Commonwealth Transparency v. Massachusetts Gaming Commission (SPR 20242637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2024 SPR24/2637 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.” Previous Appeals This request was the subject of previous appeals. See SPR24/2204 Determination of the Supervisor of Records (August 15, 2024); SPR24/2321 Determination of the Supervisor of Records (August 29, 2024); and SPR24/2601 Determination of the Supervisor of Records (September 19, 2024). In my September 19th determination, it was my understanding that the Commission provided a supplemental response on September 17, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2637, 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. SPR24/2637 Page 2 October 1, 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 September 17th Response In its September 17, 2024 response, the Commission stated the following: At this time, the Commission has no additional statements it wishes to provide regarding the aforementioned appeals and/or the July 18th records request by Commonwealth Transparency. Our August 15th statement to the Supervisor’s office, and our September 11th response to Commonwealth Transparency have explained our position on this request and have been re-attached here for your consideration... We again affirm that our office has no additional materials to provide to the requestor. Current Appeal In his appeal, the requestor states, “[t]he [Commission] continues to fail to provide the responsive records specifically sought… Nothing has changed in their response, they just simply fail again to provide the responsive records.” No Duty to Create Records Please be advised, under the Public Records Law the Commission is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Commission does not possess any additional records responsive to the July 18th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this

Judith Young, Esq. SPR24/2637 Page 3 October 1, 2024 administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency