Michael McAndrew v. Cannabis Control Commission (SPR 20230997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/0997 Andrew Carter, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney Carter: I have received the petition of Michael McAndrew, Esq., of Bulkley, Richardson and Gelinas, LLP, appealing the response of the Cannabis Control Commission (Commission/CCC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 25, 2023, Attorney McAndrew requested the following records (First Request): 1. The drafting, evaluation, interpretation and/or discussion relating to Advance Contactless Order Fulfillment as contemplated by 935 CMR § 500.140(9)(a)-(f) and 935 CMR § 501.140(9)(a)-(f). 2. The review, discussion, evaluation and recommendation for approval of the Theory Wellness facility in Chicopee, MA. 3. Any review, discussion, evaluation or recommendation of any applications for all Marijuana Retailer licenses and all Medical Marijuana Treatment Center licenses which included a proposed ‘drive-thru’ or other Advance Contactless Order Fulfillment options. On April 13, 2023, following a meeting with the Commission, Attorney McAndrew appeared to modify the request as follows (Second Request): [1.] All documents related to the discussion, evaluation, and/or review of Marijuana Retailer licenses and/or Medical Marijuana Treatment Center licenses which included a proposed drive-thru and/or other Advance Contactless Order Fulfillment options; [2.] A copy of any written policy related to drive-thrus at medical and/or retail facilities; [3.] All documents related to the drafting, evaluation, discussion, and/or interpretation of 935 CMR § 500.140(9)(a)-(f) and/or 935 CMR § 501.140(9)(a)-(f) that reference the positioning of security cameras, the area that must be covered by security cameras, the area of the sales floor, and/or ingress/egress to the sales floor; 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

Andrew Carter, Esq. SPR23/0997 Page 2 May 25, 2023 [4.] All documents related to the drafting, evaluation, discussion, and/or interpretation of The Administrative Order Allowing Curbside Operations for Medical Marijuana Treatment Centers that reference the positioning of security cameras, the area that must be covered by security cameras, the area of the sales floor, and/or ingress and/or egress to the sales floor; and [5.] All documents related to the discussion, evaluation, and/or review of any adult-use or medical licensees who had drive-thrus approved under the Administrative Order Allowing Curbside Operations for Medical Marijuana Treatment Centers. The Commission responded on February 13, 2023; March 27, 2023; April 11, 2023 and May 3, 2023. Unsatisfied with the responses, Attorney McAndrew petitioned this office and this appeal, SPR23/0997, 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. The Commission’s responses In its February 13, 2023 response, the Commission stated: l. We request more time as this is an interdepartmental matter and requires coordination across several departments to acquire what has been requested, plus the time to make sure the record is responsive to the request. Extension requested to February 23, 2022. 2. For matters related to Theory Wellness of Chicopee, MA. Please see the attachment, which contains licensing information on the entity considered for approval. Any discussion regarding Theory Wellness can be found in the January 16, 2020 Public Meeting presentation under Staff Recommendation of Final Licenses ... 3. Please narrow this request, as it is quite broad and we estimate the results would take more than a week's worth of work hours to pull and sort through. If we were to charge for such a request, it would amount to a minimum of $1,000.00. In its March 27, 2023 response, the Commission requested a meeting to discuss the First Request dated January 25th. In its April 11, 2023 response, the Commission produced further

Andrew Carter, Esq. SPR23/0997 Page 3 May 25, 2023 documents related to Theory Wellness' facility. On April 13, 2023, the Commission asked Attorney McAndrew to provide search terms and/or other parameters, necessary to conduct a search and did not received a response. On May 3, 2023, the Commission advised, “[w]e have not identified additional responsive records beyond what was previously provided.” Current appeal In his appeal, Attorney McAndrew advised that they have repeatedly attempted “to specifically identify the documents it seeks, the CCC has failed and refused to allow it to inspect relevant public records. The First and Second Requests seek documents related to the drafting, evaluation, and passage of numerous regulations and orders….It stretches the imagination to believe that there are no public records, such as emails and other internal communications, related to these major agency actions.” Provide timeframe G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). I encourage Attorney McAndrew and the Commission to communicate in order to facilitate producing records efficiently and affordably. Attorney McAndrew may wish to include applicable time periods, search terms or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Commission must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Whereas Attorney McAndrew’s modified request was submitted on April 13, 2023, the Commission has not met its burden in responding to the request in accordance with G. L. c. 66, §

Andrew Carter, Esq. SPR23/0997 Page 4 May 25, 2023 10(b)(vi). Consequently, I find the Commission must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Commission must provide responsive records on a rolling basis. Conclusion Accordingly, the Commission is ordered to provide Attorney McAndrew with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Attorney McAndrew may appeal the substantive nature of the Commission’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael McAndrew, Esq.