Brendan McFeely v. Cannabis Control Commission (SPR 20240008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2024 SPR24/0008 Michael P. Bergquist, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney Bergquist: I have received the petition of Brendan McFeely 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 4, 2023, Mr. McFeely requested the following: [A] copy of the department’s database of marijuana establishments including the agent’s first and last name, the agent’s title, agent’s home address, agent’s phone number, agent’s email address, name of the Marijuana establishment employing the agent, address of establishment, establishment license type and number, and date of application. The Commission responded on October 26, 2023, providing a hyperlink to a responsive “data catalog,” and citing Exemptions (c) and (n) of the Public Records Law for withholding other information. See G. L. c. 4, § 7(26)(c), (n). Unsatisfied with the Commission’s response, Mr. McFeely appealed, and this case 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 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 P. Bergquist, Esq. SPR24/0008 Page 2 January 17, 2024 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. 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 October 26th Response In its October 26, 2023 response, the Commission provides a hyperlink to two “partially responsive” records included on its “data catalog” website. Additionally, the Commission cites Exemptions (c) and (n) of the Public Records Law for withholding “personally identifiable information for Marijuana Establishment Agents.” See G. L. c. 4, § 7(26)(c), (n). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292.

Michael P. Bergquist, Esq. SPR24/0008 Page 3 January 17, 2024 Under Exemption (c), the Commission argues the following: The Supreme Judicial Court (SJC) has also recognized that context matters, that is, “other case-specific relevant factors” can be determinative.... “[T]he same information about a person, such as his name and address, might be protected from disclosure as an unwarranted invasion of privacy in one context and not in another.” Torres v. Attorney Gen., 391 Mass. 1, 9 (1984). Context is especially important in this case. The disclosure of personally identifiable information would constitute an unwarranted invasion of privacy, especially given the context of employment in the Marijuana industry. Individuals may be exposed to risks, including legal jeopardy, impacting one’s reputation, ... not at issue in other industries.... It is also important to note that Marijuana Establishment Agents are employed by the private, not the public, sector. Based on the Commission’s response, it is unclear how the withheld records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Commission did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Commission must clarify these matters. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to

Michael P. Bergquist, Esq. SPR24/0008 Page 4 January 17, 2024 maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the Commission argues the following: The release of personally identifiable information may jeopardize the security of persons and/or buildings within the Commonwealth. Disclosure may inspire or incentivize bad actors to target specific individuals and attempt to gain unlawful access to a licensed premise. This may also jeopardize the public safety of patients, caregivers, consumers, licensees, and registered Agents, who patronize or work therein. The Commission must maintain “security requirements for licensees sufficient to deter and prevent theft and unauthorized entrance into areas containing marijuana.” G.L. c. 94G, § 4(a1⁄2)(xviii). Disclosure may actually encourage theft, reduce the effectiveness of security protocols, and frustrate the purpose of the Commission’s statutory mandate. This would not be in the public interest. Based on the Commission’s response, it is unclear how the withheld information resembles the records listed under Exemption (n). See PETA, at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the Commission has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Commission must clarify these matters. Additionally, it is unclear from the Commission’s response which specific records the Commission intends to withhold. The Commission must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (c) and (n). 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

Michael P. Bergquist, Esq. SPR24/0008 Page 5 January 17, 2024 for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Commission is ordered to provide Mr. McFeely 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: Brendan McFeely