David Nucera v. Massachusetts Gaming Commission (SPR 20231472)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2023 SPR23/1472; SPR23/1498 Judith Young, Esq. Associate General Counsel Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Young: I have received the petitions of David Nucera appealing the responses of the Massachusetts Gaming Commission (Commission) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023 and May 13, 2023, Mr. Nucera requested the following: SPR23/1498 [1] All public records (between the dates of August 15th, 2020, thru May 12, 2023) including emails, email attachments, files, texts, and photographs sent or received by all employees of the Massachusetts Gaming Commission including subsequent divisions and/or state agencies under the jurisdiction of the Commission involving a [named business] [2] All public records (between the dates of August 15th, 2020, thru May 13, 2023) including emails, email attachments, files, texts, and photographs sent or received by all employees of the Massachusetts Gaming Commission including subsequent divisions and/or state agencies under the jurisdiction of the Commission involving a [named person]. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1199 Determination of the Supervisor of Records (June 21, 2023). In my June 21st determination, I closed the appeal after the Commission indicated that it would provide a further response. On June 27, 2023, the Commission provided a response. In the Commission’s June 27, 2023 response, it indicated that all responsive records had been provided except for three emails which were exempt from 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

Judith Young, Esq. SPR23/1472; SPR23/1498 Page 2 July 11, 2023 disclosure pursuant to the attorney-client privilege. Unsatisfied with the Commission’s response, Mr. Nucera petitioned this office and this appeal, SPR23/1498, was opened as a result. 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. Att’y 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. In regards to Mr. Nucera’s May 12th and May13th requests, based upon a conversation between a Public Records Division staff attorney and a Commission representative, it is my understanding that the Commission intends on providing a subsequent response to Mr. Nucera to address his concerns. SPR23/1472 On June 7, 2023, Mr. Nucera modified his May 12th and May 13th requests to include the following: [1] all communications the Massachusetts Gaming Commission employees have had with any and all employees of Encore Casino Boston Harbor, as well as parent Company Wynn Resorts Las Vegas, in regards to the investigation, surveillance and harassment of [a named person] between November 2020 up to and including today’s date June 7th 2023… [2] all communications between the MGC, IEB, and GEU and Encore BH/Wynn Resorts Corporation shall include emails, email attachments, photographs, files, documents, video and texts from personal cell phones used for work[.] On June 22, 2023, the Commission responded to Mr. Nucera. Unsatisfied with the Commission’s response, Mr. Nucera petitioned this office and this appeal, SPR23/1472, was opened as a result.

Judith Young, Esq. SPR23/1472; SPR23/1498 Page 3 July 11, 2023 The Commission’s June 22nd response In the Commission’s June 22, 2023 response, it stated the following: The Commission has only included responsive documents that have not been previously provided to you in response to your most recent public records requests, dated May 12 and 13, 2023, respectively. To reiterate, much of the materials responsive to your June 7, 2023, request were within the Commission’s May 26, 2023, responsive production to you. We understand that the May 26, 2023, production is currently under review for an Appeal you have filed with the Public Records Division, bearing number “SPR231199,” and is referenced as an email attachment in the responsive packet. In a further response on July 7, 2023, the Commission explained the following: As it did in our prior responses provided to Mr. Nucera and the Supervisor of records regarding Appeal (SPR23-1199) dated June 15 and June 27, respectively, the Commission again affirms and restates here in response to this Appeal, (SPR23-1472), that a diligent search did not return any additional records that Mr. Nucera is seeking. More specifically, a diligent search returned no “communications between the MGC, IEB, and GEU and Encore BH/Wynn Resorts Corporation.” Please note that 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). Additionally, Mr. Nucera is advised that “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” See 950 C.M.R. 32.07 (emphasis added). In a telephone call between a member of this office and a representative of the Commission, the Commission confirmed that Mr. Nucera has been provided with all responsive records regarding his June 7th modified request on June 22, 2023. The Commission noted that the additional documents Mr. Nucera sought were provided to him previously. Where Mr. Nucera has already been provided with one copy of the records he seeks in his June 7th request in a previous production of records, I will now consider this portion of the administrative appeal closed. Conclusion Accordingly, the Commission is ordered to provide Mr. Nucera with a response to his May 12th and May 13th requests in a manner consistent with the Public Records Law and its

Judith Young, Esq. SPR23/1472; SPR23/1498 Page 4 July 11, 2023 Regulations within 10 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. Mr. Nucera may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Nucera