Abad Cabassa v. Massachusetts Gaming Commission (SPR 20211107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2021 SPR21/1107 Carrie Torrisi, Esq. Associate General Counsel Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Torrisi: I have received the petition of Abad Cabassa appealing the response of the Massachusetts Gaming Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2021, following two similar requests made on January 18 and March 5, Mr. Cabassa requested the following: 1. [A] list of jockeys, in [the Commission’s] possession, for Fy 2013-2019, for active, retired and disabled jockeys. M.G.L. c 128A sec 5(h)(4). 2. Rules and eligibility requirements, in [the Commission’s] possession, for the HBPA as approved by the Commission, for The Race Horse Development Fund in accordance with, M.G.L. c 23k, section 60(c)(iii), 205 CMR 149-04 (4)(a)(3), Fy 2013-2019. 3. How much did the Commission determine, in [the Commission’s] possession, for Fy 2013-2020 to the jockeys from the Race Horse Development Fund, 205 CMR 149-04 (4)(a)(3). M.G.L. c 23k sec 60(c)(iii). 4. The rules and eligibility requirements, in [the Commission’s] possession from the Jockeys Guild that were approved by the Commission for Fy 2013-2019. M.G.L. c 128 sec 5(h)(4). 5. The rules and eligibility requirements proposed by the Jockey Guild . . . for approval, by the Commission for the Fy 2020, M.G.L. c 128 sec 5(h)(4). The Commission responded on March 18, 2021, and again on April 9, 2021, providing a number of responsive records and indicating that it did not possess others. Unsatisfied with the Commission’s response, Mr. Cabassa appealed, and this case was opened as a result. 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

Carrie Torrisi, Esq. SPR21/1107 Page 2 May 11, 2021 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, § 10A(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, § 10(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. Current Appeal In his appeal petition, Mr. Cabassa contends that the Commission “is withholding and failing to timely furnish requested records and portions of Records” and that the records he requests “are within the possession, custody and control of the . . . Massachusetts Gaming Commission.” The Commission’s March 18th and April 9th Responses In its March 18, 2021 response, the Commission provides hyperlinks to records responsive to item (3) of Mr. Cabassa’s request. The Commission also states that “[w]ith respect to items 1 and 5, [the Commission does] not have any documents responsive to [the] request,” but that it “anticipates receiving information responsive to item 5 and will review and provide to [Mr. Cabassa] at that time.” Further, “[w]ith respect to item 2, [the Commission is] still working on locating documents or information responsive to this portion of [the] request and will follow- up with [Mr. Cabassa] as soon as possible.” Finally, “[w]ith respect to item 4, the Commission does not approve the eligibility requirements. Updates to the Jockey Guild requirements were presented at the May 10, 2018 meeting.” The Commission provides a hyperlink to “access the meeting video, transcript and packet.” In its April 9, 2021 response, the Commission states: 1. With respect to [the] request for the “19 active jockeys,” the Commission does not have any documents responsive to this request. Although the $65,000 is paid from the Commission to the Jockeys Guild pursuant to G.L. 128A, § 5(h)(4), the Commission does not have any oversight authority over how the funds are expended nor is the Jockeys Guild required to report such. However, per [Mr. Cabassa’s] request, [the Commission] attached the list of licensed jockeys from 2012-present (with 2019 being the last year that jockeys were licensed). Pursuant to the privacy exemption to

Carrie Torrisi, Esq. SPR21/1107 Page 3 May 11, 2021 the Massachusetts Public Records Law, G.L. c. 4, s. 7(26)(c), home addresses, home telephone numbers, and cell phone numbers have been redacted. 2. With respect to [the] request for the “rules of eligibility requirements,” after a thorough search, [the Commission was] unable to locate any documents responsive to this request. Although G.L. c. 23K, § 60(c)(iii) states “the Commission shall determine how much shall be paid annually by the horsemen’s organization to the thoroughbred jockeys or standardbred drivers organization at the horse racing facility for health insurance, life insurance or other benefits to active and disabled thoroughbred jockeys or standardbred drivers under the rules and eligibility requirements of that organization” this is not a practice that has been done in the past. In an email to this office on May 11, 2021, the Commission confirmed that it has “fully responded to Mr. Cabassa’s requests and [has] no further documents to provide.” Records in Existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Commission has confirmed that it has provided all available records responsive to Mr. Cabassa’s request, and has explained why no further records exist. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Cabassa is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Abad Cabassa