Bliss, Kevin v. Fitchburg Public Schools (SPR 20140075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April9, 2014 SPR14/075 Mr. Kevin Bliss 7 4 7 Central Street Leominster, MA 01453 Dear Mr. Bliss: This office has received your petition appealing the response of the McKay Arts Academy Parent-Teacher Organization (PTO) to your request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, you requested copies of records relating to the US TaeKwonDo organization. In response to your request, you were notified that the PTO is a private entity that is independent from the Fitchburg Public Schools (School), and thus not subject to the Public Records Law. In determining the public status of an entity, this office will generally utilize a five (5) factor test developed by the Supreme Judicial Court of Massachusetts. Massachusetts Bay Transp. Auth. Retirement Bd. v. State Ethics Comm'n, 414 Mass. 582 (1993) (Board I); see also Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Retirement Bd., 416 Mass. 1007 (1993) (Board II). The five factor test consists of the following: 1) the means by which the entity was created; 2) whether or not the entity performs an essentially governmental function; 3) whether or not the entity receives or expends public funds; 4) the involvement ofprivate interests; and 5) the extent of control and supervision exercised by governmental officials, agencies or authorities. The five factors of this test are cumulative where no one factor is dispositive. Board I at 587. Additionally, these factors must be balanced in order to properly make a determination as to the status of the entity. Board I at 589. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Kevin Bliss SPR14/075 Page Two April 9, 2014 Upon a review of your request and other relevant documentation, it is my finding that the PTO is not a public entity with respect to the Massachusetts Public Records Law. The PTO was created as a private, tax exempt organization with a primary purpose of providing "cultural activities to students" (See 2013 IRS Form 990 Return of Organization Exempt from Income Tax). The PTO does not receive or expend public funds and is not subject to the involvement, control or supervision of governmental officials. Furthermore, the PTO's function of providing cultural activities is not one that has resided within the exclusive domain of governmental entities. See West v. Atkins, 47 U.S. 42, 47 (1974). With respect to any subsequent petitions you may wish to submit to this office pursuant to a request for records, this office requests that you please submit copies of your original records request and all responses that were received from a records custodian. The materials that you provided for this matter included information that was copied and pasted from various communications, thus creating an additional effort to discern the nature of your request in administering this appeal. It is my finding that the PTO is not obligated to disclose records in response to your request and this office holds no authority to compel the PTO to release responsive records. Accordingly, this administrative appeal is closed. Shawn A. Williams Supervisor of Records cc: Fitchburg Public Schools