Shibley, Craig v. Worcester County Sheriff's Civil Process Division, Inc. (SPR 20140120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords May 6, 2014 SPR14/120 Mr. Craig P. Shibley 2 Lost Oak Road West Boylston, MA 01583 Dear Mr. Shibley: I have received your February 21, 2014 petition appealing the response of the Worcester County SheriffCivil Process Division, Inc. to your February 10,2014 request for records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested the name of the Deputy Sheriff who served you with papers at your home residence on October 11, 2013. Public records is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The Massachusetts Public Records Law only applies to records held by a governmental entity, such as a state agency or municipality, not private organizations or private business entities. A governmental entity is defined as, "any authority established by the General Court to serve a public purpose, any department, office, commission, committee, council, board, division, bureau, or other agency with the Executive Branch of the Commonwealth, or within a political subdivision of the Commonwealth. It shall not include the legislature and the judiciary." 950 C.M.R. 32.03. In a February 28, 2014 email, David H. Tuttle, President of the Worcester County Sheriff Civil Process Division, Inc., located at 240 Main Street, Worcester, Massachusetts inforn1ed this office that the corporation is not a state agency, nor are the individuals who are employed by the corporation government employees. Mr. Tuttle provided information to this office in order that I might render a detern1ination on your public records appeal. Additionally, this office has reviewed the "Articles of Organization" filed by Worcester County Sheriff Civil Process Division, Inc. on August 31, 2011 with the Corporations Division of the Secretary of the Commonwealth (Corporations Division). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Craig Shibley SPR14/120 Page Two May 6, 2014 My office conducted a review to determine whether the Worcester County Sheriff Civil Process Division, Inc. (Civil Process Division) is considered a public entity for purposes of the Public Records Law by analyzing the structure and character of the organization utilizing 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 of private 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. Creation of the Entity The first factor considered within this analysis is the means by which the Civil Process Division was created. The determining issue within this factor is not what body or entity may have created the Civil Process Division, but the means by which the business entity was established. See Board I at 589-90. The analysis of this factor requires the presence of some form of legislative or administrative underpinning as the impetus for creation. Board I at 587, 589. The Civil Process Division was privately incorporated on August 31, 2011. In a review of publicly available filings through the Corporations Division, I find no information to indicate the existence of any type of legislative or administrative underpinning that may have acted as a foundation for its creation. As a result, an analysis of this factor strongly favors a detern1ination that the Civil Process Division, Inc. is not considered a public entity. Governmental Function The second factor within this analysis concerns the issue of whether the Civil Process Division performs some type of essentially governmental function. See Board I at 590. The

Mr. Craig Shibley SPR14/120 Page Three May 6, 2014 corporation's purpose is to serve summons, warrants, subpoenas, and other legal procedures requiring legal notification. The corporation is entitled by statute to collect fees for the service of civil process. See G. L. c. 37, §§ 3, 11, and 12. These functions are carried out by the corporation's employees, who have been duly sworn-in by a Sheriff in a particular county ofthe Commonwealth to perforn1 service of process in civil law matters under the title, "Deputy Sheriff." Essential governmental functions are limited to those that have "traditionally [been] the exclusive prerogative of the state." West v. Atkins, 47 U.S. 42, 47 (1974). While service of process on a state-wide basis has generally been performed by government officials, such as state-employed member of each of the counties' Sheriffs Departments, the Deputy Sheriffs in the Civil Process Division perform the same duties as both Deputy Sheriffs who are state employees, and Constables, who are not government employees of the Commonwealth. Both Deputy Sheriffs in the Civil Process Division and Constables are appointed by a government entity to carry-out some functions that would have been, in the past, exclusive to a government entity. While Constables are appointed and sworn-in by municipalities to serve civil process, Deputy Sheriffs in the Civil Process Division are appointed by the Sheriffs Department in a particular county to serve civil process only, similar to Constables. The major role as a process server is not a function or duty that is exclusive to a government entity. Therefore, this analysis favors a determination that the primary function of the Worcester County Civil Process Division is not an essentially governmental one and does not meet the criteria of this factor. Receipt and Expenditure of Public Funds The third factor examines whether the Civil Process Division receives or expends public (government) funds. Mr. Tuttle informed this office that the Civil Process Division receives no funding from the government. Revenue is generated by the fees charged for Process serving in civil matters. The lack of governmental funding suggests that the Civil Process Division is not a public entity. In a review of the publicly available filings, there is no information to indicate that the Commonwealth retains any type of ownership powers or interests in any funds available to the Civil Process Division. Therefore, the criteria for this factor has not been satisfied and favors consideration that the Civil Process Division functions as a private organization. Involvement of Private Interests, Control and Supervision The final two factors considered within this analysis relate to the extent, involvement, control and supervision exercised by governmental officials.

Mr. Craig Shibley SPR14/120 Page Four May 6, 2014 According to the annual report filed for 2013, the Civil Process Division lists three individuals as corporate officers and three members ofthe Board of Directors. The organizational officers and Directors all hold these positions as private citizens and private sector workers, not government employees or government officials. Moreover, all of the individuals who are employed by the Civil Process Division are paid a salary and receive benefits directly from the Civil Process Division's revenue, not from the government. The members of the Civil Process Division conduct service of process in the Worcester County area, and have received basic training through police recruitment programs, and through any law enforcement training offered through the Sheriffs Departments, much in the same way that Constables receive training on the municipal level. Upon successful completion of training, the individuals who are employed by the Civil Process Division may seek to be sworn-in to act as "Deputy Sheriffs." This training allows the Civil Process Division to operate on its own without the daily supervision and control over the unit and supervision of government law enforcement officials. See G. L. c. 262; see also G. L. c. 37. The Commonwealth does not provide any salaries or benefits such as vacation, sick, health or pension benefits to members of the Civil Process Division. Based on the information provided by Mr. Tuttle during a discussion with a member of my staff, and this office's review of all the publicly available information, none ofthe inforn1ation indicates a level of involvement, control or supervision granted to any government officials that is significant enough to support a finding that the Civil Process Division acts as a public entity. Therefore, the analysis of these factors generally favors a consideration that the Civil Process Division functions as a private organization. While it may lead the public to believe that the corporation is a public entity by use of the word "Sheriff' in its corporate name, use of a Sheriffs Star with the Commonwealth Coat of Arms in signage and badges of the corporation, after a thorough review of each factor of the five point government entity test, I find that the Worcester County Sheriff Civil Process Division, Inc. is not a public entity. This office has advised Mr. Tuttle that the use of the Great Seal of the Commonwealth and/or Commonwealth Coat of Arms by a non-government entity is improper and should cease. Whereas I find that the Worcester County Sheriff Civil Process Division, Inc. is not a public entity, there is no obligation to disclose records in response to a public records request made directly to the Worcester County Sheriff Civil Process Division, Inc. Accordingly, this office holds no authority to compel the Worcester County Sheriff Civil Process Division, Inc. to release the name of the Deputy Sheriff who served the civil process to you, or any other records held by the Worcester County Sheriff Civil Process Division, Inc. Your administrative appeal is now closed.

Mr. Craig Shibley SPR14/120 Page Five May 6, 2014 The Public Records Law and the judicial process are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery or court order. Commonwealth v. Wanis, 426 Mass. 639 (1998). If you are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Supervisor of Records cc: Mr. David H. Tuttle