CCC Sunshine v. Cannabis Control Commission (SPR 20250590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2025 SPR25/0590 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 CCC Sunshine (requestor) 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 February 13, 2025, the requestor sought: [T]he following specific records, covering the period from January 1, 2022, to February 13, 2025: Priority Group 1 (to be produced first): [list of seven individuals] Priority Group 2 (to be produced after Priority Group 1, if necessary): [list of seven more individuals] For each individual listed above, we are requesting: - Individual weekly timesheets or time reports submitted for approval - Records indicating the type of time used (e.g., regular work hours, sick time, vacation time, personal time, or any other leave category) - Any electronic time clock or time tracking system records showing clock-in and clock-out times - Electronic calendar entries from the individual’s official work Outlook calendar or other electronic calendar system used for official business The Commission responded on February 28, 2025, providing a fee estimate. Unsatisfied with the Commission’s response, and objecting to the fees, the requestor petitioned this office, and this appeal, SPR25/0590, was opened as a result. 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. SPR25/0590 Page 2 March 14, 2025 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. Fee Estimates - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Commission’s February 28th Response In its February 28, 2025 response, the Commission provides a fee estimate of $12,400. In support of its fee estimate, an attorney for the Commission explains the following: I used all but one of the individuals in your stated Priority 1 group to create my

Michael Bergquist, Esq. SPR25/0590 Page 3 March 14, 2025 estimate. I indeed identified almost 47,902 calendar records with that subset. Calendars are not stored as a neat PDF, but rather each calendar event is stored as an individual record. If a meeting occurs internally between two folks on your list, therefore there would be two entries for that calendar event. Adjusting the date to January 1, 2022, the results do not significantly change, and I have identified 46,358 and therefore still estimate over 50,000 records once I include the remaining individual from your identified Priority 1 group and any timekeeping records which may be responsive. As I mentioned in my previous letter, to search through over 50,000 records would require at least 500 hours. The public records law authorizes a custodian to charge requestors for costs associated with responding to requests and an agency may require payment of that fee prior to complying with a public records request. Meeting invitations may contain patient information or other information exempt from the public records law which will require careful review for necessary redactions that may be required by G.L. c. 94I or otherwise. The 500 hours account for 5 hours of administrative staff time to compile the records, 470 hours for qualified staff to design a plan to review the records and, as necessary, redact or otherwise segregate each record, and 25 hours for an attorney to then review and further segregate the materials as necessary, all at a rate of $25 per hour. Taking into account that the Commission must waive the first four hours of labor, the estimate is $12,400. Using one employee committing two hours per day to this task, the Commission expects a full production would be completed no earlier than February 2026. I note that at this time, the Commission has not chosen to petition the Supervisor of Records to charge a higher rate because the Commission does have any qualified staff earning $25 or less. [sic] With regard to the timekeeping documents. It has been my understanding that although Commission employees can view the records in the HR/CMS system maintained by the Human Resources Division of the Commonwealth, staff do not have the ability to extract those records. The Commission would further investigate the feasibility of downloading the requested records as part of this request. Current Appeal In the appeal petition, the requestor argues the following: The Commission’s claim of identifying “47,902 calendar records” for just a subset of six individuals over three years defies mathematical reality. This would amount to approximately 10.6 calendar entries per person per workday—a volume that would make these public officials the most scheduled bureaucrats in Commonwealth history. Their explanation about duplicate entries for internal meetings cannot possibly justify this inflated volume.

Michael Bergquist, Esq. SPR25/0590 Page 4 March 14, 2025 . . . The Commission’s claim that staff “do not have the ability to extract” timekeeping records from HR/CMS insults the intelligence of anyone familiar with state operations. As an independent agency responsible for payroll processing, they must access these records regularly to process payroll, track leave, and manage employee time. The suggestion that they would need to “investigate the feasibility of downloading” these records is either deliberately deceptive or reveals shocking administrative incompetence. . . . The Commission’s suggestion that calendar entries may contain patient information requiring protection under G.L. c. 94I is perhaps the most transparent pretext for delay. Calendar entries—particularly their subject lines—do not reasonably contain protected patient information. Commissioners are regulators, not healthcare providers. The notion that reviewing a calendar subject line requires special “qualified staff” is bureaucratic theater at its finest. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and

Michael Bergquist, Esq. SPR25/0590 Page 5 March 14, 2025 (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages the requestor and the Commission to communicate directly in order to facilitate providing records more efficiently and affordably. The requestor may consider narrowing the scope of the request to enable the Commission to provide the records more efficiently and affordably. The Commission must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (a 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 If outstanding issues remain after the requestor and the Commission communicate further as described above, the requestor may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine