D Andrews v. Woburn, City of - Public Library (SPR 20202437)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2437 Janet Rabitt President Woburn Public Library 45 Pleasant Street Woburn, MA 01801 Dear Ms. Rabitt: I have received the petition of D. Andrews appealing the response of the Woburn Public Library (Library) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Andrews requested “A detailed accounting of the John Frizzell Trust received in 1987 including annual reports of receipts to and payments from the Trust with the reason for outlays and how those qualify under the terms of the bequest” and “a copy of the original Trust document.” The Library responded on December 7, 2020, asserting that it is not subject to the Public Records Law. Unsatisfied with the Library’s response, Ms. Andrews petitioned this office and this appeal, SPR20/2437, was opened as a result. On behalf of the Library, on December 18, 2020 the City of Woburn (City) provided a response including additional information regarding the Library’s status. 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, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or 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 defined in section 1 of chapter 32… G. L. c. 4, § 7(26). 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

Janet Rabitt SPR20/2437 Page 2 December 22, 2020 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 Library’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 Trasnp. 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. --------------------- Massachusetts Bay Transp. Auth. Retirement Bd. (Board II), 416 Mass. 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 function; 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. This factor requires the presence of some form of legislative or administrative action underpinning the creation of the entity. Id. at 587, 589. Based on information provided by the City in its December 18th response, the Woburn Public Library was incorporated pursuant to Chapter 273 of the Massachusetts Acts of 1885. This act provides for the incorporation of the Library, the Library’s use of City land for the establishment of a public library, and the election of Library trustees. This act constitutes a “legislative underpinning” for the creation of the Library, as discussed in Board I. See id. at 589- 90. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the Library performs an “essentially governmental function.” See id. at 590. The Library’s IRS filings state that its mission is the “[o]peration of the Woburn, MA Municipal Public Library serving the greater public of the City of Woburn, MA and surrounding communities.” Although the provision of library services is not an “essential” governmental

Janet Rabitt SPR20/2437 Page 3 December 22, 2020 function, the Library nonetheless performs a public service, which provides some evidence that Library acts as a public entity. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. The Library’s 2018 IRS filings report receipt of $1,207,005 in government grants, against a total revenue of $1,469,710. The fact that the Library receives a substantial part of its funding from governmental funds 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.” Id. Thus, this factor alone is not dispositive. Involvement of Private 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 Library’s website states that its “Board of Trustees are appointed by the Mayor and subject to confirmation by the City Council.” This factor favors a conclusion that the City exercises significant control over the Library’s activities. The Supreme Judicial Court 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 fact that the Library was established pursuant to statute, serves a public purpose, receives substantial public funding, and is subject to the control of City officials favors a consideration that the Library is a public entity subject to the Public Records Law. In its December 18th response, the City suggests that records related to the Library’s “receipt and expenditure of municipal funds appropriated in support of supplies and personnel…must be produced pursuant to” a public records request, but “documents related to the investment and expenditure of funds gifted to bequeathed directly to the [Library], and over which it acts as a public charitable corporation, are not.” Where G. L. c. 4, § 7(26) defines public records to mean “all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data…made or received by any officer or employee” of a public entity, the law does not make a distinction based on the content of the records, beyond the exemptions listed in the statute. See G. L. c. 4, § 7(26) (emphasis added). Conclusion Accordingly, the Library is ordered to provide Ms. Andrews 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

Janet Rabitt SPR20/2437 Page 4 December 22, 2020 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: D. Andrews