Collin Dias v. Veteran's Association-Bristol (SPR 20191971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records October 4, 2019 SPR19/1971 Delight D. Bucko Executive Director Veteran's Association of Bristol County 755 Pine Street Fall River, MA 02720 Dear Ms. Bucko: I have received the petition of Collin Dias appealing the response of the Veteran's Association of Bristol County (V ABC) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dias requested financial records regarding the V ABC, including "receipts, expenditures, and purchases" as well as records relating to the organization's budget. Prior Appeal This request was the subject'of a prior appeal, SPRl 9/1869, which I closed based on notification that the VABC had provided a response to Mr. Dias. The V ABC responded on September 26, 2019, asse1iing that it is not a public entity, and thus not subject to the Public Records Law. The Public Records Law The Public Records Law applies to all records: ... made or received by any officer or employee of any agency, executive office, depatiment, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general comi to serve a public purpose, or any person, corporation, association, patinership ot other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as 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

Delight D. Bucko SPR19/1971 Page 2 October 4, 2019 defined in section 1 of chapter 32 ... G. L. c. 4 § 7(26). The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. The VABC's Status The Supreme Judicial Court has developed a five factor test to determine whether an organization is considered a "public entity" for purposes of the Public Records Law. See Massachusetts Bay Transp. Auth. Retirement Bd. v. State Ethics Comm'n (Board I), 414 Mass. 582, 589-91 (1993) (outlining the five-factor test); see also Globe Newspaper Co. v. t Massachusetts Bay Transp. At1th. Retirement Bd. (Board II), 416 Mass. 1007, 1007 (1993) (applying the test in the context of the Public Records Law). The five factors are as follows: 1) the means by which the entity was created; 2) whether or not the entity performs an essentially government functibn; 3) whether or not the.entity receives or expends public funds; 4) the involvement of private interest; ·and 5) the extent of control or supervision exercised by government officials, agencies, or authorities over the entity . . Board I at 587. The five factors of this test are cumulative, and no one factor is dispositive. Id. Creation of the Entity The first factor considered in this analysis is the means by which the entity was created. See Board I at 590. The determining issue within this factor is not what body or entity created the VABC, but the means by which the organization was established. See Board I at 589-90. This factor requires the presence of some form of legislative or administrative action underpinning the creation of the entity. Board I at 587, 589. The VABC was privately incorporated on August 25, 1987 as a 50l(c)3 public charity to provide care and support for veterans. In a review of publicly available filings through the Office of the Secretary of the Commonwealth, this office finds no information to indicate the existence of any type of legislative or administrative underpinning to the V ABC's creation. As a result, an analysis of this factor strongly favors a determination that the MSPCA is not a public entity. Pe,formance ofa n Essentially Governmental Function The second factor in this analysis concerns whether the VABC performs an essentially governmental function. See Board I at 590. Essential governmental functions are those powers

Delight D. Bucko SPR19/1971 Page 3 October 4, 2019 that have been "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison, 419 U.S. 345,352 (1974). Per its Articles of Organization, filed with the Secretary of the Commonwealth, the V ABC was formed for the purposes of care and support for military veterans and their families. Veterans outreach and charitable support has not traditionally been considered an exclusive state · function. Therefore, this factor weighs against a finding that the V ABC is a public entity. Receipt and Expenditure ofP ublic Funds The third factor examines whether the entity receives or expends public funds. In its IRS Form 990 filing for 2017, the VABC reported revenue of $201,302, of which $136,259 came from government grants, and $65,043 from other sources. The fact that the V ABC receives a substantial part of its revenue from governmental funding weighs towards a finding that it is a public entity. However, the Supreme Judicial Court has stated that "receipt by an entity of substantial funding from a State agency does not necessarily indicate that the entity is a public instrumentality. Board I at 590. Thus, this factor i' alone is not dispositive. Involvement ofP rivate Interests; Control and Supervision The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials. The V ABC's employees and Board members hold their positions as private citizens and private sector workers, not as government employees or government officials. All of the individuals employed by the V ABC are paid a salary from the VABC's revenue, not from the government. Further, the VABC is not subject to the control or oversight of a governmental entity. Given these. circumstances, none of the information obtained by this office indicates a level of involvement, control, or supervision granted to any government officials to support a finding that the V ABC acts as a public entity. The Supreme Judicial Comi has stated that the five factors of the public entity test are to be balanced, and no one factor is dispositive. Board I at 587. On balance, the lack of govenunental involvement in the creation and the operation of the V ABC indicates that it is not a public entity. Mere receipt of a govermnental grant is not sufficient to render it a public entity. Therefore, the analysis of these factors favors a consideration that the V ABC is not a public entity, and therefore not subject to the Public Records Law.

Delight D. Bucko SPR19/1971 Page 4 October 4, 2019 Conclusion Upon a review of each factor of the five-point public entity test, I find that the VABC is not a public entity, and thus not obligated to disclose records in response to requests made directly to the VABC under the Public Records Law. Accordingly, this office holds no authority to compel the V ABC to release any responsive records. Therefore, I consider this administrative appeal closed. Sincerely, ~l~ Supervisor of Records cc: Collin Dias