Peter A. Ianuzzi, Jr. v. Cannabis Control Commission (SPR 20241287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 7, 2024 SPR24/1287 Michael P. Bergquist, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney Carter: I have received the petition of Peter 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 January 15, 2024, Mr. Ianuzzi requested: … a copy of all METRC data for cannabinoid potency and microbial testing for raw cannabis plant material for 2022 and 2023 as submitted to the State’s METRC seed to sale tracking system. For each sample in the database, we request the percent of each primary cannabinoid, including THC, THCA and Total THC, as well as any microbial data for: total aerobic, total coliform, total bile-tolerant gram-negative bacteria, and total yeast and mold. We request that the data query be provided in a digital format via a CSV export from the METRC database… to include METRC data fields for ProductCategoryName, Label, Strain, TestTypeName, TestResultLevel, TestingLab, TestPerformed Date, and Comment.... Under CC direction, a “0” is to be entered as the Test Result when there are no microbial (or cannabinoids) constituents detected, but also when that test is not performed. For the latter case, this is to be notated in the comment field. Omission of the additional microbial contaminants and comment field for data released prevents evaluation of the total PASS/FAIL rates for microbial contaminants, and will result in erroneously skewed cannabinoid averages when evaluating all of the cannabinoid profile data included in the data set. 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. SPR24/1287 Page 2 May 7, 2024 The Commission responded on January 15, 2024 and February 9, 2024. Unsatisfied with the Commission’s responses, Mr. Ianuzzi petitioned this office and this appeal, SPR24/1287, 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. 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. 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 January 15th and February 9th responses In its January 15, 2024 response, the Commission acknowledged receipt of the request. In its February 9, 2024 response, the Commission asserted, “… [w]e did send your request over to the IT team when it came in and have been awaiting results. I was in touch with them this morning and they informed me their hope is to have the data ready to send to you by next Friday….” Current Appeal Mr. Ianuzzi indicated in his appeal that the Commission has yet to provide responsive records. Timeliness in providing records 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:

Michael P. Bergquist, Esq. SPR24/1287 Page 3 May 7, 2024 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). Where it appears Mr. Ianuzzi submitted his request on January 15, 2024 it is unclear why the Commission has not provided the responsive records. 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Commission is ordered to provide Mr. Ianuzzi 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. Mr. Ianuzzi may appeal the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Peter Ianuzzi, Jr.