Jeffrey J. Pyle, Esq. v. Massachusetts Gaming Commission (SPR 20220397)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2022 SPR22/0397 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 Jeffrey J. Pyle, Esq., of Prince Lobel Tye LLP, on behalf of Jennifer Williams-Alvarez, 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 October 5, 2021, Jennifer Williams-Alvarez, requested: [1] Documents, communications and/or disclosures pertaining to an internal investigation into Wynn Resorts CEO Matthew or Matt Maddox, from January 1, 2020, to present. This includes communications that disclose the existence of an investigation, any materials that describe the investigation and/or complaint(s), and any disclosures about the outcome of an investigation; and [2] Any records and/or communications between the MGC, the IEB [the Investigations and Enforcement Bureau] and/or Wynn Resorts about whether this investigation would preclude a finding that Mr. Maddox possesses the ‘requisite integrity, honesty and good character that are statutorily mandated by M.G.L. c.23K §12(a)(1)’ or would otherwise impact his suitability. Previous appeals This request was the subject of previous appeals. See SPR21/2868 Determination of the Supervisor of Records (November 5, 2021); SPR22/0063 Determination of the Supervisor of Records (January 24, 2022); and SPR22/0162 Determination of the Supervisor of Records (February 8, 2022). SPR22/0162 was closed after this office was notified that the Commission would provide a supplemental response. The Commission provided a response on February 14, 2022. Unsatisfied with the Commission’s response, Attorney Pyle petitioned this office and this appeal, SPR22/0397, 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. SPR22/0397 Page 2 March 3, 2022 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 agency or municipality 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 February 14th response In its February 14, 2022 response, the Commission referenced its December 28, 2021 response that identified the following records in its possession: [1] Printouts of emails received from the Wynn Resorts, Limited (“Wynn Resorts”) complaint reporting system and associated responses all dated between July 27, 2020, and August 10, 2020 (6 pages) (hereinafter, ‘the subject emails’) [2] Personal notes of IEB Director . . . [3] Personal notes of Detective Captain . . . [4] Notes of Executive Director . . . [5] Wynn Resorts, Limited Compliance Committee Minutes dated August 4, 2020 (1 page) [6] Wynn Resorts, Limited Board of Directors Meeting Minutes dated October 6, 2020 (2 pages) [7] Wynn Resorts, Limited Compliance Committee Minutes dated October 7, 2020 (2 pages) [8] Wynn Resorts, Limited Compliance Committee Minutes dated October 28, 2020 (2 pages) [9] Information in the Compliance Binder submitted to the Commission on February 25, 2021 (1 page)[.] The Commission provided certain records in redacted form pursuant to Exemptions (c) and (f) of the Public Records Law. The Commission also withheld certain records under

Carrie Torrisi, Esq. SPR22/0397 Page 3 March 3, 2022 Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Withheld records Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Commission indicates that G. L. c. 23K, § 4 grants the following powers and duties to the Commission: (9) [To] assure that licenses shall not be issued to, or held by, and that there shall be no material involvement directly or indirectly with, a gaming operation or the ownership thereof, by unqualified, disqualified or unsuitable persons or by persons whose operations are conducted in a manner not conforming with [Chapter 23K]; (16) [To] monitor the conduct of licensees and other persons having a material involvement, directly or indirectly, with a licensee for the purpose of ensuring that licenses are not issued to or held by and that there is no direct or indirect material involvement with a licensee, by an unqualified or unsuitable person or by a person whose operations are conducted in an unsuitable manner or in unsuitable or prohibited places as provided in [Chapter 23K].

Carrie Torrisi, Esq. SPR22/0397 Page 4 March 3, 2022 G. L. c. 23K, § 4(9), (16). The Commission posits that “[i]n order to carry out its essential functions, to ensure compliance with Chapter 23K, and to adhere to the principles and duties outlined in Chapter 23K, the Commission is continuously assessing the suitability of the gaming licensees and their qualifiers through ongoing investigations. As such, the Commission promulgated 205 CMR 139.02, which reads:” All documents submitted by a gaming licensee or obtained by the [C]ommission in accordance with 205 CMR 139.00 shall be deemed to have been submitted pursuant to a gaming related investigation to ensure compliance with M.G.L. c. 23K and 205 CMR, adherence to the principles articulated in M.G.L. c. 23K, § 1, and/or to ensure the ongoing suitability of gaming licensees in Massachusetts. Accordingly, pursuant to M.G.L. c. 23K, § 21(a)(7) any information or reports, or parts thereof, that are required to be filed or otherwise submitted to or obtained by the [C]ommission, the IEB, or their respective agents, in accordance with 205 CMR 139.00 that contain material or information that the gaming licensee considers a trade secret or believes would be detrimental to the gaming licensee if it were made public may be identified as confidential by the gaming licensee. Pursuant to M.G.L. c. 23K or 205 CMR 139.00 the gaming licensee may request that the [C]ommission enter into a written nondisclosure agreement under the terms of which the [C]omission agrees not to release the specified material or information publicly, in response to a request for public records or otherwise, and will assert the statutory exemption, M.G.L. c. 4, §7(26)(a), and/or any other applicable exemptions, and withhold the applicable materials in response to any request for such record or information. The agreement may provide for coverage for specific materials or information, or categories of materials or information, which will be, or are likely to be, submitted to or obtained by the [C]ommission on more than one occasion. 205 C.M.R. 139.02. The Commission explains that pursuant to the above, it withheld from disclosure the Board of Director meeting minutes, Compliance and Audit Committee meeting minutes, and a Compliance Binder. The Commission indicates that these records were part of 31 categories of records listed in the nondisclosure agreement entered into between the Commission and Wynn MA, LLC on December 20, 2018. The Commission argues that “[g]iven that the Board of Director meeting minutes, Compliance Committee meeting minutes, and Compliance Binder fall squarely within the terms of the nondisclosure agreement, the nondisclosure agreement is executed between the Commission and Wynn MA, LLC by authority granted in G.L. c. 23K, § 21(a)(7), and the nondisclosure agreement applies to all documents within its scope submitted to the Commission as part of the Commission’s ongoing duty to investigate and assess the suitability of gaming

Carrie Torrisi, Esq. SPR22/0397 Page 5 March 3, 2022 licensees and their qualifiers pursuant to G.L. c. 23K and 205 CMR 139.04, the Commission appropriately withheld these documents pursuant to the statutory exemption to the Public Records Law, G.L. c. 4, § 7(26)(a).” In Attorney Pyle’s petition, he states the following: [T]he [Commission] effectively concedes in its February 14 letter that the records at issue were not specifically “requested” by the [Commission] or the Attorney General’s Office “during an investigation.” Therefore, they do not fall within the narrow exemption contained in G.L. c. 23K, § 21(a)(7) for records of this nature. . . . The regulation is of no more relevance than the NDA, because the statutory exemption only applies to records “specifically or by necessary implication exempted from disclosure by statute,” not by regulation. G.L. c. 4, § 7, cl. 26(a). If the cited regulation were read to expand the statutory exemption beyond documents that were specifically “requested . . . during an investigation,” it would be invalid and ultra vires, in excess of the MGC’s statutory authority to enact. G. L. c. 23K, § 21(a)(7) states in relevant part: (a) The commission shall prescribe the form of the gaming license, which shall include, but not be limited to, the following license conditions for each licensee. The licensee shall: (7) cooperate with the commission and the attorney general in all gaming-related investigations. Each gaming licensee shall make readily available all documents, materials, equipment, personnel and any other items requested during an investigation; provided, however, that material that the gaming licensee considers a trade secret or detrimental to the gaming licensee if it were made public may, with the commission’s approval, be protected from public disclosure and the gaming licensee may require nondisclosure agreements with the commission before disclosing such material; G. L. c. 23K, § 21(a)(7). The above cited regulation states that “[a]ll documents submitted by a gaming licensee or obtained by the [C]ommission in accordance with 205 CMR 139.00 shall be deemed to have been submitted pursuant to a gaming related investigation to ensure compliance with M.G.L. c. 23K . . .” The regulation also permits the Commission to enter into a nondisclosure agreement with the licensee in order to keep certain records confidential. Where the Commission deemed the requested records to have been submitted pursuant to a gaming related investigation and entered into a nondisclosure agreement to prevent the disclosure of certain records, including the three records stated above, the Commission has met its burden to withhold those records from disclosure.

Carrie Torrisi, Esq. SPR22/0397 Page 6 March 3, 2022 Redacted records The Commission also redacted certain records under Exemptions (c) and (f) of the Public Records Law. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Commission explains, “[t]he redacted information . . . relates to certain alleged conduct that is of a highly sensitive nature as well as information that, if released, would be damaging to individual reputation and therefore meets all three prongs of the balancing test. There is no additional information that can be provided about the substance of the redacted

Carrie Torrisi, Esq. SPR22/0397 Page 7 March 3, 2022 information while also maintaining the individual privacy interests protected by the privacy exemption. . . .” The Commission cites PETA. Exemption (f) 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. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 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. Under Exemption (f), the Commission states that it redacted certain information regarding an identified individual’s notes because, “[t]he redacted information reveals investigative techniques used by then IEB Director . . . in gathering information and evidence for IEB investigations, the disclosure of which would prejudice future IEB investigative activities.” In camera inspection In order to facilitate a determination as to the applicability of the Commission’s claims under Exemptions (c) and (f) to redact portions of the responsive records, the Commission must provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198,

Carrie Torrisi, Esq. SPR22/0397 Page 8 March 3, 2022 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Commission is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeffrey Pyle, Esq.