Pedro Jorge v. Massachusetts Gaming Commission (SPR 20232718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2023 SPR23/2718 Judith A. Young, Esq. Associate General Counsel Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Young: I have received the petition of Pedro Jorge appealing the response of the Massachusetts Gaming Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2023, Mr. Jorge requested: [1] Email [correspondence] between June 1, 2022 to June 1, 2023 sent to or received by . . . discussing former Gaming Agent . . . To include but not limited to discussing Gaming Agent level; [2] Email correspondence between June 1, 2022 to June 1, 2023, sent to or received by . . . discussing former Gaming Agent . . . to include but not limited to discussing Gaming Agent level; [3] Email correspondence between June 1, 2022 to June 1, 2023, sent to or received by the Chief People Officer at that time discussing former Gaming Agent . . . to include but not limited to discussing gaming agent level; [4] Email [correspondence] sent to or received by . . . in 2022 discussing the determination to promote Gaming Agent . . . from Gaming Agent level One to Gaming Agent Level Two; [5] Email correspondences sent to or received by . . . in 2022 discussing the determination to promote Gaming Agent . . . from Gaming Agent Level One to Gaming Agent Level Two; [6] Email correspondence between June 1, 2022 to June 1, 2023, sent to or received by . . . discussing the SEIU Union; [7] Email correspondence between June 1, 2022 to June 1, 2023, sent to or received by . . . discussing the SEIU Union; [8] Email correspondence between June 1, 2022 to June 1, 2023, sent to or received by Executive Staff discussing the SEIU Union. 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 A. Young, Esq. SPR23/2718 Page 2 November 22, 2023 On October 27, 2023, the Commission provided Mr. Jorge with a response. The Commission informed Mr. Jorge, “[d]ue to the magnitude and complexity of your request, the Commission will need additional time to process this production. We currently expect to produce responsive records by November 6, 2023, and will supplement this production, if necessary, after that date.” On November 7, 2023, the Commission provided Mr. Jorge with a link and password to access the responsive records, and explained, “[t]he Commission is still actively reviewing more records for their responsiveness to your request and will make additional productions to you.” After reviewing the records provided, on November 8th, Mr. Jorge emailed the Commission, stating, “[a]fter looking at the attached file containing 157 pages I noticed that pages 1-20 appear to be incomplete email communications and that 20-157 appear to be public meeting documents and pay table information. Most of these documents do not appear to correlate to any items in my request dated and acknowledged by the Commission October13, 2023.” In an email to this office, Mr. Jorge petitioned for an appeal regarding, “[r]ecords produced after extension that did not fulfill my request and appear to be mostly public meeting records.” As a result, this appeal was opened. 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) (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…”); 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). 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.

Judith A. Young, Esq. SPR23/2718 Page 3 November 22, 2023 Current Appeal The basis of Mr. Jorge’s appeal pertains to the production of documents that appear to be unresponsive to his October 13th request. Subsequent to the opening of the current appeal, on November 8th, the Commission responded to Mr. Jorge’s email and asserted, “I received your message and am writing to see if we could discuss the below email, and the Commission’s response to you. I’m hopeful we can get things sorted, and I can answer some of your questions.” In a November 9th email to this office, the Commission states, “Mr. Jorge and I spoke twice yesterday afternoon regarding his October 13th request. He provided helpful clarification to the types of records he was and was not seeking from the Commission. The Commission is waiting for Mr. Jorge’s confirmation of the modifications he provided on our call, via email, that will assist in our production of the requested records. Please see attached correspondence to Mr. Jorge. Our office can provide additional information within a formal statement to the Secretary’s Office within the required time period. However, we would also like to allow to Mr. Jorge the opportunity to approve or adjust the modifications we discussed, if permissible.” Included with the November 9th email to this office, the Commission provided a November 8th email from the Commission to Mr. Jorge memorializing the discussion with Mr. Jorge, and the clarification of the requests that Mr. Jorge made on November 8, 2023. Based on the Commission’s November 8th response to Mr. Jorge, after the parties engaged in telephone discussions regarding clarification to his October 13, 2023 request, I encourage the parties to continue to communicate to enable Mr. Jorge to receive the specific records requested. If issues remain, Mr. Jorge may petition the Supervisor of Records for another appeal. Conclusion Accordingly, whereas the parties are working together regarding Mr. Jorge’s request, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Pedro Jorge