Charles E. DuPont, Jr. v. Massachusetts Gaming Commission (SPR 20191407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2019 SPR19/1407 Carrie Torrisi, Esq. Associate General Counsel Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, Massachusetts 02110 Dear Attorney Torrisi: I have received the petition of Charles DuPont appealing the response of the Massachusetts Gaming Commission (Commission/MGC) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. DuPont initially requested "copies of all unprivileged information, documents and reports about, and submissions from, John J. Hagenbuch related to the application for a gaming license in the state of Massachusetts submitted by Wynn MA LLC (WynnCo) ...." The Commissio11 provided responsive documents on various dates, including May 16, 2019. Unsatisfied with the response, Mr. DuPont appealed to this office. 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 or 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). 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, § lO(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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma:us/pre • pre@sec.state.ma.us

Carrie Torrisi, Esq. SPRl 9/1407 Page 2 July 26, 2019 Appeal On May 2, 2019 Mr. DuPoint indicated that he specifically sought the '"sworn interview' [of John Hagenbuch] conducted in the first Wynn Resorts suitability investigation." In its May 16th response the Commission provided a redacted copy of a transcript of the above interview and asserted "[p] ursuant to the Privacy Exemption to the Massachusetts Public Records Law, G.L. c. 4, § 7 (26)(c), personal information has been redacted. Additionally, pursuant to the Statutory Exemption to the Massachusetts Public Records Law, G.L. c. 4, § 7 (26)(a) and G.L. c. 23K, § 9, trade secrets and other competitively-sensitive or proprietary information has been redacted." In his appeal petition Mr. DuPont objects to these redactions and argues they are unjustified. He also asserts "[t]o the extent there are other documents related to Hagenbuch in the possession of the Commission, they have not been produced and the Commission has not issued me a statement to the effect that there are no other requested documents in its possession. Accordingly, I hereby appeal the MGC's failure to clarify if any requested documents are in its possession, and request either their production or a statement to the effect that a search for them has been conducted and no such documents were found." Subsequent to the opening of this appeal, the Commission provided a supplemental response on July 25, 2019. In this response you indicate "[t]he Commission redacted the following information in the transcript provided to Mr. DuPont: (1) Personal information pursuant to G.L. c. 4, § 7(26)(c); (2) Trade secrets and competitively-sensitive or other proprietary information pursuant to G.L. c. 4, § 7(26)(a) and G.L. c. 23K, § 9(b); (3) Criminal offender record information pursuant to G.L. c. 4, § 7(26)(a) and G.L. c. 6, § 167, et seq.; and ( 4) Information related to tax returns and tax .audits pursuant to G.L. c. 4, § 7(26)(a) and G. L. C. 62C, § 21." You further assert that "Mr. Hagenbuch' s interview transcript contains extensive information related to his personal business matters as well as his personal family matters, and we believe that such information falls squarely within the exemptions outlined above. The Gaming Act specifically provides a statutory exemption to the Public Records Law for information that could put an applicant at a competitive disadvantage, and the Commission believes that it has redacted the interview transcript in accordance with that exemption to prohibit the disclosure of potentially competitively-sensitive or proprietary information." With regard to the existence of additional responsive records, you note that the Commission will provide Mr. DuPont 2 additional responsive documents and is in the process of reviewing them for any potentially exempt information. Whereas the Commission's July 25th supplemental response includes additional detail to explain the nature of the redactions within the transcript at issue and indicates that it will provide additional responsive records to Mr. Dupont, I will consider this appeal closed. Mr. DuPont may appeal the substantive nature of the Commission's July 25th response, as well as any future

Carrie Torrisi, Esq. SPR19/1407 Page 3 July 26, 2019 response regarding the additional records to be provided, within 90 days. See 950 C.M.R. 32.08(1). This office can provide Mr. DuPont a copy of the Commission's July 25111 response upon request in the event that he has yet to receive it. Sincerely, Rebecca S. Murray Supervisor of Records cc: Charles DuPont