Outstanding Achievement by a State Agency in Public Records Law Evasion: The Award Goes To…

The Massachusetts Gaming Commission, in a unanimous decision by the judges.

State and municipal agencies are prone to resisting public records requests (sometimes for reasons that may be understandable — like a lack of resources — but are nonetheless insufficient).  We’ve seen their trailblazing efforts at evasion in such areas as dilatory response tactics, exaggeration of the costs of compliance, and the fearless use of redaction.

Meanwhile, the Gaming Commission truly has been thinking outside the box. Rather than evading the law by withholding records that are in its possession (shutting off the outflow pipe), the Commission has pioneered a new approach: evading the law by declining to accept records in the first place (shutting off the inflow pipe).

Here’s what won the award for the Gaming Commission:

By statute, casinos have to file reports with the Commission about the complimentary services — “comps” in the trade lingo — that they provide. Comps are things like a free drink, a free meal, a free room — whatever will keep the gambler on the premises. In one famous case, a very wealthy casino patron was treated to comps in the form of private jet flights to Las Vegas, which contributed to her betting a billion dollars at casinos and racking up thirteen million dollars in gambling losses.

Information about comps is certainly not something the casinos favor disclosing, and they sought relief from this filing requirement. The Gaming Commission, agreeing with the casinos, recommended to the Legislature that it eliminate the requirement, but the Legislature failed to act. So the Gaming Commission stepped in to take care of the problem.  They used their regulatory power to excuse the casinos from having to file the reports, while continuing to require that the casinos maintain them and provide them to the Commission upon request.  Since the Commission has already stated that it “cannot envision a compelling use for this data,” don’t expect a request for the records anytime soon.

So the Gaming Commission has no records, for example, of the comps from the Plainville casino, which opened last year. If they did have them, those records would be subject to the public records law and we could have them too.  But no. Not so far anyway.

It’s certainly possible to argue that the statute requiring that casinos “shall submit” reports to the Commission doesn’t give the Commission leeway to decline them.  That the statute would result in the records being available under the public records law while the Commission’s regulation results in their being unavailable seems relevant to this whole analysis.  The right plaintiff could make things interesting.

(An earlier version of this post cited a source that misstated the amount of gambling losses accrued by the wealthy casino patron. Error, which author regrets, has been fixed.)

 

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