Shibley, Craig v. Central Mass Emergency Medical Systems Corporation (SPR 20140570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 21, 2015 SPR14/570 Mr. Edward McNamara Central Massachusetts Emergency Medical Systems Corporation 361 Holden Street Holden, MA 01520 Dear Mr. MeNa mara: I have received the petition of Craig Shibley appealing the response ofthe Central Massachusetts Emergency Medical Systems Corporation (CMEMSC) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested copies of various CMEMSC records. Included within an October 2, 2014 response letter, CMEMSC Attorney Douglas T. Radigan asserted that the CMEMSC is not a public entity and not subject to the Public Records Law. While the CMEMSC has withheld certain responsive records in accordance with this position, the CMEMSC did provide Mr. Shibley with copies of other responsive records. Status of the CMEMSC In order to determine whether CMEMSC is considered a public entity, this office is required to analyze 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Edward McNamara SPR14/570 Page Two January 21,2015 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. Analysis of Factors Upon a review of Mr. Shibley's request and other relevant documentation, it is my finding that the CMEMSC is not a public entity with respect to the Massachusetts Public Records Law. CMEMSC was created as a private, tax exempt organization without the presence of some form of legislative or administrative underpinning as the impetus for its creation. See Board I at 587, 589. As stated within CMEMSC 2013 Financial Statements filed with the Massachusetts Office of the Attorney General, CMEMSC "operates and maintains communication equipment purchased with grant funds from both the federal and state governments." Furthermore, this function does not present as one that has resided within the exclusive domain of governmental entities. See West v. Atkins, 47 U.S. 42, 47 (1974) (essential governmental functions are limited to those that have traditionally [been] the exclusive prerogative ofthe state). While CMEMSC does receive a more than nominal amount of funding from governmental grants, this funding source comprised less than half of the Corporation's total revenue for the 2013 fiscal year. (See 2013 IRS Form 990 Return of Organization Exempt from Income Tax). CMEMSC members include representatives from both public and private entities, although CMEMSC officers and Board members are not .compensated and are nominated by CMEMSC members to serve for a specific length of time. The CMEMSC employs an Executive Director and Assistant Director, neither of whom functions as a governmental official or on behalf of a governmental entity while managing the organization's functions. Upon my thorough review of these factors, it is the finding of this office that the CMEMSC is not a public entity with respect to the Massachuset Public Records Law. Accordingly, while CMEMSC provided records to Mr. Shibley, fi d it is not obligated to do so pursuant to the Public Records Law. Accordingly, whereas t is f ce holds no authority to compel CMEMSC to release responsive records this ad · st at appeal is now closed. Supervisor of Records cc: Mr. Craig Shibley