Inga S. Bernstein, Esq. v. Massachusetts Gaming Commission (SPR 20190784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2019 SPR19/784 Shara N. Bedard Records Access Officer Massachusetts Gaming Commission 101 Federal Street, lih Floor Boston, MA 02110 Dear Ms. Bedard: I have received the petition of Inga Bernstein, Esq. of Zalkind Duncan & Bernstein LLP appealing the response of the Massachusetts Gaming Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 8, 2019, Attorney Bernstein requested" ... public records associated with the [Commission's] Adjudicatory Hearing conducted on April 2-4, 2019, in the Matter of Wynn MA LLC: 1. All exhibits entered into the record at the above-referencing hearing; and 2. Transcripts of the referenced proceedings." The Commission provided a response on April 9, 2019 which included responsive records in redacted form. The Commission claimed that the records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). The Commission also withheld certain records from disclosure pursuant to Exemptions (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(d), (f). Unsatisfied with the Commission's response, Attorney Bernstein petitioned this office and this appeal, SPRl 9/784, was opened as a result. While this appeal was pending, the Commission provided a supplemental response on April 18, 2019. It appears Attorney Bernstein is only appealing the exhibits that were withheld under Exemptions (d) and (f) of the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials cir data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Shara N. Bedard SPR19/784 Page 2 April 30, 2019 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission's April 9th response In its April 9, 2019 response, the Commission indicated that it enclosed " ... a copy of the Investigative Report Regarding Ongoing Suitability of Wynn MA, LLC exhibit. ... Pursuant to the Privacy Exemption to the Massachusetts Public Records Law, M.G.L. c. 4, § 7 (26)(c), personal information has been redacted. Additionally, under the Statutory Exemption M.G.L. c. 4, § 7 (26)(a), information subject to 42 U.S.C. 2000 has been redacted." The Commission stated that it" ... is still in the deliberative process in this matter, all other exhibits entered into the record are being withheld under the Deliberative Process Exemption M.G.L. c. 4, § 7 (26)(d), and the Investigatory Exemption M.G.L. c. 4, § 7 (26)(f)." The Commission further indicated that it does not possess transcripts of the proceedings because it has not received them. The Commission's April 1 sth supplemental response In its April 18, 2019 supplemental response, the Commission indicated that Attorney Bernstein is requesting" ... records from an adjudicatory hearing that was conducted by the Commission on April 2-4, 2019 which has not yet concluded." The Commission explained that "[u]pon adjourning on April 4th, the hearing was held open and the Commission is presently in the midst of its deliberations. In deliberating, it is relying on the record to make its determination prior to issuing a written decision, which is expected within the next two weeks." The Commission stated that "[w]hile [it] acknowledges that the requested documents constitute public records, release of these records prior to the conclusion of the deliberations could taint the deliberative process." The Commission indicated that at the conclusion of its deliberations, it would provide an estimate to Attorney Bernstein with the cost associated with the production of the responsive records, subject to redactions. Exemption (d ) Exemption (d ) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or

Shara N. Bedard SPR19/784 Page 3 April 30, 2019 may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Shara N. Bedard SPR19/784 Page4 April 30, 2019 The Commission's responses did not contain the specificity required in a denial of access to public records. With respect to Exemption ( d), I find the Commission has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption ( d). In particular, the Commission has not demonstrated that the responsive records were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra-agency" under FOIA exemption 5). Further, while the Commission indicates that it is in the midst of its deliberations, it is unclear how the exhibits constitute recommendations on legal and policy matters and are not purely factual information. The Commission is reminded that "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Also, although the Commission asserts that releasing the records "prior to the conclusion of the deliberations could taint the deliberative process[,]" the Commission did not explain how disclosure would taint its ongoing deliberations. It is additionally uncertain how disclosure would taint the Commission's deliberative process, especially, given the fact that "the records sought are exhibits offered into evidence at a publicly conducted Adjudicatory Hearing," as claimed by Attorney Bernstein. The Commission must . clarify these issues. With respect to Exemption (f), while the Commission claimed in its April 9th response that the investigatory exemption applies to these records, the Commission did not explain how the requested records are part of the investigation. Further, the Commission did not demonstrate how disclosure of the responsive records or any segregable portions thereof "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a ). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Commission did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Commission is ordered to review the exhibits, redact where necessary, and provide Attorney Bernstein with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. The Commission may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Shara N. Bedard SPR19/784 Page 5 April 30, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Inga Bernstein, Esq.