Executive Council's hearings on the Governor's nominees amply satisfy the public interest in obtaining information about the Governor's choice.

Judgment affirmed.