Michael Norton v. Massachusetts Gaming Commission (SPR 20232939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2939 Judith A. Young, Esq. Associate General Counsel Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Young: I have received the petition of Michael Norton appealing the response of the 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 November 13, 2023, Mr. Norton requested “camera footage used in the revocation of License [serial number]/ Denial of [serial number].” The Commission responded on November 17, 2023, citing Exemption (a) of the Public Records Law and G. L. c. 23K, § 21 (a)(7) for withholding responsive records. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Commission’s response, Mr. Norton appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Commission provided a supplemental response to Mr. Norton and this office on December 15, 2023. 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. 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. SPR23/2939 Page 2 December 19, 2023 The Commission’s November 17th and December 15th Responses In its November 17, and December 15, 2023 responses, the Commission cites Exemption (a) of the Public Records Law and G. L. c. 23K, § 21(a)(7) for withholding “the footage ... taken from surveillance cameras at the Plainridge Park Casino located in Plainville, Massachusetts.” See G. L. c. 4, § 7(26)(a). 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. In its November 17th and December 15th responses, the Commission cites G. L. c. 23K, § 21(a)(7), which provides in pertinent part as follows: (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,

Judith A. Young, Esq. SPR23/2939 Page 3 December 19, 2023 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). Additionally, the Commission cites 205 C.M.R. 139.02, which provides in pertinent part as follows: All documents submitted by a gaming licensee or obtained by the commission 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 commission, 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 commission enter into a written nondisclosure agreement under the terms of which the commission 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 commission on more than one occasion. A request for a non-disclosure agreement shall be on a form provided by the commission. Upon review of the gaming licensee’s request, the commission may execute such an agreement in its discretion. In lieu of withholding a record in its entirety, the gaming licensee and the commission may agree that the material or information be publicly released in a redacted form, an aggregated fashion, or in other agreed upon manner. 205 C.M.R. 139.02. Further, the Commission explains the following concerning its nondisclosure agreement executed with Plainville Gaming and Redevelopment, LLC concerning the Plainridge Park Casino: Section 1 of the nondisclosure agreement goes on to identify 31 categories of “information and materials submitted to or obtained by the Commission from the gaming licensee” to which the nondisclosure agreement applies. Those categories

Judith A. Young, Esq. SPR23/2939 Page 4 December 19, 2023 include the following: - Item 28: Video Records, audio records, and photographs obtained from Plainridge Park Casino’s surveillance system by any means. - Item 29: Those parts of floor plans or Plainridge Park Casino depicting sensitive areas of the casino including the cage, count room, main bank, back of the house, and armored areas. Finally, the Commission argues the following concerning the applicability of the above statute, regulation, and nondisclosure agreement to the responsive video footage: [G]iven that the surveillance footage requested falls within the categories of the nondisclosure agreement, the agreement is executed between the Commission and Plainville Gaming and Redevelopment, 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 licensees and their qualifiers pursuant to G.L. c. 23K and 205 CMR [139.02], the Commission asserts that it has appropriately withheld these documents pursuant to the statutory exemption to the Public Records Law, G.L. c. 4, § 7(26)(a). Based on the Commission’s November 16th and December 15th responses, where the responsive video footage is the type of record contemplated in the nondisclosure agreement created pursuant to G. L. c. 23K, § 21(a)(7) and 205 C.M.R. 139.02, I find that the Commission has met its burden to withhold the video footage under Exemption (a) of the Public Records Law and the statute and regulation cited above. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Norton 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael Norton