Colman Herman v. Salem State University (SPR 20180418)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April13, 2018 SPRlS/418 Rita Colucci, Esq. General Counsel Salem State University 352 Lafayette Street Salem, MA 01970-5353 Dear Attorney Colucci: I have received the petition of Colman Herman appealing the response of Salem State University (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "hard copies of the contracts Salem State University had with the following individuals who have spoken at the university: John Legend, Ed Davis, Tom Brady, Robin Young, Peter Gammons, Newt Gingrich, Deepak Chopra, Jay Leno, Bill Belichick, George Will, Cal Ripken Jr., George H.W. Bush, Natalie Jacobson, Maya Angelou, Robert Redford, Joyce Kulhawik, and Jack and Suzy Welch. Please also provide me with a hard copy of the contract that Salem State University had with moderator Lisa Hughes." In a response dated March 16, 2018 the University responded by indicating "the contracts requested are not public records pursuant to MGL c. 4 section 7(26). The Salem State Series is produced under the auspices of the Salem State Foundation, a separate 501(c)(3) entity." Mr. Herman appealed, noting that"[o ]n information and belief, I have reason to think the contracts are in the files of Salem State University, thus making them public records." The University provided a supplemental response on April 5, 2018. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA( d); 950 C.M.R. 32.03(4). "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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Rita Colucci, Esq. SPR18/418 Page 2 April13, 2018 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal The University's April 5th response asserts that "[t]he Series is coordinated by the Foundation, in partnership with north shore businesses, and is underwritten by corporate and individual sponsors. The Series is entirely self-supporting through sponsorships and ticket sales. Revenues generated by the Series are reinvested back into the program for future years. No public or University monies are used to pay for the Series." The University provides information about the Foundation's Articles of Organization, Memorandum of Agreement and also refers to G. L. c. 15A, § 3, which provides in part the following: (h) A foundation certified by an institution's board of trustees under the provisions of this section shall not be deemed to be an agency, board, bureau, department, division, commission, authority or other subdivision of the commonwealth. Members of the governing boards of a foundation who are not already state employees shall not be considered to be state employees for the purposes of chapters two hundred and sixty-eight A and two hundred and sixty eight B. You further assert that "[p] er statute, University employees may serve dual roles, and the University may allow use of its facilities to the Foundation. This does not mean that records that are handled, stored and otherwise received as Foundation documents by employees in University spaces suddenly become 'public.' To accept such a proposition would render all Foundation documents public, and in effect, change the Foundation's legal status to a quasi-public agency." In an April 8, 2018 email, Mr. Herman contends "[i]fthe contracts exist in the files of Salem State University employees who are not employees of the Salem State University Foundation, the contracts are clearly public records." He also indicates "[i]fthe contracts are in the files of Salem State University employees who are also employees of the Salem State University Foundation, I believe they are public records as well." Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607-08 (1996) (discussing agency relationship between a public and private entity within the context of the Public Records Law). Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289- 90 (1979).

Rita Colucci, Esq. SPR18/418 Page 3 Aprill3, 2018 Based on the University's response, it is unclear whether there is an agency relationship between the University and the Foundation that would cause responsive records to fall under the Public Records Law. I find the University must provide additional information regarding this ISSUe. Conclusion Accordingly, the University is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman