Yasha Kahn v. Cannabis Control Commission (SPR 20242094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2094 Michael Bergquist, Esq. General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney Bergquist: I have received the petition of Yasha Kahn 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 June 14, 2023, Mr. Kahn requested the following: [T]esting data shared by cannabis testing labs with the CCC. From the “raw plant Material” tab of the “MA CSV File Test Batch Templates 23.1.xlsx” template that METRC has shared with all labs that is used by labs to upload data to METRC, please provide the following columns: A. Date B. METRC ID / METRC tag C. Analyte/test ID D. Result E. Disposition F. Notes For the following rows: Total Yeast and Mold (CFU/g) Raw Plant Material THC (%) Raw Plant Material THCA (%) Raw Plant Material For the date range: January 1, 2019 to June 14th, 2023[.] On April 30, 2024, and May 26, 2024, Mr. Kahn modified his request by adding additional categories and expanding the date range. 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. SPR24/2094 Page 2 August 6, 2024 Previous Appeal This request was the subject of a previous appeal. See SPR23/1579 Determination of the Supervisor of Records (July 24, 2023) and SPR24/1813 Determination of the Supervisor of Records (July 5, 2024). In my July 5th determination, I closed SPR24/1813 in light of the Commission’s intent to provide a supplemental response. Subsequently, the Commission responded on July 19, 2024. Unsatisfied with the Commission’s response, Mr. Kahn petitioned this office, and this appeal, SPR24/2094, 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. 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. Current Appeal In his appeal petition, Mr. Kahn contends the following: I requested data and the data was not provided to me in full. The CCC stopped responding to the request after I presented findings to their team. . . . I believe that others have received data from the CCC since March 8th that apply directly to my request. I believe that I being singled out. The data I have received doesn’t include all fields requested, and doesn’t include all date ranges requested. The Commission’s July 19th Response In its July 19, 2024 response, the Commission explains the following:

Michael Bergquist, Esq. SPR24/2094 Page 3 August 6, 2024 [T]he Commission spent upwards of fifty hours working on the request and notably did not charge a fee, all in the interest of transparency. The data was provided to you in three parts on October 12, 2023, November 17, 2023, and January 12, 2024. Despite the obvious toll that this information gathering has exacted upon the Commission, you have since expanded the scope of your request to include a larger range of dates and the Commission has obliged and provided the data on March 8, [2024]. . . . The Commission has provided all of the requested records. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents Please be 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). Additionally, 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). However, 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). Conclusion Where the Commission confirmed that it does not possess additional records responsive to Mr. Kahn’s request, I will now consider this administrative appeal closed. If Mr. Kahn is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Yasha Kahn