Office of Open Records closes Foxwoods case

Jan. 7, 2010

By Kellie Patrick Gates
For PlanPhilly

The state’s Office of Open Records says the documents Foxwoods Casino has filed with the state gaming control board as a condition of a two-year license extension are not public information.

In a ruling dated Monday, the Office of Open Records agreed with the Pennsylvania Gaming Control Board and Foxwoods that the information in the documents is protected. “The Board has met the burden of proving that it may withhold the requested records from disclosure under the (Right To Know Law) as the board deems the records wholly confidential under the Gaming Act,” Appeals Officer Audrey Buglione wrote.

Attorneys representing two Philadelphia citizens groups – Adam Cutler for The Chinatown Preservation Alliance and Paul Boni for Casino-Free Philadelphia – filed the petition with the Office of Open Records late last year, after the Pennsylvania Gaming Control Board denied their public information requests.

The two have 30 days from the ruling to appeal to Commonwealth Court. They are weighing that option, both said Thursday afternoon. But changes in the gaming act that Gov. Ed Rendell was expected to sign into law Thursday would make any effort to get documents filed with the PGCB more difficult, they said.

PGCB attorney Denise L. Miller-Tshudy argued in her response to Cutler and Boni that the Foxwoods documents are protected both because they contain information that state gaming law deems private and because they are part of a non-criminal investigation.

In an affadavit attached to the PGCB filing, Paul Mauro, Board of Investigation and Enforcement 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 was allowed to file information as an intervener in the case, also said the filing should not be released. It’s very clear this is an investigation, wrote Foxwoods attorney F. Warren Jacoby. At the Aug. 28 license extension hearing, when PGCB 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.

Cutler and Boni argued that the monitoring of Foxwoods’ progress by the gaming board did not constitute a non-criminal investigation, and quoted testimony from the license extension hearing where members of the Gaming Control Board said the documents would show that Foxwoods was meeting benchmarks toward getting the casino up and running – something the board wanted to help them do.

They also asserted that while certain facts within the documents might be confidential under gaming law, the proper solution was not to withhold the documents from the public, but to redact any confidential information prior to releasing it. Boni and Cutler also said the board offered no proof that the documents contain this type of information.

In the Office of Open Records decision, Buglione wrote that there is “no evidence in the record” that the Foxwood documents had been designated or marked as confidential by the Gaming Control Board, but that the affidavits provided by the board in its response to Boni and Cutler were proof that the board considers the documents to be protected under the gaming law.  

The Right To Know Law – and therefore the Office of Open Records – is not the proper vehicle to determine whether the board has classified the documents confidential in error, she wrote. If anyone questions whether the Gaming Control Board has misclassified something, the board has procedures for that, she wrote. The procedure: Filing a notice of dispute with the Gaming Control Board. A notice of dispute ruling by the board could be appealed to the courts, he said.

“She is saying that the (Office of Open Records) is not going to get involved. She is willing to accept that the Gaming Board can determine whether these documents are going to be disclosed,” Cutler said.   He was disappointed that an affidavit filed after the public information request was made was used to determine that the information sought should be confidential.

Buglione said she did not try to determine whether the Gaming Control Board’s monitoring of Foxwoods’ progress toward opening a casino constitutes a non-criminal investigation. Since the documents are already exempt under state gaming law, it was not necessary to do so, she wrote.

The documents at the center of the fight were filed by Foxwoods in October. They are but the first in a series of monthly reports in which the PBCB told them 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. Foxwoods 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.

Casino-Free Philadelphia and The Chinatown Preservation Alliance wanted the documents in order to see if Foxwoods was meeting the conditions set by the board, and if the board was exercising its authority to be sure the conditions were being met.

The Gaming Control Board’s Miller-Tshudy argued that it was the board’s duty, not the public’s to monitor compliance.

Foxwoods has continued to file monthly reports (although it did not file the site plan information the board wanted to see in December, and instead asked for an extension that the board has yet to vote on). While the current document fight relates only to the October filing, Cutler and Boni had hoped to use a win to set a precedent that would result in the release of subsequent filings.

Changes in the gaming law that are part of a new law Rendell was expected to sign Thursday could make that more difficult, Boni said.

The current law says that information submitted by a casino applicant or obtained by the Gaming Control Board as part of a background investigation is confidential. The new legislation extends confidentiality so that information submitted by a license holder, or obtained by the Gaming Control Board as part of any type of investigation, is confidential.

Boni said that if he and Cutler appeal, they would ask that the Court use the version of the law in place at the time of the dispute to make a determination. Regardless of what the court decided, the new version of the law would certainly apply in efforts to get later documents, he said. “The law is now reformed to be more secretive,” Boni said. So while he finds the reasoning used by the Office of Open Records faulty, he said his “real beef” is with the legislature and Rendell.

A call to the Office of Open Records was referred to Deputy Director Barry Fox, who could not be reached for comment Thursday.

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