Peter A. Ianuzzi, Jr. v. Cannabis Control Commission (SPR 20232652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2023 SPR23/2652 Andrew Carter Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Mr. Carter: I have received the petition of Peter A. Ianuzzi, Jr. appealing the response of the Cannabis Control Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 14, 2023, Mr. Ianuzzi requested “a copy of all METRC data for cannabinoid potency and microbial testing for raw cannabis plant material for the last 3 years, as submitted to the State’s METRC seed to sale tracking system,” and included a list and chart of categories of data he seeks. The Commission responded multiple times from October 16, 2023 through November 1, 2023, indicating it intended to provide responsive records. Claiming not to have received responsive records, Mr. Ianuzzi appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Commission provided a supplemental response to Mr. Ianuzzi on November 6, 2023. 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. Att’y 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

Andrew Carter SPR23/2652 Page 2 November 17, 2023 If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission’s November 6th Response In its November 6, 2023 response, the Commission provides a link to a data file and explains the following: [T]his is an initial set of data for the period of April 1, 2021-Dec 31, 2021. Metrc made a configuration change in how testing data was collected and reported in March 2021 which requires additional work and extraction and as noted by [the Commission RAO] data prior to January 2021 was under audit. [The Commission] will continue to work on the additional data for 2022 as well as prior to April 2021. [The Commission] will be ultimately posting this data on [its] OpenData site to make future updates there on a regular basis. In an earlier October 18, 2023 response, the Commission also states the following: By way of background, the dataset is from 2021. [The Commission] started with that year because the prior period was under audit by the State Auditor. Now that that review has closed, [the Commission] anticipate[s] developing a schedule to produce other years. In a November 8, 2023 email to this office, Mr. Ianuzzi contends that he “specifically asked for cannabis testing data for the past (3) years and the fact that a state agency can only produce data for ½ of 2021 is very concerning.” Possession, Custody, or Control The Commission is advised that 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). Based on the Commission’s response, it is unclear if the Commission possesses additional records responsive to Mr. Ianuzzi’s request. If the Commission does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or

Andrew Carter SPR23/2652 Page 3 November 17, 2023 redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Commission is ordered to provide Mr. Ianuzzi with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Peter A. Ianuzzi, Jr.