Jonathan Gerhardson v. Cannabis Control Commission (SPR 20230382)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0382 Naitasia V. Hensey, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney DeAngelis: I have received the petition of Jonathan Gerhardson 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 February 6, 2023, Mr. Gerhardson requested, “...all associated documents related to a cannabis facility being built at [an identified location] MA.” The Commission responded on February 14, 2023. Unsatisfied with the response, Mr. Gerhardson petitioned this office and this appeal, SPR23/0382, 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

Naitasia V. Hensey, Esq. SPR23/0382 Page 2 March 10, 2023 The Commission’s February 14th response In its February 14th response, the Commission stated, “[a]ttached please find documentation responsive to your public records request. If you have any further questions, please contact me directly.” Current appeal In his appeal, Mr. Gerhardson advised, “[t]he responsive document ... provided has a key information field related to the Registered Marijuana Dispensary (RMD) status field left blank. Furthermore, a list of pdf documents I believe are responsive to my request are listed beginning on page 7 of the attached PDF I was sent from the CCC were not provided to me.” Based on Mr. Gehardson’s claims, in conjunction with the Commission’s response, it is unclear if the Commission possesses any additional records responsive to his request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Commission must clarify whether additional records exist. Conclusion Accordingly, the Commission is ordered to provide Mr. Gerhardson 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: Jonathan Gerhardson