Colman Herman v. Salem State University (SPR 20180619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 14, 2018 SPRlS/619 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, § 1O A; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 8/4 18 Determination of the Supervisor of Records (April 13, 2018). In my April 13th determination I found it was 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 ordered the University to provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on April 26, 2018. Mr. Herman appealed and SPR18/619 was opened as a result. Current appeal The University's responses In an initial 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) 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. SPR18/619 Page 2 May 14, 2018 entity." In an April 5, 2018 response the University 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." In the April 26th response you explain "[i]t is the University's position that no such agency relationship exists between Salem State and the Foundation. Consequently, the University has no obligation to produce the records held by the Foundation in response to your request." You assert that "a finding of an agency relationship between the Foundation and the University is not supported by the relevant enabling legislation, the agreement between the parties, or the by-laws of the Foundation. These independent sources of the Foundation's authorities make clear that the private entity of the Foundation is not an agent - by law or deed - of the public University." You also refer to G. L. c. 15A, § 37(h) which provides in pertinent part: 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 "[i]t is clear from that language that the Legislature specifically omitted foundations from the definition of a public body ( even while recognizing, in a prior section of the statute, that a foundation is 'organized and operated exclusively for the benefit of an institution of public higher education .... '), and that it intended for foundations to be independent and free from the control of the institutions they support." You also indicate that "[d]eeming the Foundation to be a public agent of the University would run contrary to the plain language of the statute and the Legislature's clear intent in establishing a foundation's independence from a university." The University also provides information about the Foundation's Articles of Organization and Memorandum of Agreement (MOA). You note that the Foundation's "enabling legislation, the MOA, and the Foundation's by-laws, all demonstrate that the Foundation is not an agent of the University. The Legislature did not intend for foundations to be public bodies; the Foundation appoints its own members, makes its own decisions, and is legally distinct from the University by virtue of its 501(c)(3) status. While the Foundation exists for the benefit of the University, and the relationship between the parties is one of cooperation and collaboration, it is unarguably independent from the University's control."

Rita Colucci, Esq. SPR18/619 Page 3 May 14, 2018 Mr. Herman's appeal petition In his appeal petition Mr. Herman indicates "[a]t the time of my request (March 5, 2018), on information and belief, I assert that the contracts in question existed in the files of Salem State University employees who were not members and/or employees of the Salem State University Foundation, and thus they are public records. Also, at the time ofmy request (March 5, 2018, if the contracts are in the files of Salem State University employees who are also members and/or employees of the Salem State University Foundation, they are still public records as well. (emphasis added)." He also asserts that "[t]he bylaws of the Salem State University Foundation state that the president of Salem Stare University (now John Keenan) or his designee shall be a member of the board of the Salem State University Foundation. As an employee of Salem State University, the foundation records that are in Mr. Keenan's files are public records, as are the records of any others who are similarly situated." In a May 3, 2018 email, you refer to the University's April 5th response that explains "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." You further provide that "[t]he statute recognizes that University employees would play a dual role and that these roles would be separate and distinct from one another, and from the entity being served. If this were not the case, all work done on behalf of the Foundation by employees like Cynthia McGurren would, in tum, really be work of the University and there would be no distinction between the two organizations. But clearly there is a distinction, and that distinction is recognized and allowed by statute." You also note in the April 5th response that " [t ]he language in section ( f) of the statute reads: that 'annual financial report when received by a board of trustees shall be considered a public record as defined in clause twenty-six of chapter four.' MGL c. 15A, §37(:f) (emphasis added). It is clear that by specifically defining which records of the Foundation may become public at a particular point (only after submittal to the University's board of trustees), the legislature sends a clear message that other records of the Foundation are not public." In light of the University's responses that explain the applicability of pertinent legislation, the MOA, and the Foundation's by-laws, I find the University has met its burden to show that an agency relationship does not cause responsive records to fall under the Public Records Law. Therefore, with respect to records in the possession of the Foundation only and/or employees with dual roles within the Foundation and University, I find the University has met its burden in responding to this request. The April 5th response also provides that "[o ]ther personnel at the University, including but not limited to Institutional Advancement staff, are likewise allowed to occupy University space and to spend up to twenty-five percent (25%) of their time working on Foundation

Rita Colucci, Esq. SPR18/619 Page 4 May 14, 2018 matters." I find the University must provide additional information regarding this issue; specifically whether any employees of the University, who are not also employees of the Foundation, possess any responsive records that are subject to disclosure under the Public Records Law. 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