Lukey, Esq., Joan v. Massachusetts Gaming Commission (SPR 20140205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords August 4, 2014 SPR14/205 Ms. Joan A. Lukey, Esq. Ropes and Gray, LLP Prudential Tower 800 Boylston Street Boston, MA 02199-3600 Dear Attorney Lukey: I have received your petition appealing the response by the Massachusetts Gaming Commission (Commission) to your February 12, 2014 request for public records. G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, you requested the opportunity to examine twelve categories of records related to what you called the Caesar Entities. Timeliness ofr esponse/right of access Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. In a letter dated February 21, 2014, nine days after your request, Commission General Counsel Catherine Blue acknowledged receipt of your request, assuming that the records may be related to Caesars Massachusetts Management Company LLC et al v. Stephen P. Crosby and Karen Wells, No. 1:13-cv-13144-NMG (D. Mass.). General Counsel Blue further indicated that a review of the responsive records would commence and a fee estimate would follow. In a February 25, 2014 letter to General Counsel Blue you questioned the reference to the ongoing litigation in her February 21st letter. For this reason it is important to note that the personal status of any client you represent in the matter referenced above does not afford any greater or lesser right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Joan A. Lukey, Esq. SPR14/205 Page Two August 4, 2014 A review of the file indicates communication between you and the Commission continued through the end of February and up to March 24, 2014, the date you requested an appeal with my office. The Commission provided a fee estimate to you in a letter dated April 8, 2014. The Commission's first response was dated nine days after your request, within the ten day requirement for a response to a public records request. The ten day requirement in the Public Records Law relates to a response to a request by a records custodian, not a requirement that all responsive records be provided within ten days. Accordingly, whereas the ongoing responses by General Blue to your correspondence are consistent with the requirements of the Public Records Law, I find that the Commission has met its obligation oftimeliness in its response to your request. Waiver of exemptions In your March 24, 2014 appeal letter you suggest that the Commission is unable to assert an exemption claim to redact or withhold portions of the responsive records, as the Commission is "now time-barred from doing so." There is no provision in the Public Records Law that requires a custodian to claim an exemption within a certain time frame or risk waiving a claim. On the contrary, records previously disclosed may be redacted or withheld should an exemption claim be properly made by a records custodian. See Bougas, 371 Mass. at 63. Further, a custodian would be unable to determine whether any materials were exempt until a search and segregation of the responsive records had commenced. 950 C.M.R. 32.06. A review of the correspondence related to this request reveals that the Commission has commenced its review and has begun providing responsive records. General Counsel Blue indicated in her correspondence that each group of provided records will be accompanied by a cover letter to detail any exemptions claimed. I find that the Commission has not waived its right under the Public Records Law to assert exemptions in withholding or redacting records. Conclusion Accordingly, whereas the Commission continues to provide responsive records with an explanation for any redacted or withheld records in a manner consistent w'th the Public Records Law, I will consider this administrative appeal closed. Supervisor of Records cc: Ms. Catherine E. Blue, Esq.