Malden News Network v. Mystic Valley Regional Charter School (SPR 20221015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2022 SPR22/1015; SPR22/1016 Stephanie Solio Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Ms. Solio: I have received the petitions of Malden News Network and Commonwealth Transparency (requestor) appealing the response of the Mystic Valley Regional Charter School (School) to multiple requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 18, and February 25, 2022, the requestor made requests for various categories of records. Previous Appeals These requests were the subject of previous appeals. See SPR22/0321, SPR22/0322, and SPR22/0323 Determination of the Supervisor of Records (March 15, 2022); SPR22/0633 Determination of the Supervisor of Records (March 31, 2022). In my March 15th and March 31st determinations, I ordered the School to provide a response to the requests. Subsequently, an attorney for the School responded on April 4, 2022, asserting that the School “will no longer be responding to requests, including pending ones, under M.G.L.c.66 for public records.” Unsatisfied with the School’s response, the requestor appealed, and this case 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 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

Stephanie Solio SPR22/1015; SPR22/1016 Page 2 May 12, 2022 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). 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 School’s Status as a Public Entity In its April 4, 2022 response, the School states that it “will no longer be responding to requests, including pending ones, under M.G.L.c.66 for public records. As reasons therefore, the School states that as a Commonwealth Charter School, it does not fall under the category of entities handling public documents.” The School concludes that “because the statute does not warrant it, and for the policy reasons given . . . MVRCS will no longer be honoring requests under c.66.” 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 multi-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 the entity performs an essentially governmental function; 3) whether the entity receives or expends public funds; 4) the involvement of private interests; and 5) the extent of control and supervision exercised by government officials, agencies, or authorities over the entity. Board II at 1007; Board I at 587. The five factors of this test are cumulative, and no one factor is dispositive. Board I at 587. 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 action underpinning the creation of the entity. Id. at 587, 589. As noted in the School’s response, commonwealth charter schools are created pursuant to G. L. c. 71, § 89. This statute provides in part: A commonwealth charter school shall be a public school, operated under a charter

Stephanie Solio SPR22/1015; SPR22/1016 Page 3 May 12, 2022 granted by the board [of elementary and secondary education], which operates independently of a school committee and is managed by a board of trustees. The board of trustees of a commonwealth charter school, upon receiving a charter from the board [of elementary and secondary education], shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. G. L. c. 71, § 89(c). The statute further describes the specific procedures for establishing individual charter schools, imposes strict limits on the number of charter schools allowed to operate in the commonwealth at any time, sets parameters on where they may be located, specifies and limits their powers to carry out their charter programs, and prescribes the manner in which they are funded. See G. L. c. 71, § 89 (d)–(f), (i)(1), (k), (ff)–(hh). The School notes in its response that charter schools “have such other powers available to a business corporation formed under chapter 156B that are not inconsistent with [G. L. c. 89].” G. L. c. 71, § 89(k)(8). Although the statute cited above does not explicitly state that charter schools are subject to G. L. c. 66, it does imbue charter schools with “the power to . . . sue and be sued, but only to the same extent and upon the same conditions that a municipality can be sued.” G. L. c. 71, § 89 (k)(2). Further, the statute provides that “notwithstanding [G. L. c. 71, § 89] or any other general or special law to the contrary, for the purposes of chapter 268A: (i) a charter school shall be deemed to be a state agency; and (ii) the appointing official of a member of the board of trustees of a charter school shall be deemed to be the commissioner.” G. L. c. 71, § 89(u); see also G. L. c. 268A (regulating conduct of public officials and employees). The statute further provides that “a charter school shall operate in accordance with its charter and the provisions of law regulating other public schools.” G. L. c. 71, § 89(s). Additionally, the statute states that “employees of charter schools shall be considered public employees for purposes of tort liability under chapter 258 and for collective bargaining purposes under chapter 150E.” G. L. c. 71, § 89(y); see also G. L. c. 258 (controlling claims and indemnity procedures for the Commonwealth and public employees); G. L. c. 150E (controlling conciliation and arbitration of industrial disputes). Taken together, these provisions of G. L. c. 71, § 89 tend to treat charter schools as public entities. Based on a review of the statute as described above, G. L. c. 71, § 89 constitutes the direct “legislative underpinning” for the creation of a commonwealth charter school, as discussed in Board I. See Board I at 589–90. As a result, analysis of this factor strongly favors a determination that the School is a public entity. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the entity performs an “essentially governmental function.” See id. at 590.

Stephanie Solio SPR22/1015; SPR22/1016 Page 4 May 12, 2022 As noted on the School’s website, “the school serves more than 1,600 students in grades K-12 on four campuses.” The website also states that “the Mission of the Mystic Valley Regional Charter School is to provide the opportunity of a world class education characterized by a well- mannered, disciplined and structured academic climate.” In Massachusetts, the provision of free public kindergarten through 12th grade education to residents of the Commonwealth is an important governmental function. See Mass. Const. Pt. 2, c. 5, § 2 (encouraging education and public schools); see also G. L. c. 71, § 4 (requiring towns maintain high schools “for the benefit of all inhabitants”). Nonetheless, kindergarten through 12th grade education has not traditionally been considered an exclusive state function, and numerous private entities provide such education across the Commonwealth. Accordingly, an analysis of this factor does not clearly sway the determination as to whether the School is a public entity. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. Board I at 590. 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. The Court has also stated that “analysis of this factor . . . should focus on the use of the public funds received by the entity in question, taking into consideration the private interests involved.” Board I at 591. Substantial funding for charter schools is provided through the state treasury and the Department of Elementary and Secondary Education (DESE). The statute governing charter schools provides a formula for calculating the “charter school tuition amount” for each school district sending students to a charter school. See G. L. c. 71, § 89(ff). The statute further authorizes the state treasurer to deduct each school district’s “charter school tuition amount” from that district’s state school aid, and to disburse to each charter school the total “charter school tuition amount.” See G. L. c. 71, § 89(ff). The statute also provides for limited facilities funding from DESE, and in certain cases for limited transportation funding from the district in which the charter school is located. The School’s website also notes that it is eligible to receive state and federal grants. Although charter schools may “solicit and accept grants or gifts for school purposes,” based on the funding provisions of G. L. c. 71, § 89(ff), and information provided on the School’s website, the substantial portion of a charter school’s funding is received from public sources and expended for public education. See G. L. c. 71, § 89(ff), (k)(7). Accordingly, an analysis of this factor weighs in favor of the School being a public entity. Involvement of Private Interests The fourth factor in this analysis relates to the involvement of private interests. See Board I at 591; Board II at 1007. A strictly limited and circumscribed involvement of private interests is permitted during

Stephanie Solio SPR22/1015; SPR22/1016 Page 5 May 12, 2022 the application process to establish a charter school. The applicable statute provides for the following: Persons or entities eligible to submit an application to establish a charter school shall include, but not be limited to: (i) a nonprofit business or corporate entity; (ii) 2 or more certified teachers; or (iii) 10 or more parents; provided, however, that for profit business or corporate entities shall be prohibited from applying for a charter. The application may be filed in conjunction with a college, university, museum or other similar non-profit entity. Private and parochial schools shall not be eligible for charter school status. G. L. c. 71, § 89(d). Although private interests may be involved in the application process, once a charter is granted, as previously noted, the board of trustees of a charter school “shall be deemed to be public agents.” G. L. c. 71, § 89(c). Accordingly, the limited involvement of private interests in the application to establish a charter school does not clearly sway the determination as to whether or not the School is a public entity. Control and Supervision by Government Officials The fifth and final factor in this analysis considers “the extent of control and supervision exercised by government officials, agencies, or authorities” over the entity. See Board I at 591; Board II at 1007. DESE is authorized by statute to grant school charters for five years, and is responsible for the revocation and renewal of such charters. See G. L. c. 71, § 89 (dd). Additionally, DESE is authorized to impose conditions upon the renewal of charters, may place charter schools in probationary status, and may revoke a charter when conditions are not fulfilled, or when a school violates a provision of its charter. See G. L. c. 71, § 89 (dd)–(ee). Additionally, the State Auditor is authorized to “investigate the budget and finances of charter schools and their financial dealings, transactions and relationships, and shall have the power to examine the records of charter schools and to prescribe methods of accounting and the rendering of periodic reports.” G. L. c. 71, § 89 (jj). Further, as previously noted, a commonwealth charter school “is managed by a board of trustees” who “shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school.” G. L. c. 71, § 89(c). Where the “control and supervision” of charter schools is almost entirely in the hands of government officials, an analysis of this final factor strongly favors a determination that the School is a public entity. The Five Factors on Balance 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 existence of a direct legislative underpinning, the receipt and expenditure of substantial public funds, and the control

Stephanie Solio SPR22/1015; SPR22/1016 Page 6 May 12, 2022 and supervision almost exclusively by government officials and agencies indicate that commonwealth charter schools are public entities. Subsequently, I find that the School is a public entity subject to the Public Records Law. Conclusion Accordingly, the School is ordered to provide the requestor with responses to the requests, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such responses must be provided to this office. It is preferable to send an electronic copy of the responses to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden News Network Commonwealth Transparency