Shannon O'Brien v. Cannabis Control Commission (SPR 20243293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2024 SPR24/3293 Michael 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 Shannon P. O’Brien appealing the response of the Cannabis Control Commission (Commission/CCC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 16, 2024, Ms. O’Brien requested the following records: [1] All documents and communications (including but not limited to emails, text messages, Microsoft Teams messages, Slack messages, etc.) sent between [identified individuals] at the State Treasurer’s office between June 1, 2023 and November 1, 2023. [2] All documents and communications (including but not limited to emails, text messages, Microsoft Teams messages, Slack messages etc.) sent between [identified individuals] at the State Treasurer’s office between June 1, 2023 and October 1, 2023. [3] All disclosure filings submitted by former Executive Director . . . relevant to his duty to disclose conflicts of interest or the appearance of a conflict of interest pursuant G.L. 268 B. This includes dated disclosure filings [an identified individual] sent to the Cannabis Control Commissioners, his appointing authority, relevant to any search for employment he conducted in 2022 or 2023. Further this request seeks any dated disclosure filing [an identified individual] made which reports the existence any conflict or appearance of conflict in reference to any cannabis licensee. This includes but is not limited to, persons involved with cannabis retailer Greatest Hits LLC or DMA Holdings between January 2020 and September 2023. 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. SPR24/3293 Page 2 December 20, 2024 [4] Minutes and access to recordings made during the Cannabis Commission Executive Session held April 24, 2023. [An identified individual] had previously stated these would be available in February or March of 2024. I believe these minutes are being illegally withheld from the public as they contain information that would support the legal appeal of my suspension. The Commission responded on October 30, 2024 and November 15, 2024. Unsatisfied with the responses, Ms. O’Brien petitioned this office and this appeal, SPR24/3293, 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. The Commission’s October 30th and November 15th responses In the Commission’s October 30, 2024 and November 15, 2024 responses, the Commission provided certain requested records, withheld one record, and redacted portions of the video pursuant to Exemption (c) of the Public Records Law. This office has reviewed the Supreme Judicial Court’s docket and verified that the civil litigation, relating to this matter was transferred to the Trial Court and is active and ongoing in the Suffolk Superior Court. See Shannon O’Brien vs. Deborah Goldberg, Docket Number 2484CV03009; see also Shannon O’Brien vs. Deborah Goldberg, Supreme Judicial Court Docket Number SJ-2024-0405.

Michael Bergquist, Esq. SPR24/3293 Page 3 December 20, 2024 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (c). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Shannon P. O’Brien