Some partnerships not subject to Mass. Public Records Law

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By Colman Herman

The website of the Rose Kennedy Greenway proudly boasts, “15 acres of new public parkland.”  Note the word “public.”  So wouldn’t you think the Rose Kennedy Conservancy, which runs the Greenway, is subject to the Massachusetts public records law?  If you said yes, you’d be wrong, as citizen-activist Shirley Kressel found.

When the Greenway Conservancy refused to turn over documents to Kressel in 2008, she appealed to the supervisor of public records, Alan Cote, in the secretary of state’s office.  “I request your determination on the status of this organization as a public body,” Kressel wrote.  “It is chartered by a Memorandum of Agreement to carry out governmental tasks in managing public spaces; its members are all political appointees . . . ; [and] it is funded by public money . . . .”

In rebuttal, Nancy Brennan, the conservancy’s executive director, told Cote that “the Conservancy is a private, non-profit corporation created under Chapter 180 of the Massachusetts General Laws and is not subject to the Public Records Law applicable to public bodies.”

Court decisions in Massachusetts have established a five-factor test that may be used for determining whether an organization is a government entity for the purposes of the public records law:

1) the means by which the entity was created,

2) whether or not the entity performs an essentially governmental function,

3) whether or not the entity receives or expends public funds,

4) the involvement of private interests, and

5) the extent of control and supervision exercised by governmental officials, agencies or authorities.

Cote employed these five factors in assessing whether the Greenway Conservancy is subject to the public records law, noting that “These factors are cumulative and no one factor is dispositive” and that the “factors must be balanced in order to determine the status of the agency.”

After applying the five-factor test to the Greenway Conservancy, Cote agreed with Brennan, the conservancy’s executive director, ruling that “the Conservancy is not a public entity for the purposes of the Public Records Law.”  In fact, for every single of one of the five factors, Cote found the Greenway Conservancy is not a government entity subject to the public records law.

Brennan did “voluntarily” turn over nearly all of the records Kressel wanted, but held back a list of how much donors had given, which is a key piece of information Kressel was after, she said, to confirm whether or not the conservancy had complied with the terms imposed on it for matching donations.

It’s the same situation with regard to trying to access public records over at Post Office Square Park, formally called the Norman B. Leventhal Park.  It is situated in the heart of the Financial District on land deeded by the City of Boston to the Post Office Square Redevelopment Corporation, aka Friends of Post Office Square, for forty years.  The park’s website refers to the arrangement as a “public/private partnership.”

The park’s general manager, Pamela Messenger, told me that the Friends of Post Office Square is not subject to the public records law.  As far as I have been able to determine, there has been no testing of whether she is right, but I am virtually certain she is.  By the way, public assembly is not allowed at Post Office Square Park.  Nor is sleeping.  And even the sidewalks surrounding the park are controlled by The Friends. Boston park rangers patrol the park.

Joining the Greenway Conservancy and the Friends of Post Office Square is the Boston Common Frog Pond Foundation.  It is headed by restauranteur Tom Kershaw, who told me his foundation too is not subject to the public records law.  The website of the Frog Pond does carry this nice commercial for the man: “Thomas A. Kershaw, Chairman of the Foundation, is a Boston businessman who owns the Hampshire House, Cheers Beacon Hill, Cheers Faneuil Hall Marketplace, and 75 Chestnut, a romantic restaurant and bar on Beacon Hill.”  

Kershaw ultimately did turn over the foundation’s public tax return to me when I explained that IRS regulations required him to do so.  But he couldn’t resist saying, “This is getting to be a pain in the ass.”

Still another public/private entity is something called Boston Connects, Inc., whose website reports that it has a partnership with the City of Boston “to implement an array of community and economic development initiatives designed to improve communities in Boston that have experience[d] chronic divestment over the years.”  When another citizen-activist, Ned Flaherty, appealed BCI’s refusal to turn over the records he requested, Cote, using the five-factor test, ruled that BCI, which receives public funding, is also not subject to the public records law.

Although not a public/private partnership in the same sense, the venerated Swan Boats present a public records problem.  It is a little known fact that the Swan Boats is run by Swan Boats, Inc., a private company that has an agreement with the City of Boston under it which it pays the city a percentage of its revenues. But since Swan Boats, Inc, which actually owns the boats, is a private company, it is not subject to the public records law.

Swan Boats, Inc.’s most recent response to a request for proposals included an income statement that provides precious little information about its financial operations.  For 2008, all the filing reports is: revenue ($460,240), operating expenses ($456,474) and net income ($3,766).  On the same form, they provide comparable skimpy information for 2007, which miraculously reveals virtually the same net income ($3,878).   Could they be working backward to arrive at a low figure to minimize how much they must pay to the City of Boston?

The accounting firm for Swan Boats, Inc., Cohen & Associates, felt compelled to include the following telling note with the income statement: “Management has elected to omit the balance sheets, statements of cash flows and substantially all of the disclosure required by generally accepted accounting principles.”  So what’s a boy to do if he wants to look behind the curtain of the Swan Boats?

Some of the many other public private partnerships in Massachusetts include Emerson’s College’s arrangement with the City of Boston to use Rotch Field. Emmanuel College’s arrangement with the city to use Clemente Field, and The Friends of Teddy Ebersol’s arrangement with the state’s Department of Conservation and Recreation to use the baseball and soccer fields on the Charles River Esplanade.  All of these arrangements limit public access to public fields.  Yet the private groups are not subject to the public records law.

There may be many benefits that accrue to the people in public/private partnerships, but there must be accountably directly to the people.  To that end, there needs to be legislation that will make all private groups that use public space and/or get public funds such as described above subject to the public records law as it pertains to their public/private dealings with government entities.

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