Commonwealth Transparency v. Massachusetts Gaming Commission (SPR 20241919)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1919 Judith 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 Commonwealth Transparency (“requestor”) 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 June 19, 2024, the requestor sought the following: Please provide the following… about the City of Malden, Massachusetts [(City)]… [1] Any communications between the [Commission] and any employee/public official of [the City]. This includes but is not limited to electronic mail, text messages, voice messages, and written communications and meetings[;] [2] Any applications made by [the City;] [3] Any awards made to [the City;] [4] Any payments made to [the City;] [5] Any contracts to which [the City] is a party[;] [6] Any complaints/investigations of [the City; and] [7] Any reports of [City] activities or compliance or applications or awards or disbursements. The Commission responded on July 5, 2024, and provided responsive documents for Items 2 through 7 of the request as well as a fee estimate for records responsive to Item 1 of the request. Unsatisfied with the Commission’s response, the requestor petitioned this office and this appeal, SPR24/1919, was opened as a result. Subsequently, on July 17, 2024, the Commission provided a supplemental response and the requestor further appealed this response. 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. SPR24/1919 Page 2 July 18, 2024 Fee Estimates - Agencies 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. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Commission’s July 5th and July 17th response and fee estimate In its July 5, 2024 response, the Commission provided records responsive to Items 2 through 7 of the request. In a letter to this office and the requestor on July 17, 2024, the Commission provides additional information concerning its fee estimate. With respect to records responsive to Item 1 of the request, the Commission provides a total fee estimate of $14,027.50 and provides the following in support of its fee estimate: Regarding the first item of your request, an initial search of the Commission’s emails returned 11,302 potentially responsive emails and attachments. It would take staff approximately 561 hours to complete this request, across several months. At a rate of $25 per hour, minus the first four hours which are free, the estimated fee to complete this request is $14,027.50. Given the high price associated with this search, the Commission can continue to work with you to modify the scope of your request by, for example, altering the search parameters and terms; narrowing the date range of the search to a certain period of time; or identifying more particular terms or individuals to search within the yielded emails. Each of these modifications generally results in a decrease of

Judith Young, Esq. SPR24/1919 Page 3 July 18, 2024 potentially responsive items, and a lower fee. Please find the materials responsive to the second through seventh items of your request attached to this correspondence. We additionally wish to inform you that a diligent search for “any complaints/investigations of Malden” returned no responsive records. Given the file size of the production, the responsive files have been uploaded to the Commission’s Secure File Share Website…. Given the number of responsive items associated with your request, the Commission will continue to make rolling productions to you until this request is completed. Additionally, in its July 17th response, the Commission explains the following: The basis for estimate provided to the Requestor was that the search results were likely to contain information which was required by law to be segregated or redacted pursuant to the statutory exemption of the Massachusetts Public Records Law, M.G.L. c. 4, § 7(26)(a), including attorney-client privileged information, for which the public records law permits an agency to assess a fee under M. G. L. c. 66, § 10(b). Current Appeal In its appeal, the requestor states: The [Commission] has failed to produce 11,302 responsive emails. The [Commission] is attempting to charge $14,207.50 for these responsive emails and has no legal right to charge for the records. The [Commission] can only charge for search (which is complete as they have identified 11,302 responsive emails), segregation for redactions (which is inapplicable in the instant case as there is no statutory cause or allowable reason for redactions), and redaction (which is not legally permissible in the instant case). The [Commission] has failed to identify any exemption to which any of the aforementioned responsive records fall. The [Commission] is improperly withholding and appears to be secreting public records. Following the Commission’s July 17th response, the requestor states: The [Commission] for the very first time is now claiming attorney-client privilege for the responsive records…. Neither the… Commission or the City… can create an attorney-client relationship between each other statutorily. Absent an attorney- client relationship, there is no attorney-client privilege available to the [Commission]. Although the Commission has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 561 hours of employee time, it is unclear how Commission requires this many hours to produce responsive records. It is not clear

Judith Young, Esq. SPR24/1919 Page 4 July 18, 2024 from the Commission’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction of the records. Further, where the Commission has provided an estimate of 561 hours, indicated its intent to charge $25 per hour and subtract the first four hours, it is unclear how the Commission calculated a total fee of $14,027.50. Additionally, the Commission must explain how many minutes per page it requires to redact the responsive records. The Commission must clarify these matters. Additionally, although the Commission indicates it will charge $25 per hour, it is unclear that this is the lowest rate for an employee capable of performing the tasks involved in producing the records. Consequently, the Commission must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. As such, the Commission must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee to be reasonable). I encourage the requestor and Commission to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § 10(a)(i). The Commission must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). With regard to the requestor’s objections regarding the Commission’s claims of attorney- client privilege redactions, please be advised that where the Commission has yet to produce the records responsive to Item 1 of the request, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the Commission’s response within ninety calendar days. See 950 C.M.R. 32.08(1). For the reasons discussed above, I find the Commission must revise its fee estimate with regards to Item 1 of the request or provide further explanation of how the fee assessed in its July 5th estimate is consistent with G. L. c. 66, § 10(d). Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In its July 5, 2024 response, the Commission asserted, “[g]iven the file size of the production, the responsive files have been uploaded to the Commission’s Secure File Share Website. Please use the below hyperlink to access the files. When prompted, please enter your email and the secure password (which will be emailed to you separately). Please be advised that

Judith Young, Esq. SPR24/1919 Page 5 July 18, 2024 this hyperlink will expire after 14 days, or 10 uses; whichever occurs first.” In the appeal, regarding the responsive records produced for Items 2 through 7 of the request, the requestor states, “…the [Commission] requires a username and password to download responsive records….” In the July 17, 2024 response, the Commission further clarified: The Requestor did not have to “create” a username, nor a password to access the documents, but simply needed to enter in the email they had previously used in corresponding to the Commission to access the responsive production. … In its initial request, the requestor also noted their preference for metadata…. Accordingly, the Commission could neither compress the production, and send it via email, nor could it combine the documents into one large PDF, as doing so would eliminate the metadata and properties within the original documents; some dating back to 2015 and 2016 respectively. In sum, the Commission utilized Secure File Share to provide the documents the requestor requested, and in the format the requestor preferred. For future productions, the Commission is amenable to provide the documents to the requestor in an alternative way that does not utilize Secure File Share, (i.e. Dropbox) but we caution that it may affect the request for metadata within the documents…. In light of the Commission’s explanation, I encourage the parties to communicate directly to resolve any outstanding issues about the format of the records responsive to Items 2 through 7 of the request. Conclusion Accordingly, the Commission is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. The requestor may appeal the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency