Framingham Unfiltered v. Downtown Framingham Inc (SPR 20243385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2025 SPR24/3385 Adam Blumer Secretary/Clerk Downtown Framingham, Inc. 12 Irving Street, Suite 205 Framingham, MA 01702 Dear Mr. Blumer: I have received the petition of Framingham Unfiltered (requestor) appealing the response of Downtown Framingham, Inc. (Corporation/DFI) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 27, 2024, the requestor sought: [1] All emails sent by [an identified individual] to any or all of the executive board members or directors, acting, present or past, between the dates of 10/24/2024 [and present][;] [2] Meeting minutes for all board member meetings between 6/1/2024 and Present[;] [3] Any resignation letter written by [an identified individual] between 10/20/2024 and present. The Corporation provided a response on December 18, 2024. Unsatisfied with the Corporation’s response, the requestor petitioned this office and this appeal, SPR24/3385, 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

Adam Blumer SPR24/3385 Page 2 January 3, 2025 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 Corporation’s Status as a Public Entity In its December 18, 2024 response, the Corporation stated “… we did some research to see if requests like this applied to non-profits like ours, even ones listed as public entities. Based on what we learned, is not clear to us that the law does apply to our situation.” 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. 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 Corporation is a private nonprofit corporation organized under the laws of the Commonwealth of Massachusetts. Where the Corporation is a private nonprofit corporation, it lacks the sort of direct “legislative underpinning” discussed in Board I. See id. at 589–90. As a result, analysis of this factor strongly favors a determination that the Corporation is not a public entity.

Adam Blumer SPR24/3385 Page 3 January 3, 2025 Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the entity performs an “essentially governmental function.” Id. at 590. In its Articles of Organization, the Corporation states its purpose as follows: The purposes of the Corporation are to provide and promote civic pride in the Downtown Framingham Area, to educate the public about the resources available to it in the Downtown Framingham Area, to cooperate and assist municipal authorities in the redevelopment and revitalization of Downtown Framingham, to maintain, improve and preserve the character of Downtown Framingham, to encourage, simulate and promote the economic development of the Downtown Framingham Area, to promote the Downtown Framingham Area as a commercial, economic and residential area where people can live, shop and invest … On its website, the Corporation states its mission as follows: The mission of Downtown Framingham, Inc. (DFI) is to enhance the economic and cultural vitality of Downtown Framingham by following the tenets of the Main Streets America Model (economic vitality, promotion, design, and organization). Aligned with the Economic Development Department and Planning Board of City government, DFI provides complete comprehensive advice for all interactions with city departments. In addition, DFI works collaboratively with organizations in and around the city to develop inclusive events that support community engagement. While some of the Corporation’s functions overlap with traditional government functions, such as supporting economic and cultural development, providing advice for interaction with city departments, and promoting community engagement, these are by no means exclusively state functions, and numerous private entities provide similar services across the Commonwealth. Accordingly, an analysis of this factor tends to favor a finding that the Corporation is not 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.” Id. 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.” Id. at 591. In an application to the City of Framingham seeking funding from the Community Development Block Grant (CDBG) program for the 2026 fiscal year, the Corporation states:

Adam Blumer SPR24/3385 Page 4 January 3, 2025 DFI is dependent on CDBG funds to cover the majority of its payroll, specifically the salary of our community strategist and a part-time employee assisting with specific tasks. While we fundraise and seek grants to offset operational expenses, any loss of CDBG funding will result in a major setback to DFI’s operation, specifically in terms of our ability to hire/retain our existing staff. While our long term vision is that businesses may provide more funding to DFI when they are able, right now, CDBG funds are a key piece to support DFI. Where the Corporation relies extensively on public funds to retain its staff and support its operations, analysis of this factor tends to favor a finding that the Corporation is 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. Board I, at 591; Board II, at 1007. On its website, the Corporation lists the twelve members of its board of directors. Five of the Corporation’s directors are currently employed by public bodies: one by the Framingham Charter Commission, two by the Framingham City Council, and two by public educational institutions in the Framingham area. However, all of the directors hold their positions in their capacity as private citizens, not as government employees. Further, seven of the twelve directors appear to hold no government employment whatsoever. Where oversight and supervision of the Corporation appears to be primarily the responsibility of private citizens, an analysis of these final factors tends to favor a finding that the Corporation 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 Corporation’s lack of a legislative underpinning, the absence of an “essentially governmental function,” and the extensive involvement of private interests tend to indicate that the Corporation is not a public entity. The Corporation’s receipt and expenditure of public funding is not sufficient to render the Corporation a public entity in this case. Therefore, the analysis of these factors favors a finding that the Corporation 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 Corporation is not a public entity, and thus not obligated to disclose records in response to requests made directly to the Corporation under the Public Records Law. Therefore, this office holds no authority to compel the Corporation to release any responsive records. Accordingly, I will now consider this administrative appeal closed.

Adam Blumer SPR24/3385 Page 5 January 3, 2025 If the requestor 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: Framingham Unfiltered