Colman Herman v. Cannabis Control Commission (SPR 20232764)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2023 SPR23/2764 Michael Bergquist, Esq. Associate General Counsel Cannabis Control Commission 2 Washington Square Worcester, MA 01604 Dear Attorney Bergquist: I have received the petition of Colman M. Herman 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 11, 2023, Mr. Herman requested “a copy of the invoices submitted by the outside consultants who were hired by the State Treasury and/or the Cannabis Control Commission to investigate [a named individual]’s work at the commission.” On October 30, 2023, after speaking to a representative of the Commission, Mr. Herman submitted a new request for “invoices from Morgan, Brown & Joy (MBJ) for investigative work performed by others that were hired by MBJ.” The Commission provided a response on November 13, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/2764, 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

Michael Bergquist, Esq. SPR23/2764 Page 2 November 29, 2023 Current appeal In his appeal, Mr. Herman states that “this record is incomplete and that there may be other responsive records.” Mr. Herman further argues that “[t]here is, for example, no itemization other than ‘General Matters’” and that “[t]here is nothing about the number of hours worked by the lawyers, their hourly rate, their names, and so on.” The Commission’s November 13th response In its November 13, 2023 response, the Commission provided Mr. Herman with an invoice from the law firm of Morgan, Brown & Joy. Unclear if additional records exist Based on the Commission’s response and Mr. Herman’s appeal, it is unclear if the Commission possesses additional records responsive to the request. Specifically, the Commission must clarify if it possesses a record that reflects “the number of hours worked by the lawyers, their hourly rate, [and] their names” as described in Mr. Herman’s appeal. 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). 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. Herman 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman