Michael McAndrew v. Cannabis Control Commission (SPR 20250328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2025 SPR25/0328 Michael Bergquist, Esq. Associate General Counsel Cannabis Control Commission 50 Franklin Street Boston, MA 02110 Dear Attorney Bergquist: I have received the petition of Michael J. McAndrew, Esq., of Bulkley, Richardson, and Gelinas, LLP, 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 13, 2025, Attorney McAndrew requested: [1] All documents and/or communications exchanged between or among the Commission … concerning Laboratory Testing for mold, mildew, fungus, and/or mycotoxins in Marijuana Products … from November 1, 2024 to the present[;] [2] All documents and/or communications exchanged between or among the Commission … and any person or entity concerning the meeting that the Commission had with [an identified individual] during the week of November 18, 2024[;] [3] All documents and/or records concerning laboratory testing for mold, mildew, bacteria, and/or Mycotoxins in Marijuana Products… from November 1, 2024 to the present[;] [4] All documents and/or records concerning laboratory testing at ProVerde Laboratories, Inc. d/b/a ProVerde for mold, mildew, bacteria, and/or Mycotoxins in Marijuana Products … from November 1, 2024 to the present[;] [5] All documents and/or records concerning laboratory testing of lot number 1A40A0100000CE9000027155 cultivated by The Heirloom Collective, Inc. d/b/a The Heirloom Collective for mold, mildew, fungus, bacteria, and/or Mycotoxins[;] [6] All documents and/or records concerning laboratory testing of any Marijuana Products … cultivated and/or manufactured by the Heirloom Collective, Inc. d/b/a The Heirloom Collective for mold, mildew, fungus, bacteria, and/or Mycotoxins … from November 1, 2024 to the present[;] 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. SPR25/0328 Page 2 February 5, 2025 [7] All documents and/or records concerning laboratory testing of any Marijuana products … cultivated and/or manufactured by Ascend Mass, LLC d/b/a Ascend Cannabis for mold, mildew, fungus, bacteria, and/or Mycotoxins … from November 1, 2024 to the present. The Commission provided a response on January 24, 2025. Unsatisfied with the response, Attorney McAndrew petitioned this office and this appeal, SPR25/0328, 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 January 24th Responses In its January 24, 2025 response, the Commission informed Attorney McAndrew that his request did not reasonably identify the records sought, and characterized the scope of potentially responsive material as “vast.” Current Appeal In his February 3, 2025 petition to this office, Attorney McAndrew requested that this office require the Commission to “… make a full and complete search of its records, including its email servers, for public records responsive to the Request[.]” Reasonable Description of Records Sought Please be aware, the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record

Michael Bergquist, Esq. SPR25/0328 Page 3 February 5, 2025 sought.” See G. L. c. 66, § 10(a)(i). In a recent case, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” As such, requests that seek “all records relating to…,” “all records concerning…,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Consistent with the decision in Chawla, I find that the language “All documents and/or communications … concerning” and “All documents and/or records concerning” does not satisfy the statutory standard for a request that reasonably describes the public record sought. See Chawla, at 2. Attorney McAndrew may wish to provide clarification regarding the specific records he is seeking. Once Attorney McAndrew has provided the needed clarification, the Commission must provide a response within 10 business days. This office encourages Attorney McAndrew and the Commission to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney McAndrew 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).

Michael Bergquist, Esq. SPR25/0328 Page 4 February 5, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael J. McAndrew, Esq.