Craig P. Shibley v. Massachusetts Interscholastic Athletic Association, Inc. (SPR 20222133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2022 SPR22/2133 Dr. Robert Baldwin Executive Director Massachusetts Interscholastic Athletic Association 33 Forge Parkway Franklin, MA 02038 Dear Dr. Baldwin: I have received the petition of Craig Shibley appealing the response of the Massachusetts Interscholastic Athletic Association (Association/MIAA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2022, Mr. Shibley requested seven categories of records from the Association. Having received no response, Mr. Shibley appealed to this office, and this case was opened as a result. In an email to Mr. Shibley and this office on September 13, 2022, the Association claims that it “is not subject to a Public Records Request.” 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). 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. 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

Dr. Robert Baldwin SPR22/2133 Page 2 September 26, 2022 The Association’s Status as a Public Entity 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. Ret. 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. Ret. 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. In its June 2022 “Report of the House Post Audit Bureau on The Massachusetts Interscholastic Athletic Association” (Report), the House Post Audit Bureau states the following concerning the “organizational history” of the Association: As an organization, the Massachusetts Interscholastic Athletic Association is an outgrowth of the Massachusetts Principals’ Association. The Principals’ Association split its organization into two parts in 1978, forming, first, the Massachusetts Interscholastic Athletic Association (MIAA) concentrating on secondary school athletics; and the other branch of the split became the Massachusetts Secondary School Administrators Association (MSSAA) concentrating on all non-athletic secondary school issues. The Report goes on to state the following: By statute, the MIAA is an agent of the school committees of the Commonwealth of Massachusetts (MGL c. 71, s. 47): Section 47. The committee may supervise and control all athletic and other organizations composed of public-school pupils and bearing the school

Dr. Robert Baldwin SPR22/2133 Page 3 September 26, 2022 name or organized in connection therewith. It may directly or through an authorized representative determine under what conditions the same may compete with similar organizations in other schools. Based on a review of the available information, it is unclear whether the creation of the Association constitutes the direct “legislative underpinning” discussed in Board I. See Board I at 589–90. As a result, an analysis of this factor does not clearly sway the determination as to whether the Association 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. In Hansberry v. Massachusetts Interscholastic Athletic Association, Inc., the Superior Court considered whether the Association is subject to the Open Meeting Law, and held that the “MIAA qualifies as a governmental body and its meetings should be subject to the Open Meeting Law.” Hansberry v. Massachusetts Interscholastic Athletic Association, Inc. (1998 WL 1181911), Superior Court No. 956807B, at 5 (October 21, 1998). The Court went on to explain the following: Since the public school committees have collectively delegated their ability to control athletic programs to the MIAA, and the MIAA has agreed to act as their agent by performing this important public function, it adopts the attributes of its principals and is subject to the same requirements as other governmental bodies. The MIAA is a common agent of all its member schools, 77% of which are public, and it is thus a “governing body” in so far as it is an agent of the public schools. Hansberry, at 4. Where the Superior Court has described the Association as “performing this important public function,” an analysis of this second factor tends to weigh in favor of the Association being 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. In its Report, the House Post Audit Bureau notes “that there are three primary forms of

Dr. Robert Baldwin SPR22/2133 Page 4 September 26, 2022 revenue available to the Massachusetts Interscholastic Athletic Association (MIAA): ticket sales, member dues, and corporate sponsorships.” The Report goes on to note that “the Association’s (MIAA) revenue comes primarily from the conduct of sports tournaments, educational athletic programs, and member dues.” The Report further explains the following: The largest revenue component for the organization, as noted by the previous executive director, comes from the tournaments. Between FY2016 and FY2020, revenue from athletic events made up between 64 percent and 51 percent of the MIAA’s total revenue reported on the IRS form 990s. That percentage decreased between FY2016 and FY2020, dropping from 62% in FY2016 to 51% in FY2020 (with an increase to 64% in FY2017). The Report also indicates that, currently, the Association receives less than 25 percent of its funding “from member schools, and recommends that the Association “should pursue the idea of receiving at least 25 percent of its funding from member schools.” As the Association receives and expends funding from both public and private sources, an analysis of this factor does not clearly sway the determination as to whether the Association is a public entity. Involvement of Private Interests; Control and Supervision by Government Officials The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials, agencies, or authorities over the entity. See Board I at 591; Board II at 1007. In its June 2022 report, the House Post Audit Bureau states the following concerning the Association’s board of directors: The MIAA board of directors has representative membership of school superintendents, school committee members, high school athletic directors, high school principals, and one assistant high school principal. The MSAA board of directors consists of high school principals, headmasters, a director of career & technical education, a retired principal, an assistant principal, and a pupil services administrator. These educational administrators are high school, vocational technical school, middle school, and elementary administrators. There is one principal of an Early Childhood Center. In its “Rules and Regulations Governing Athletics: A Handbook for Principals and Athletic Directors” (Handbook), the Association states the following: Governance and administration of MIAA is shared among members of the Massachusetts Association of School Committees, Massachusetts Association of School Superintendents, high school administrators, athletic directors, coaches, game officials, and licensed physicians; all of whom serve without compensation

Dr. Robert Baldwin SPR22/2133 Page 5 September 26, 2022 on thirty-five MIAA standing committees. Of the members of the Board of Directors listed on the Association’s website, both the President and Vice President are public school officials. Of the remaining 21 board members listed, 19 appear to be public school officials, and only 2 appear to be private school officials. Where the “control and supervision” of the Association is primarily in the hands of public school officials, with only limited participation by private school officials, an analysis of this final factor tends to favor a determination that the Association 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, where the Association performs an important public function, and its control and supervision is primarily in the hands of government officials and school committees, these factors indicate that the Association is a public entity. Subsequently, I find that the Association is a public entity subject to the Public Records Law. Conclusion Accordingly, the Association is ordered to provide Mr. Shibley with a response to his 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 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Craig Shibley