Yasha Kahn v. Cannabis Control Commission (SPR 20250329)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2025 SPR25/0329 Michael Bergquist, Esq. Associate General Counsel Cannabis Control Commission 50 Franklin Street Boston, MA 02110 Dear Attorney Bergquist: I have received the petition of Yasha Kahn, of MCR Labs, LLC, 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 January 9, 2025, Mr. Kahn requested “… data shared by cannabis testing labs with the CCC …” for the period January 1, 2019 to January 9, 2024. Mr. Kahn identified nine columns and twenty-one rows he was seeking in a particular spreadsheet. The Commission provided a response on January 24, 2025. Unsatisfied with the response, Mr. Kahn petitioned this office and this appeal, SPR25/0329, 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. 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. SPR25/0329 Page 2 February 7, 2025 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 Response In its January 24, 2025 response, the Commission stated: Your request does not reasonably identify the records sought. Although the Commission has done its best to respond to your requests that include references to this particular spreadsheet, in this case, it would be impossible for the Commission to determine which records are responsive to your request. Current Appeal In his February 3, 2025 petition to this office, Mr. Kahn contends that the Commission has previously fulfilled similar requests, as have analogous agencies in other jurisdictions. In a February 5, 2025 telephone conversation with this office, the Commission stated that the responsive records were directly related to pending litigation. This office has reviewed the trial court’s docket and confirmed that the case is active and ongoing in Suffolk Superior Court. See MCR Labs, LLC v. Analytics Labs, LLC (Superior Court Docket No. 2584CV00260). 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. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). 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: Yasha Kahn