MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
Kenneth W. Salinger, Justice of the Superior Court.
publisher of The Boston Globe seeks a declaration that the
Massachusetts public records law now applies to the
Retirement Board of the Massachusetts Bay Transportation
Authority Retirement Fund. The Globe also seeks an injunction
ordering the Retirement Board to produce minutes of meetings
concerning the Fund's $25 million investment in a hedge
fund that lost all its value and sought bankruptcy protection
amid allegations of fraud. The Board says it is not subject
to the public records law and refuses to give these records
to the Globe.
central issue is whether the Fund " receives public
funds" and thus is subject to the public records law as
amended in 2013. Both sides have moved for summary judgment.
The parties agreed to reserve any claims by the Board that
the relief sought would be unconstitutional. But the Board
argues that its constitutional claims help show that the
amended statute does not apply to it or the Fund.
Court will ALLOW the Globe's motion for summary judgment
and DENY the Retirement Board's cross motion. The
Retirement Board's preliminary assertions that the
Supreme Judicial Court has already resolved the central
question of statutory interpretation in the Board's
favor, and that in any case the Globe may not press its
claims because it failed to join other necessary parties, are
both incorrect. On the merits, the Court concludes that the
Board does indeed receive public funds from the MBTA, and
thus that the Board's records are now subject to
mandatory disclosure under the public records law unless they
fall within one of the statutory exemptions. The Board's
assertion that the 2013 statutory amendment only applies to
records created after its effective date is also incorrect.
Court will schedule a status conference to learn whether any
further constitutional issues, or any claim by the Board that
documents requested by the Globe are exempt from disclosure,
must be decided to resolve this case. If so, it will set a
schedule for addressing the remaining issues.
parties have stipulated to various facts for the purposes of
the pending motions for summary judgment. Those stipulations,
reasonable inferences that can be drawn from those facts, and
other relevant legal background can be summarized as follows.
Legal and Procedural Background
law, " [e]very person having custody of any public
record" must, " without unreasonable delay, "
allow the record " to be inspected and examined by any
person and provide " one copy thereof upon payment of a
reasonable fee." G.L.c. 66, § 10(a). Up until 2013,
the public records law applied only to state and local
government agencies, authorities, and political subdivisions
of the Commonwealth. That is because the Legislature had
defined " public records" to mean any documents or
data " 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,
" unless the materials or data fall within a specific
statutory exemption. G.L.c. 4, § 7, clause twenty-sixth.
An entity that falls within this definition are referred in
the public records law as a " custodian" of the
public records in its custody. G.L.c. 66, § 10(b) & (c).
By law there is a presumption that any record held by such a
custodian " is public, and the burden shall be upon the
custodian to prove with specificity the exemption which
applies." Id. § 10(c). The MBTA is subject
to the public records law because it is a " political
subdivision of the commonwealth." See G.L.c. 161A,
Supreme Judicial Court held in 1993 that the public records
law did not apply to the MBTA Retirement Board, because the
Board did not fall within any of the categories of public
entities described in the statutory definition of "
public records." See Globe Newspaper Co. v.
Massachusetts Transp. Auth. Ret. Bd., 416 Mass. 1007,
622 N.E.2d 265 (1993) (rescript) (" Board II
"). The SJC issued a short " rescript"
decision in that case, incorporating by reference the
reasoning of its prior ruling that the Board was not a "
State agency" within the meaning of, and thus its
employees were not subject to, the conflict of interest law.
See Massachusetts Bay Transp. Auth. Ret. Bd. v. State
Ethics Comm'n, 414 Mass. 582, 608 N.E.2d 1052 (1993)
(" Board I ").
July 2013, the Legislature amended the statutory definition
that determines the scope of the public records law, through
an outside section of the state's FY 2014 operating
budget. It left intact the language quoted above. But it
added language stating that " public records" shall
also mean any documents or data made or received by "
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 thereof as defined by section 1 of
chapter 32 of the general laws " (emphasis added).
See St. 2013, c. 38, § 4 (amending G.L.c. 4, § 7,
clause twenty-sixth). " Political subdivision" is
defined in G.L.c. 32, § 1, to include the MBTA. When the
Legislature broadened the scope of the public records law in
this way, it did not revise the statutory exemptions from the
obligation to produce public records. A year later, the
Legislature repealed this amendment through an outside
section of the FY 2015 general appropriations act. See St.
2014, c. 165, § 198. Governor Patrick vetoed that
section, however. As a result the 2013 amendment to the
statutory definition of " public records" remains
December 2013, reporter Beth Healy of the Globe asked the
Retirement Board to provide copies of meeting minutes
concerning an investment by the Fund in the Fletcher Fixed
Income Alpha Fund. In response, the Board told Healy that
" there is considerable doubt as to the applicability
and validity of the recent amendment to G.L.c. 4, § 7,
cl. 26." It sent Healy a copy of a prior letter to the
Boston Herald that explained the Board's legal position
in more detail. The Board has not provided any of the records
requested by Healy.
Globe then asked Supervisor of Public Records Shawn Williams,
at the Secretary of the Commonwealth's Public Records
Division, to order the Retirement Board to provide the
records requested by Ms. Healy. The Supervisor denied that
request. Mr. Williams concluded that the Supreme Judicial
Court had decided in Board I that the Retirement
Board does not receive or expend public funds, and that as a
result the broadened definition of " public
records" adopted in 2013 does not apply to the Board or
to the Fund.
Board represents that, because the Supervisor ruled that the
public records law does not apply to the Board or the Fund,
the Board has made no attempt to collect any of the meeting
minutes sought by the Globe or to determine whether any part
of those records may be exempt from disclosure.
Globe brought this action against the Retirement Board in
April 2014. It filed the action with the Supreme Judicial
Court for Suffolk County. Cf. G.L.c. 66, § 10(b) (an
action seeking public records may be filed with the SJC or in
the Superior Court). A single Justice of the SJC (Botsford,
J.) transferred the case to Suffolk Superior Court. Cf.
G.L.c. 211, § 4A (authorizing any SJC justice to
transfer to " any appropriate lower court any cause or
matter which might otherwise be disposed of by a single
justice"). The Globe filed an amended complaint in
August 2014. The amended complaint defines the scope of
relief now sought by the Globe. The parties filed their
cross-motions for summary judgment in December 2015.
Additional Factual Background
MBTA was created in 1964. It is a " political
subdivision of the commonwealth" and is charged with the
" duty to develop, finance and operate mass
transportation facilities and equipment in the public
interest." G.L.c. 161A, § § 2 & 5(a). The MBTA
was the successor to the Metropolitan Transit Authority
(" MTA"), which operated the public transportation
system in the Boston area from 1947 to 1964. The MTA was
created to take over that system from the Boston Elevated
Railway Company (" Boston Elevated"). Workers
employed by Boston Elevated were represented by a bargaining
unit known as the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America, Division 589.
Today this same bargaining unit is known as Local Union 589,
Amalgamated Transit Union, AFL-CIO, CLC.
of Local 589 who are or were employed by the Boston transit
system have long been the beneficiaries of private pensions
established by contract. Boston Elevated employees
participated in a non-contributory pension plan starting in
1920, and in a contributory retirement plan beginning July 1,
1941. The statute establishing the MTA provided that the
MTA's employees would not be subject to the general
public employee retirement law, and instead authorized the
MTA to continue to pay pensions and retirement allows
pursuant to the plans that had been created by Boston
Elevated. See St. 1947, c. 544, § 18. Shortly after it
came into existence, the MTA negotiated a contract with Local
589 establishing a new contributory retirement plan, which
replaced the prior plans established by Boston Elevated. This
new plan took effect January 1, 1948. The more recent statute
establishing the MBTA similarly provided that the MBTA's
employees would not be subject to the general public employee
retirement law, and instead required the MBTA to continue to
employment the pension plan established by the MTA. St. 1964,
c. 563, § § 19 & 22. The MBTA and Local 589
negotiated a new pension agreement in 1970. That contract has
been amended from time to time.
1948 to 1980, the assets of the Fund were held and managed
first by the Old Colony Trust Company and then by its
successor, the First National Bank of Boston. In 1980, with
the agreement of the MBTA and Local 589, the Retirement Board
became responsible for administering the retirement plan
established by contract between the MBTA and Local 589 and
for managing the Fund's assets that pay the plan's
costs of Local 589's retirement plan and of the
Retirement Board are paid by the Fund. The Board and the Fund
are private, non-public, legal entities. All assets of the
Fund are beneficially owned by its members, retired members,
and their beneficiaries. Neither the MBTA nor the
Commonwealth guaranties the Fund's pension obligations or
has any legal interest in the Fund or its assets.
Fund has three sources of revenue: payments or "
contributions" made by the MBTA, contributions made by
MBTA employees who are members of Local 589, and investment
returns that the Fund earns from its accumulated assets. The
MBTA's payments are the largest of these three revenue
streams. In 2013, for example, the MBTA paid the Fund $58.0
million, MBTA employees paid $21.0 million, and the Fund had
investment returns of $32.3 million. From 2009 to 2013 the
MBTA contributed a total of $252.9 million to the Fund,
employees' contributions totaled $93.4 million, and the
Fund's investment returns totaled $164.6 million.
amount of the contributions or payments made to the Fund are
set by contract after negotiation by the MBTA and Local 589.
The MBTA currently pays the Fund an amount equal to 15.1511%
of annual pre-tax compensation for Local 589 members who
participate in the pension plan, and the members pay an
additional 5.4989% of their annual pre-tax compensation. Each
month, the MBTA calculates each employee's contribution
to the Fund, which is deducted from the employee's gross
pay, as well as the MBTA's own contribution. The MBTA
then instructs its bank to transfer those amounts
electronically from the MBTA's account to the Fund's
bank account. The parties have stipulated that the MBTA's
contributions are irrevocable upon transfer to the Fund's
MBTA's pays these contributions from general revenues.
For FY 2015, the MBTA anticipated receiving almost $2.0
billion in operating revenues, mostly from tax revenues paid
to the MBTA by the Commonwealth of Massachusetts, fares
collected from riders, and assessments on cities and towns
served by the MBTA. Roughly 57 percent of the MBTA's
total revenues that year were expected to come from State
funding, in large part from a dedicated portion of the state
Retirement Board argues that the Court should not consider
the merits of the Globe's claims. It asserts that the SJC
determined in 1993 that the Retirement Board is not subject
to the public records law because it does not receive public
funds and that, since the Globe was a party to that prior
case, the Globe is barred from relitigating the issue under
the doctrine of issue preclusion or collateral estoppel. The
Board also asserts that the Globe failed to join necessary
parties whose interests may be affected by any declaratory
judgment entered in this case. Neither of these claims has