List of Patrons Involuntarily Excluded from NYS Gaming Facilities

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

The most recent version of the Commission's Patron Exclusion List pursuant to 9 CRR-NY 5327 ("Excluded Persons").

To be clear: this is not the Self-Exclusion List of persons who ask to be excluded for reasons of compulsive gambling which is protected for reasons of privacy.

This request for the list of persons whom the Commission considers to fit one of the following categories :

* persons who are career or professional offenders;
* persons who have a known relationship or connection with a career or professional offender;
* persons convicted of a gambling offense under the laws of any state or the United States that is punishable by more than 12 months in a state prison;
* persons with a notorious or unsavory reputation that would adversely affect public confidence and trust that casino gaming is free from criminal or corruptive elements
* perons who pose, by presence in a gaming facility, the potential of injurious threat to the interests of New York State

I reiterate, from a previous FOIL, that this list is explicitly meant for the public, as the regulation states, "The commission shall maintain such list on the commission’s website."

Further, the common practice in legalized gambling jurisdictions is to publish their Excluded Persons list (see also, New Jersey Attorney General, Division of Gaming Enforcement, https://www.nj.gov/oag/ge/exclusion/exclusion_photoindex/photoindex.htm; Nevada Gaming Control Board Excluded Person List, https://gaming.nv.gov/index.aspx?page=72).

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

T. McElwee

Ms. Alois, et al.:

My thanks for Ms. Alois's reply.

In riposte: the records I am seeking are, in the plain language of the Commission's own published rules, entirely meant for the public.

In the interest of perfecting the request: I concede that it may be the case that the New York State Gaming Commission has agreed to accept other states' exclusion lists (such as the list maintained by New Jersey Division of Gaming Enforcement, published at https://www.nj.gov/oag/ge/exclusion/exclusion_list/exclude_index.htm), or indeed that the state may use a list furnished by a private entity (such as the Nevada-based Griffin Investigations, publisher of the so-called "Griffin Book" or "Black Book" of undesirable casino customers).

Regardless of the source, the Commission is obligated under its rules to maintain, and indeed publish, a list of persons to be excluded or ejected from regulated gaming facilities. This is in line with New York State's Racing, Pari-Mutuel Wagering and Breeding Law; specifically, with Section 1342, "Required exclusion of certain persons") which grants the Commission the right to sanction a licensed gaming facility for "[failure] to exclude or eject from the premises of any licensed gaming facility any person placed by the commission on the list of persons to be excluded or ejected."

For the Records Access Officer and Commission's consideration, I would like to cite the precedential opinion of Chief Judge Lawrence H. Cooke in Matter of Fink v. Lefkowitz, which favors disclosure of the records I am requesting:

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements." ((Matter of Fink v. Lefkowitz 47 NY 2d 567 - NY: Court of Appeals 1979)

In sum, I believe release of any list used by the Commission to demand gaming facilities to be excluded or ejected is well within my right as a membert of the public under FOIL, and is consistent with the Commission's own interest in regulating gaming facilities.

My thanks for your time and consideration.

Sincerely,
T. McElwee