Commonwealth Transparency v. Massachusetts Gaming Commission (SPR 20242321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2024 SPR24/2321 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 July 18, 2024, the requestor sought, “the author and all recipients (To:, Cc:, and/or Bcc:), the date and time, and subject heading of all email sent by and/or received by any electronic mail between the MGC and any employee/public official of Malden… This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form.” Prior Appeal This request was the subject of a prior appeal. See SPR24/2204 Determination of the Supervisor of Records (August 15, 2024). In my August 15th determination, it was my understanding that the Commission sent a subsequent response on August 15, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2321, 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). 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. SPR24/2321 Page 2 August 29, 2024 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. 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 August 15th Response In its August 15, 2024 response, the Commission stated the following: On August 1, 2024, the Commission provided a response to the Requestor. The response stated that the Commission did not possess records that were completely responsive to the July 18, 2024, request, but noted that the Commission had provided two .CSV files that were extracts of the 11,302 emails that were responsive to their request… On August 2, 2024… [t]he Commission confirmed that it provided two records in .CSV format, and that it had no additional records to provide to the Requestor. The Requestor subsequently filed an appeal on August 2, 2024. The Commission recognizes that 950 CMR 32.07(1)(f), states that the provision of an extract of requested data does not constitute creation of a public record... Accordingly, the Commission provided the Requestor with the two responsive .CSV files that were extracted from the search program, which reported the search conditions selected by staff; and the top locations, or inboxes of Commission staff members and the number of responsive items. Anticipating that the Requestor may be dissatisfied with the records provided, the Commission’s response explained that the extracted files did not directly respond to the type of record the Requestor had sought in its July 18, 2024, request, as neither record contained the categories that they listed in their original request. The specific categories of data that the Requestor sought for all 11,302 emails (i.e., author and all recipients (To:, Cc:, and/or Bcc:), the date and time, and subject heading), were not yet in existence at the time of the search. However, the two .CSV extracts, were in existence and subsequently provided to the Requestor on August 1st. … The specific kind of record the Requestor sought could be created by staff after the contents of the search (responsive emails) were downloaded from the search program and committed into a Review Set. From there, a staff member(s) would

Judith Young, Esq. SPR24/2321 Page 3 August 29, 2024 begin their review and segregation of records for necessary exemptions, including records subject to the attorney-client privilege. We affirm that Commission provided the Requestor with the only files that are generated when a search is compiled and run within our search program… Current Appeal In his appeal, the requestor states, “[n]othing has changed, no additional records were provided, the MGC failed to provide the requested records. For each of the 11,302 identified records, we requested the to: from: CC; Bcc:, Time & Date, the subject and any attachments. MGC provided a query, a response, and 540 lines of data which appear to summarize MGC email accounts activity, not the records requested.” Records in existence Based on the Commission’s response, in conjunction with the requestor’s appeal, it is unclear whether the Commission possesses records responsive to the request. If the Commission does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). 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). The Commission must clarify this matter. 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency