Megan Hamilton-McKeon v. Saint Francis Xavier School (SPR 20240354)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 16, 2024 SPR24/0354 Peter Powers Executive Director of Human Resources and Administration Diocese of Fall River 450 Highland Avenue Fall River, MA 02720 Dear Mr. Powers: I have received the petition of Megan Hamilton-McKeon appealing the response of the Saint Francis Xavier School in Acushnet (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 15, 2024, Ms. Hamilton-McKeon requested “access [to her] Saint Francis Xavier emails.” A representative of the Diocese of Fall River responded for the School on January 29, 2024, suggesting modifications to the scope of her request. Unsatisfied with the School’s response, Ms. Hamilton-McKeon petitioned this office, and this case was opened as a result. Previously, on January 9, 2024, Ms. Hamilton-McKeon requested “the contents of her personnel file and emails at Saint Francis Xavier School, Acushnet.” In correspondence to Ms. Hamilton-McKeon on January 24, 2024, this office advised her that the custodian of the records she seeks is a private entity, and outside the scope of the Public Records Law. In further emails to this office on February 6, and February 7, 2024, Ms. Hamilton-McKeon contends “that Saint Francis Xavier School accepts money for Special Education which has an impact on public records requests according to 603 CMR 18.05.” As explained in greater detail below, this office holds no authority to compel the School to release records 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 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

Peter Powers SPR24/0354 Page 2 February 16, 2024 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. The School’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 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. In this case, the School’s website provides the following information concerning its origins: Since 1922, Saint Francis Xavier School has been operated by Saint Francis Xavier Parish under the direction of the Sacred Heart Fathers. This parish school was started by dedicated Dominican sisters in residence. The school began with classrooms in the lower church and with the first and second grade in a portable building located behind the church. In 1965, the new school building was opened at 223 Main Street.

Peter Powers SPR24/0354 Page 3 February 16, 2024 Further, the website of the Saint Francis Xavier Parish provides the following additional details on the origins and creation of the School: At the request of Father Andrew Lariviere, SS.CC, the Dominican sisters came to the parish and began teaching in 1922 in Quonset huts, which were adjacent to the church. With the completion of the upper structure of the church in 1925, grade seven and eight was added to the school. Father Alexis Wygers, pastor from 1953-1963 began raising $250,000 for the new St. Francis Xavier Elementary School. In 1965, a new modern school building was opened at a cost of about $550,000. In this case, based on the available information, it is clear that the creation of the School did not involve in any way the sort of “legislative underpinning,” such as a “statute, regulation, or executive order which addresses the establishment of” an entity, as required to be considered a public entity under this factor. See Board I at 589. As a result, an analysis of this factor strongly favors a determination that the School is not a public entity. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the School performs an “essentially governmental function.” See id. at 590. The School’s website, and the School’s 2018-2019 Parent/Student Handbook, describe the School as an elementary school, and indicate the School provides education for preschool through eighth grade. In Massachusetts, the provision of elementary and middle school 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, § 1 (requiring towns maintain schools “for the instruction of all children”). Nonetheless, elementary and middle school education, along with preschool education in particular, has not traditionally been considered an exclusive state function, and numerous private entities provide elementary and middle school education across the Commonwealth. Additionally, on its website, the School posts its Mission Statement as follows: We are inspired by St. Francis Xavier to grow in our relationship with Jesus Christ, to educate our minds and souls, and to use faith and reason to guide us as we live our lives. In this case, the religious, faith, and spiritual development described in its mission statement are the sort of functions performed by private and religious entities, and not “essentially governmental” functions. See Board I, at 590. Accordingly, an analysis of this factor also favors a determination that the School is not a public entity.

Peter Powers SPR24/0354 Page 4 February 16, 2024 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. Information available on the School’s website concerning Special Education Offerings appears to indicate that the School receives some amount of “IDEA [Individuals with Disabilities Education Act Federal Special Education Entitlement Grant] funding generated from students on IEPs.” Nonetheless, the School’s 2018-19 Parent/Student Handbook explains that “the primary source of financial support for St. Francis Xavier School is student tuition and is payable according to the options set forth in the Tuition Contract.” The Handbook further explains that “the school relies on fundraising money as well as tuition to meet budgeted expenses and curriculum improvements.” Documents available on the School’s website entitled “St. Francis Xavier School Financial Information 2024-2025” provide further details on the payment of student tuition, family fundraising fees, and indicate that financial aid for students attending the School is available in the form of subsidies from area parishes and the Diocese of Fall River. Further, although not referencing the School specifically, a September 2016 report from the Diocese of Fall River Task Force on Catholic Education indicates that within the Diocese of Fall River, “schools’ primary revenue driver is tuition (median 80% of revenue)” and that “subsidies and donations make up a median of 4% of revenue at elementary [schools].” In this case, where the primary source of funding for the School is from tuition, and the School also receives significant funding from parishes, the Diocese of Fall River, and other donations and fundraising, an analysis of this factor strongly favors a determination that the School is not a public entity. 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, agencies, or authorities over the entity. See Board I at 591; Board II at 1007. The School’s profile page on the Department of Elementary and Secondary Education website explains the following: Private schools, including parochial schools, operate independently of state or regional authority. However some aspects of these programs, such as those involving students with disabilities, are subject to regulation under state law.

Peter Powers SPR24/0354 Page 5 February 16, 2024 More specifically, the School’s website further explains the following: Saint Francis Xavier School operates within the Diocese of Fall River, under the Office of Catholic Schools (OCS). It is an active member of the National Catholic Education association and has full accreditation by the New England Association of Schools and Colleges, Inc. Additionally, the School’s 2018-19 Parent/Student Handbook indicates that it adheres to policies set by the Diocese of Fall River with regard to admission, expulsion, testing, and student conduct. Further, the School is listed at page 446 in the Official Catholic Directory of the United States for 2021 (OCD). Information on frequently asked questions issued in 2020 by the United States Conference of Catholic Bishops, Office of General Counsel explains that “The Official Catholic Directory, or OCD, is a book published annually which lists Catholic institutions and individuals in the United States.” The OCD is used annually by the Internal Revenue Service (IRS) to determine the tax exempt status of subordinate organizations of the United States Conference of Catholic Bishops. In its November 2, 2023 annual determination letter on group tax exemption, the IRS notes that the OCD “includes the names and addresses of the agencies and instrumentalities and the educational, charitable, and religious institutions operated by the Roman Catholic Church in the United States, its territories, and possessions that are subordinate organizations under [the United States Conference of Catholic Bishops] group tax exemption.” The OCD lists the School as an educational institution operated by the Roman Catholic Church. Where control and supervision of the School are in the hands of Catholic religious organizations, and the School operates independently of state authority, the final two factors strongly favor a determination that the School is not 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 lack of a legislative underpinning, the funding by student tuition along with religious and other private sources, and the control and supervision exercised by religious organizations indicate that the School is not a public entity. The provision of elementary and middle school education, and the receipt of some public funding for special education are not sufficient to render the School a public entity for the purposes of the Public Records Law. Therefore, the analysis of these factors favors a finding that the School is not a public entity, and therefore not subject to the Public Records Law. Conclusion Upon a review of each factor of the five-point public entity test, I find that the School is not a public entity, and thus not obligated to disclose records in response to requests made to the School under the Public Records Law. See G. L. c. 66, § 10. Therefore, this office holds no

Peter Powers SPR24/0354 Page 6 February 16, 2024 authority to compel the School to release any responsive records. Accordingly, I will now consider this administrative appeal closed. If Ms. Hamilton-McKeon is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon