Paul Trant v. Massachusetts State Lottery Commission (SPR 20251465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2025 SPR25/1465 Gregory M. Polin, Esq. General Counsel State Lottery Commission 150 Mount Vernon Street Dorchester, MA 02125 Dear Attorney Polin: I have received the petition of Paul Trant appealing the response of the State Lottery Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 17, 2025, Mr. Trant requested “copies of public records that indicate the date and time the MA Lottery became aware that a one million dollar ($1,000,000) instant game ticket in the Game #444 Bonus 50X was scanned as a winning ticket. I am requesting public records on each of the three (3) one-million-dollar ($1,000,000) prizes in Game #444 Bonus 50X to include the claimed prize and two remaining unclaimed prizes.” On May 4, 2025, Mr. Trant clarified his request as follows: I have been told by numerous lottery agents that the two unclaimed one million ($1,000,000) prizes in game 444 Bonus 50X game have been sold. Additionally, I have been told by these same lottery agents that the lottery knows they have been sold. Based on this information and belief, I submitted my public record request to obtain information on the date and time the lottery became aware that these two unclaimed one million prizes were sold. I believe this information was created when the Bonus 50X ticket was scanned using the lottery app or in a store that uses lottery app to check if a scratch ticket is a winner or loser. When a winning ticket is scanned, the lottery computer that has the software that tracks winning tickets for a specific game will have this information. [The Commission] did not provide me this information for when the claimed one million ($1,000,000) winning ticket was first scanned, [the Commission] simply told me when it was claimed, which I did not ask for. 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

Gregory M. Polin, Esq. SPR25/1465 Page 2 June 9, 2025 The Commission responded to the modified request on May 19, 2025. Unsatisfied with the Commission’s response, Mr. Trant petitioned this office, and this appeal, SPR25/1465, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to this office and Mr. Trant on May 30, 2025. 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. Attorney 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. Current Appeal In his appeal petition, and in subsequent correspondence to this office, Mr. Trant argues the following: The lottery seeks to withhold this scratch ticket scanning public information for a date and time request. I did not ask or seek location data. [Exemption (c)] is intended to be used for personnel, medical files or could specifically identify an individual. My request does none of these. . . . Exemption F clearly does not apply. Mr. Polin makes no assertion to an ongoing law enforcement investigation. This exemption cannot be claimed to withhold public records for some unknown future investigation. . . . Mr. Pollin did not provide a reason to support [Exemption (b)]. I attached the rules for Bonus 50X game. . . . My public record request pertains to a current and/or active instant game that the lottery is currently conducting. I do not agree that this request will interfere with the integrity of lottery games and/or provide me and/or the public with an unfair

Gregory M. Polin, Esq. SPR25/1465 Page 3 June 9, 2025 advantage regarding lottery prizes. The lottery strives to provide hourly updates on their website of prizes claimed for this game. The Commission’s May 19th and May 30th Responses In its May 19, 2025 response, the Commission states the following: To the extent the Lottery has records related to what you seek, such records may be subject to and withheld pursuant to Massachusetts General Laws Chapter 4, § 7, cl 26 (a) statutory exemption, (b) internal personnel rules and practices, (c) privacy exemption, and/or (f) investigatory exemption. In its May 30, 2025 response, the Commission further elaborates on it claims for withholding the responsive records, and also explains the following: The Lottery intuited Mr. Trant’s public records request, which was received by the Lottery on May 5, 2025, to include the scanning history of the Bonus 50X instant ticket with a one million dollar ($1,000,000) prize that was claimed on August 23, 2024, and the scanning history of the two (2) Bonus 50X instant tickets, each with a one million dollar ($1,000,000) prize, that have not yet been claimed. 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, 154 (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

Gregory M. Polin, Esq. SPR25/1465 Page 4 June 9, 2025 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 May 30th response, the Commission argues the following: Pursuant to G.L. c. 10, § 24, the Legislature has mandated the Lottery to “conduct a state lottery,” which entails a chance for a prize for a price. Releasing information pursuant to a public records request that would interfere with the integrity of Lottery games and/or provide the requestor wi[th] an unfair advantage regarding Lottery prizes is by necessary implication exempted from disclosure by statute. To the extent the Lottery has the scanning history records that Mr. Trant seeks, such records would also be subject to and withheld pursuant to exemption (a) (statutory). The statute cited by the Commission, G. L. c. 10, § 24, authorizes the Commission to conduct a state lottery, and addresses the duties of the Commission. However, the Commission has not demonstrated how the statute either explicitly or by necessary implication exempts the responsive records from disclosure. Further, it is unclear how the withheld records in this case constitute the types of records contemplated under G. L. c. 10, § 24. The Commission must clarify this. Exemptions (b), (c) and (f) In its May 30th response, under Exemptions (b), (c) and (f), the Commission argues the following: With respect to the scanning history of the Bonus 50X instant ticket with a one million dollar ($1,000,000) prize that was already claimed, the Lottery would withhold such data pursuant to exemption (c) (privacy), as the public interest in obtaining the dates, times, and locations of scanning activity does not substantially outweigh the concerns relating to invasion of privacy. Further, the Lottery would withhold such data pursuant to exemption (f) (investigatory) and exemption (b) (internal personnel rules and practices), as this scanning data can be used by the Lottery when reviewing claims and its disclosure could compromise future investigative efforts and render the Lottery more susceptible to false or fraudulent claims. With respect to the scanning history of the two Bonus 50X instant tickets, each with a one million dollar ($1,000,000) prize, that have not yet been claimed, the Lottery is unaware if it has records responsive to this request. If the Lottery were to attempt to extract this information from its gaming system, which may not be possible without ticket-specific information such as a ticket number, the Lottery would withhold such data pursuant to exemption (f) (investigatory) and exemption (b) (internal personnel rules and practices), as this scanning data can be used by the Lottery when reviewing claims and its disclosure could

Gregory M. Polin, Esq. SPR25/1465 Page 5 June 9, 2025 compromise investigative efforts and render the Lottery more susceptible to false or fraudulent claims, especially with respect to these unclaimed tickets. Additionally, the Lottery would withhold such data pursuant to exemption (c) (privacy), as the public interest in obtaining the dates, times, and locations of scanning activity does not substantially outweigh the concerns relating to invasion of privacy. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In this case, the Commission has not demonstrated that the responsive records are solely related to internal personnel rules and practices of the government unit. Additionally, the Commission has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of agency regulations and statutes. Therefore, the Commission has not met its burden to withhold the responsive records under Exemption (b).

Gregory M. Polin, Esq. SPR25/1465 Page 6 June 9, 2025 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Based on the Commission’s response, it is unclear how the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Commission did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Commission must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Gregory M. Polin, Esq. SPR25/1465 Page 7 June 9, 2025 disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Based on the Commission’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Commission did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). The Commission must clarify these matters. Duty to Identify the Records Additionally, it is unclear from the Commission’s response which specific records the Commission intends to withhold. The Commission must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a 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”). It is further uncertain why the records must be withheld in their entirety. The Commission must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Commission is ordered to provide Mr. Trant 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. Mr. Trant may further appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Gregory M. Polin, Esq. SPR25/1465 Page 8 June 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Paul Trant