The Foxwoods right-to-know fight

Nov. 24

By Kellie Patrick Gates
For PlanPhilly

Attorneys for two Philadelphia advocacy groups hope to convince the state’s Office of Open Records to order the Pennsylvania Gaming Control Board to release documents filed by Foxwoods Casino.

Paul Boni, who represents Casino-Free Philadelphia, and Adam Cutler, a director with the Public Interest Law Center of Philadelphia, who represents the Chinatown Preservation Alliance, took the matter to the Office of Open Records to appeal the denial of a public records request made to the PGCB.

The documents that Casino-Free and Chinatown Preservation seek comprise a report that Foxwoods was required to file with the PGCB’s Bureau of Investigation and Enforcement in October, as a condition of the two-year license extension the Gaming Control Board granted the casino in August.

Casino officials were told to describe their efforts to develop a Columbus Boulevard facility with at least 1,500 slot machines and detail their efforts and progress toward financing that casino. They also had to submit a list of all outstanding licenses, certifications and permits that they need from federal, state, county, local and other agencies, and provide a progress report on the status of each of them.

It would be good for the public to see this information, too, Cutler and Boni say – particularly when Foxwoods’ status is uncertain. “We think these documents are of public importance, both in terms of determining whether Foxwoods is honoring the conditions that were imposed by the Gaming Board in its extension of time request, and in determining whether the Gaming Board is exercising its authority appropriately in determining whether those conditions are being adhered to,” Cutler said.

In a document filed with the Office of Open Records Monday in response to Boni’s and Cutler’s filing,  PGCB attorney Denise L. Miller-Tshudy called the argument that Boni and Cutler have a right to the documents as members of the public, in order to monitor the board’s enforcement of its Sept. 1 decision granting Foxwoods extension, “most interesting.”
“It is not the public’s duty to monitor compliance with Board orders or violations of the Gaming Act or the Board’s regulations,” Miller-Tshudy wrote.  The PGCB has sole authority here, she said.  She quoted an earlier Commonwealth Court decision involving the Department of Health which stated that allowing private citizens to become involved in state agency business would “produce chaos.”

She wrote the report sought is not public information because it is protected under the state’s gaming law and is part of an on-going investigation.

“The BIE has the power and duty to, among other things, investigate licenses for non-criminal violations, including for potential violations referred to the Bureau by the Board or other person and monitoring compliance with the Gaming Act and Board’s regulations,” she wrote. “The documents sent to BIE on Oct. 1 2009 were received as a result of a Board order; however, they were also received in accordance with BIE’s statutory power. By way of BIE’s statutorily given authority and power, any records provided to or collected by BIE are per se investigative in nature.”

Miller-Tshudy also wrote that state gaming law, “strictly protects information given by its applicants, licensees, permittees and certificate holders due to the very sensitive and confidential information required of them in the pursuit of determining whether or not the entity or person is eligible and suitable to hold the privilege of that credential.” 

Miller-Tshudy could not be reached for comment; PGCB Spokesman Doug Harbach referred PlanPhilly to the document she filed.

In an affadavit attached to the PGCB filing, Paul Mauro, BIE deputy director, states that the information collected through the report is being used by the BIE for the purpose of monitoring Foxwoods’ compliance with the board and its “suitability for licensure.”  He states, “These documents will be utilized as evidence by BIE in future proceedings before the board …”

Foxwoods, which has been allowed to file information as an intervener in the case, also says the filing should not be released, for reasons very similar to the PGCB’s.  It’s very clear this is an investigation, wrote Foxwoods attorney F. Warren Jacoby. At the August 28 license extension hearing, when Chief Enforcement Counsel Cyrus Pitre was asked what would happen if Foxwoods failed to meet the conditions imposed by the board, he said that the casino’s license could be revoked. “Chief Counsel added: ‘If they’ve not met the burden of showing that they were moving forward or trying to do their best to attain or reach certain benchmarks, then we would be filing an enforcement action to revoke their license.’” Jacoby wrote.

Boni disagrees that anything that goes to the BIE is automatically part of an investigation. “It is self-serving of the agency to say that anything that goes to BIE is confidential,” he said. “All that means is if there is any information that it wants to keep secret, it could have it sent to the BIE.”

Cutler said there are some elements of the documents that likely are confidential under the law – things like social security numbers, but that doesn’t mean the entire document should be confidential. These items should be redacted.

But, Boni said, things such as Foxwoods’ progress toward opening on the waterfront, its design, and its permit status should all be public information – especially now, as they could shed light on the project’s viability.

As of  mid-October, when Foxwoods attorney Jacoby wrote a letter to the gaming control board chairman saying the casino may need to build a temporary facility to open by their current deadline – May 2011 – financing for the project had not been secured.  An amendment that would further extend the casino’s deadline was mysteriously added to a bill in Harrisburg, and then just as mysteriously was removed. Some local state legislators have been calling for the state to rescind the casino’s license.

Long-time Foxwoods spokeswoman Maureen Garrity, vice president of Tierney Communications, is no longer the press agent for the casino. Foxwoods attorney Stephen Cozen is now taking press calls, she said.  Cozen could not be reached for comment Tuesday, nor did he respond to a phone and email request to talk about the temporary casino last month.

Both Alan Greenberger, the city’s deputy mayor for planning and commerce, and Terry Gillen, the mayor’s senior advisor on economic development and point-person on casinos, told PlanPhilly recently that they have no idea what is happening with Foxwoods, because they have not received any information from the casino’s developers. 

The October report was just the first. The PGCB confirmed that the November deadline was met. A third report is scheduled to be filed by Dec. 1. The public records case is only about the first report, but Boni and Cutler say the ultimate ruling will set precedent for future requests.

As of the current schedule, Boni and Cutler have until Dec. 1 to respond to the recent PGCB and Foxwoods filings. The Board and Foxwoods must respond to that by Dec. 7. And the Office of Open Records is expected to rule by Dec. 14.

Both the petitioners and the PGCB have the right to appeal that decision to Commonwealth Court.

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