Joseph Dwinell v. Zoo New England (SPR 20211599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2021 SPR21/1599 Cynthia Mead Executive Vice President of External Affairs and Programing Zoo New England 1 Franklin Park Road Boston, MA 02120 Dear Ms. Mead: I have received the petition of Joe Dwinell appealing the response of the Commonwealth Zoological Corporation (Corporation), d/b/a Zoo New England. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2021, Mr. Dwinell requested the Corporation’s “complete payroll for calendar year 2020 with every employee listed by first name, last name, title, gross and base pay all in Excel.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1328 Supervisor of Records Determination (June 10, 2021). The Corporation provided a response on June 23, 2021. Unsatisfied with the Corporation’s response, Mr. Dwinell petitioned this office and SPR21/1599 was opened as a result. 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… 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

Cynthia Mead SPR21/1599 Page 2 July 13, 2021 G. L. c. 4, § 7(26). The Public Records Law 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 Corporation’s June 23rd Response On June 23, 2021, the Corporation explained “that no material facts have changed since 2011 which might affect the Public Records Division’s prior determination that the Corporation is not a public entity subject to the Public Records Law.” The Corporation confirmed that they “know of no change in law or circumstance that would affect your office’s prior determination.” Current Appeal Mr. Dwinell appealed the Corporation’s June 23, 2021 response on June 28, 2021. Mr. Dwinell’s appeal was based on “the grounds that taxpayer money is used annually to help run Zoo New England.” He stated that the Corporation is “a quasi‐state agency that continues to reject all my appeals for the agency's full payroll, by name, title, gross and base pay for all of 2020. [The Corporation] does NOT report to the state Comptroller, as other quasis do, and state [the Corporation] does not need to. I disagree.” The Corporation’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. --------------------- 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. This factor requires the presence of some form of legislative or administrative action

Cynthia Mead SPR21/1599 Page 3 July 13, 2021 underpinning the creation of the entity. Id. at 587, 589. In the June 23rd response the Corporation claimed “although the 1992 legislation was an action of a public body (the General Court), that action was in service of privatizing the Franklin Park Zoo and the Stone Memorial Zoo by creating the Corporation. We also note that the Corporation’s legal status as a Massachusetts nonprofit corporation was established through the filing of Articles of Organization in 1991, the same process by which all private nonprofit corporations are created in Massachusetts.” The Corporation was established as a non-profit corporation through filing of the Articles of Organization with the Secretary of the Commonwealth’s Office on July 1, 1991. The Massachusetts Legislature then created a nonprofit body by adopting M.G.L. Chapter 92B of the Acts of 1992 creating the current day Corporation. Based on the first factor of the public entity test, the information above favors the Corporation being a public entity. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the Corporation performs an “essentially governmental function.” See Id at 590. In the prior 2011 determination, the Supervisor found that the management and maintenance of an animal zoo is generally not considered a government function. The Corporation in the June 23rd response asserted, “to the Corporation’s knowledge, the management and operation of animal zoos is no more an essentially governmental function than it was in 2011.” Based on the second factor of the public entity test, the information favors the Corporation not being public entity. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. 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. Mr. Dwinell stated “taxpayer money is used annually to help run Zoo New England” thus making the Corporation a public entity. As mentioned above, state funding alone does not makes an entity public. 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. In the Corporation’s June 23rd response, it referenced the prior 2011 determination. The 2011 determination observed that the Corporation’s governing board expanded from a smaller,

Cynthia Mead SPR21/1599 Page 4 July 13, 2021 governmental appointed body to a larger, more independent body with only minimal representation from government appointed members. The Corporation stated that a change has occurred since the last determination in 2011. The Corporation explained, “[i]n 2017, the Grassroots Wildlife Conservation organization (a Massachusetts non-profit organization) merged with the Corporation. However, to [their] knowledge Grassroots Wildlife Conservation has no public entity attributes that would bring it under the purview of the Public Records Law, and the merger did not change the governance or any other component of the Corporation in any way that affects the Public Records Law analysis.” Based on the information above and with no significant change of governance, the fourth and fifth factors of the public entity test would favor the Corporation not being a public entity. 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. Based on the Corporation’s June 23, 2021 response and upon review of the five factor test, there has not been any change of circumstances of the Corporation since the 2011 determination finding the Corporation is not a public entity. See SPR11/0090 Supervisor of Records Determination (June 15, 2011). Therefore, I find that the Corporation is not a public entity subject to the Public Records Law. I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Dwinell Brooke Wardrop