Colman Herman v. Salem State University (SPR 20180820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 18, 2018 SPR18/820 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, § IOA; 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 appeals This request was the subject of previous appeals. See SPR18/418 Determination of the Supervisor of Records (April 13, 2018); SPR18/619 Determination of the Supervisor of Records (May 14, 2018). In my May 14th determination I found the University had 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 found the University had met its burden in responding to this request. However, I found the University must provide additional information regarding 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. 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 May 29, 2018. Mr. Herman appealed and SPR18/820 was opened as a result. 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. SPR18/820 Page 2 June 18, 2018 Current appeal The University's responses In an April 26, 2018 response the University referred 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. G. L. C. 15A, § 37(h). In a May 29th response you assert "[i]t is the University's position that any employee of the University may spend up to 25% of their time working on Foundation matters, and during that time, any documents that the University employee comes into contact with remain private Foundation documents, not subject to MGL c. 4 §7(26)." You refer to G. L. c. 15A, § 37(d) which provides in pertinent part: The board of trustees of an institution which a foundation supports is authorized to permit the use without compensation of facilities and personnel services of the institution by the foundation; provided, however, that in no event shall an employee of the institution spend more than twenty-five percent of his work hours engaged in services for a foundation. G. L. C. 15A, § 37(d). You assert that this statute "also allows for use of university facilities by a foundation" and that "[i]n neither instance -while in the custody of university employees, or while kept in university facilities - are foundation records public." You argue that "university employees may spend part of their working day performing services for a foundation. The statute does not require employees to have a specific title or position with a foundation to do so. The only restriction on the employees is that they do not exceed 25% of their work time on foundation business." With respect to the interaction between the Foundation and the University, you indicate "[w]hile working on foundation business, foundation records that are handled, stored and otherwise received by university employees do not suddenly become 'public.' To accept such a proposition would render all foundation documents public." You provide the example of Vice President McGurren's administrative assistant who does not hold a title with the Foundation,

Rita Colucci, Esq. SPR18/820 Page 3 June 18, 2018 "yet, in her duties assisting Vice President McGurren, she comes into contact with and helps to manage Foundation records." You also refer to the associate director of advancement events and sponsorships who works on the production of the Salem State Speaker Series, a Foundation event. You indicate "[i]n this capacity, she may come into contact with Foundation records, which again, remain private Foundation records." You argue that when reading G. L. c. 15A, § 37(h) and G. L. c. 15A, § 37(d) together, "it is evident that the Legislature did not intend for foundation documents to become public simply by virtue of their presence in the hands, files or email boxes of University employees who are working on Foundation business matters." The University also refers to G. L. c. 15A, § 37(f) which "mandated that a foundation's annual financial accounts be provided to the university's board of trustees, and 'when received by a board of trustees shall be considered a public record as defined in clause twenty-sixth of section seven of chapter four."' You assert that "[i]t stands to reason that if the Legislature intended for all foundation documents to become pubic merely by receipt by a university employee, it would not have gone to the trouble to explicitly deem foundation financial records public when in the hands of university trustees. Instead, it would have assumed that when those documents landed in the laps of university trustees, they automatically became public (as Mr. Herman would urge you to find is the case)." With respect to the existence of responsive records, as explained in its May 29th response, as well as supplemental responses on May 31, 2018 and June 12, 2018, the University found three contracts in the files of two university employees. In the May 31st response you note "[b]oth university employees' duties included being liaison between the executive director of the Foundation and prospective speakers' agents. The first employee retired in 2016; she was replaced by the second employee, who continues to hold that role to the present." In its June 12th response the University notes "[t]he contract was found in an archived email file belonging to a retired employee. Whether the employee is a current employee or retired employee makes no difference to the matter at hand." In a June 18, 2018 email Mr. Herman asserts "I continue to assert that at least the contracts in the files of the director who no longer works for the university are public records." However, given the relevant statutory provisions, it does not appear that the public status of these records depends on whether an employee currently works at the University. See G. L. c. 15A, § 37(h). In light of the University's May 29t11, May 31st, and June 12th responses that explain the applicability of various sections of G. L. c. 15A to the responsive records, I find the University has met its burden in responding to this request. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 454-55 (2007) ("[w]e do not overlay the words of a statute with a convention of statutory construction that 'would frustrate the general beneficial purposes of the legislation.'")

Rita Colucci, Esq. SPR18/820 Page 4 June 18,2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman