Craig P. Shibley v. Massachusetts Interscholastic Athletic Association, Inc. (SPR 20222598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2598 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. Previous Appeals This request was the subject of a previous appeal. See SPR22/2133 Determination of the Supervisor of Records (September 26, 2022) and SPR22/2133 Determination of the Supervisor of Records (October 28, 2022). In my September 26th determination, I found that the Association is a public entity subject to the Public Records Law, and in my October 28th determination, I ordered the Association to provide a supplemental response to Mr. Shibley. Subsequently, the Association responded on November 14, 2022. Unsatisfied with the Association’s response, Mr. Shibley further appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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 SPR22/2598 Page 2 November 29, 2022 Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Association’s November 14th Response In its November 14, 2022 response, the Association reiterates its previous claim that it is not subject to the Public Records Law, and argues the following: There is absolutely no basis for considering the MIAA as an executive department, board, commission, bureau, division or authority of the Commonwealth or a political division thereof and its officers and employees are not within the legislatively defined categories of holders of public records. Moreover, it is not an ‘authority’ established by the General Court. Moreover, it is not a governmental entity or a political subdivision covered by 950 CMR Part 32.00. In its November 14th response, the Association also refers to a previous 2012 determination letter on the same issue. See SPR12/0181 Determination of the Supervisor of Records (November 16, 2012). Please note that the 2012 determination was issued prior to the House Post Audit Bureau’s June 2022 “Report of the House Post Audit Bureau on The Massachusetts Interscholastic Athletic Association,” discussed in my September 26, 2022 determination. The 2012 determination was also issued prior to the Supreme Judicial Court’s holding in Abner A. v. Massachusetts Interscholastic Athletic Ass’n, which the Association discusses in its November 14th response. See 490 Mass. 538 (2022). In Abner, the Supreme Judicial Court affirmed that “[w]hile it is a membership organization composed of both private and public members, the MIAA has been deemed a ‘State actor’ for legal purposes.” Abner, at 544; see also Mancuso v. Massachusetts Interscholastic Athletic Ass’n, 453 Mass. 116, 123 (2009); Att’y Gen. v. Massachusetts Interscholastic Athletic Ass’n, 378 Mass. 342, 349 (1979). The Court contrasts this view with that of certain other State courts, which “have viewed State athletic associations similar to the MIAA as fundamentally private, voluntary associations and, on that ground, have applied a principle of judicial noninterference in the internal affairs of voluntary associations.” Abner, at 544 n.4. In Abner, the Court goes on to refer to “the MIAA’s status as a quasi governmental agency.” Abner, at 546. Consequently, I decline to reverse my findings in the September 26th determination. As previously stated, I find that the Association is a public entity subject to the Public Records Law.

Dr. Robert Baldwin SPR22/2598 Page 3 November 29, 2022 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