Holly Hawkes-Radon v. Cannabis Control Commission (SPR 20222402)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2402 Alycia DeAngelis, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney DeAngelis: I have received the petition of Holly Hawkes-Radon appealing the response of the Cannabis Control Commission (Commission/CCC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2022, Ms. Hawkes-Radon requested, “… records for the Holistic Industries … [for] inspections done by Enviro Med [for] June 28th to July 3rd 2021.” The Commission responded on October 19, 2022. Unsatisfied with the response, Ms. Hawkes-Radon petitioned this office and this appeal, SPR22/2402, 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. 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

Alycia DeAngelis, Esq. SPR22/2402 Page 2 November 7, 2022 The Commission’s October 19th response In its October 19, 2022 response, the Commission cited Exemption (f) of the Public Records Law to withhold the requested records. 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 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 response, the Commission asserts that “… the records which are in the Commission’s custody are considered investigatory records and are withheld from disclosure under G. L. c. 4, § 7 (26)(f) …” Although the Commission claims that the records are “investigatory records” it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear from the Commission’s response whether the records pertain to an ongoing investigation, or contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Commission did not demonstrate how disclosure of any portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Alycia DeAngelis, Esq. SPR22/2402 Page 3 November 7, 2022 Conclusion Accordingly, the Commission is ordered to provide Ms. Hawkes-Radon with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Holly Hawkes-Radon