Paul Trant v. Massachusetts State Lottery Commission (SPR 20251805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2025 SPR25/1805 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. SPR25/1805 Page 2 July 8, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/1805 Determination of the Supervisor of Records (June 9, 2025). In my June 9th determination, I ordered the Commission to identify the records and to clarify its claims for withholding the records pursuant to Exemptions (a), (b), (c), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (b), (c), (f). Subsequently, the Commission responded on June 24, 2025. Unsatisfied with the Commission’s response, Mr. Trant petitioned this office, and this appeal, SPR25/1805, 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). 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, Mr. Trant argues the following: In Massachusetts, the name, address, transaction history, account balance, and other personal or identifying information of an individual who purchases lottery tickets, games, or shares through online or other electronic means are generally exempt from the state’s Public Records Law. This is not what my public record request is seeking. In an email to this office and the Commission on July 2, 2025, Mr. Trant further argues the following: Once again, I believe the reasons provided and/or lack of reasons provided, do not support each exemption cited G.L. c. 10, s.24(c) was amended in 2024 when the law was changed due to the lottery being approved for online sales over the

Gregory M. Polin, Esq. SPR25/1805 Page 3 July 8, 2025 internet. The scanning data of instant lottery tickets within the Lottery’s gaming system was a public record prior to this change in s.24(c). Section 24(c) begins by stating “Notwithstanding any general or special law to the contrary” and specifically relates to online sales over the internet. The approval of lottery online sales over the internet did not create a blanket statutory exemption to scanning data. I do not believe the lottery clarified their responses given for exemptions B, C and F as you directed. My request is not looking for identifying information of an individual of any kind. A scratch ticket has a bar code that once scanned, creates a public record of date and time. I don’t want the name, address, location or any information whatsoever of the person who owns the ticket. I simply want to know the date and time that public record was created. Please keep in mind, losing instant scratch tickets also create a public record once scanned. The Commission’s June 24th Response In its June 24, 2025 response, the Commission provides the following description of the potentially responsive records: The Lottery intuits your request to include records showing when the Lottery became aware that Bonus 50X instant ticket with a one million dollar ($1,000,000) prize was scanned, including the date and time the Lottery became aware the two unclaimed, as of the date of this letter, Bonus 50X instant tickets that each have a one million dollar ($1,000,000) prize value were sold. Instant game tickets such as the Bonus 50X instant game may be scanned through the Lottery app, a Lottery terminal, or a ticket self-checker located at a Lottery Sales Agent location to determine whether it is a winning ticket. When a ticket is scanned, the individual scanning the ticket is informed whether the ticket is a winner. For tickets scanned via a Lottery terminal or ticket self-checker that have a prize value exceeding $600, the individual scanning the ticket is not informed of the specific prize value but instead the individual is informed that the ticket is a winner that needs to be claimed at a Lottery office. The Commission further explains that it intends to withhold the responsive records pursuant to Exemptions (a), (b), (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (b), (c), (f). 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

Gregory M. Polin, Esq. SPR25/1805 Page 4 July 8, 2025 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 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 June 24th response, the Commission cites G. L. c. 10, § 24(c), which provides in pertinent part as follows: Notwithstanding any general or special law to the contrary, the name, address, transaction history, account balance or other personal or identifying information of an individual who purchases lottery tickets, games or shares online, over the internet, through the use of a mobile application or through any other means shall not be deemed public records of the commission for the purposes of section 10 of chapter 66; provided, however, that this subsection shall not prohibit the commission from using a prize winner’s name, city or town of residence or photograph to publicize a lottery prize claim in excess of $600; and provided further, that this subsection shall not prohibit the commission from maintaining, using or sharing such information in the course of lottery-conducted investigation or an investigation by law enforcement or in compliance with sections 28A or 28B. G. L. c. 10, § 24(c). In its response, under G. L. c. 10, § 24(c), the Commission argues the following: With respect to the Bonus 50X instant ticket with a prize value of one million dollars ($1,000,000) that was claimed on August 23, 2024, the name, city/town of residence, and photo of the prize winner was publicized by the Lottery in accordance with 961 CMR 2.38(3). Pursuant to G.L. c. 10, § 24(c), the “transaction history…of an individual who purchases lottery tickets…shall not be deemed public records of the commission for purposes of section 10 of chapter

Gregory M. Polin, Esq. SPR25/1805 Page 5 July 8, 2025 66.” Accordingly, any scanning data of the claimed Bonus 50X instant ticket is exempt from disclosure pursuant to exemption (a) (statutory). With respect to the two unclaimed Bonus 50X instant tickets that each have a one million dollar ($1,000,000) prize value, Lottery personnel remains unaware whether these two tickets have been sold. However, when/if these two tickets are claimed, the Lottery would publicize the name, city/town of residence, and photo of the prize winner in accordance with 961 CMR 2.38(3). Accordingly, any scanning data of an individual who purchases lottery tickets is exempt from disclosure pursuant to exemption (a) (statutory). Based on the Commission’s June 24th response, I find the Commission has explained how the responsive records are the type of “transaction history” contemplated under G. L. c. 10, § 24(c). Consequently, I find that the Commission has met its burden to withhold the responsive records pursuant to G. L. c. 10, § 24(c) as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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

Gregory M. Polin, Esq. SPR25/1805 Page 6 July 8, 2025 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). 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. 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 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

Gregory M. Polin, Esq. SPR25/1805 Page 7 July 8, 2025 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. In its June 24th response, under Exemptions (b), (c) and (f), the Commission argues the following: Additionally, the scanning data of instant tickets within the Lottery’s gaming system is exempt from disclosure pursuant to exemption (b) (internal personnel rules and practices) and exemption (f) (investigatory). This type of data is predominantly used internally by the Lottery and if disclosed, would significantly risk circumvention of Lottery regulations and statutes. In particular, while specifying that transaction history of an individual who purchases Lottery tickets shall not be a public record for purposes of the Public Records Law, G.L. c. 10, § 24(c) contemplates that such data could be used “in the course of [a] lottery- conducted investigation or an investigation by law enforcement or in compliance with sections 28A or 28B.” Pursuant to G.L. c. 10, § 24(a), the Lottery shall determine, among other things, the manner of payment of prizes to the holders of winning tickets and 961 CMR 2.39 provides that if “there is an inconsistency in the information submitted in a Mobile Claim Process, on a claim form and/or as shown on the winning ticket, the Director shall make an investigation and withhold all winnings awarded to the ticket owner until such time as he or she is satisfied that the winnings are paid to the proper person.” Further, 961 CMR 2.45 provides that if “a dispute arises with respect to the winning ticket, a claim for, a Mobile Claim, the Mobile Claim Process, the payment, or the awarding of any prize, the Commission may withhold payment of the prize winnings until it determines the controversy and reaches a decision….” The public release of scanning data of unclaimed instant tickets could prejudice the Lottery’s investigative efforts when reviewing prize claims, and furthermore the public release of this data could be used by individuals to submit false or fraudulent claims and result in unwarranted prize claim disputes. The requested data may also be withheld pursuant to exemption (c) (privacy). An individual is free to scan an instant ticket to determine whether it is a winner, however the date and time of such transaction activity may be personal to the individual, especially in light of when the ticket is claimed. Frequently, claimants hold grand prize tickets for various reasons, which may be personal, before coming to the Lottery to claim a grand prize. Accordingly, the public interest in obtaining the dates and times of an individual’s scanning of an instant ticket is a

Gregory M. Polin, Esq. SPR25/1805 Page 8 July 8, 2025 matter relating to the invasion of privacy which outweighs the public’s need to know. In this case, where the Commission has met its burden to withhold the responsive records pursuant to G. L. c. 10, § 24(c), as it operates through Exemption (a) of the Public Records Law, I find it is unnecessary to address the Commission’s claims under Exemptions (b), (c), and (f) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Trant 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: Paul Trant