CCC Sunshine v. Cannabis Control Commission (SPR 20250864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2025 SPR25/0864 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 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. SPR25/0864 Page 2 April 14, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/0590 Determination of the Supervisor of Records (March 14, 2025). In my March 14th determination, I encouraged the requestor and the Commission to communicate directly in order to facilitate providing records more efficiently and affordably. Subsequently, the requestor modified the scope of the request on March 14, 2025, and on March 28, 2025, the Commission provided a revised fee estimate and suggested a further modification to the request. Unsatisfied with the Commission’s response, and objecting to the fees, the requestor petitioned this office, and this appeal, SPR25/0864, 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. 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.

Michael Bergquist, Esq. SPR25/0864 Page 3 April 14, 2025 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 March 28th Fee Estimate In its March 28, 2025 response, the Commission provides the following fee estimate and suggestions for modification of the request: After reviewing your request as written, the Commission maintains that a fee of $12,400 would be required to fulfill the request at the $25/hr rate authorized by statute. However, the Commission took note from a recent response to the Supervisor’s Office that you seek only subject lines of the calendar invitations. With this information in mind, the Commission makes the following suggestion for narrowing the scope of the request: 1. A spreadsheet of the subject lines of meetings found in Commissioner’s calendars. 2. Eliminate the request for timesheets to lessen the amount of required fees. The Commission is aware that you have requested timesheet records regarding Commission employees from the state’s Human Resources Division. . . . The Commission may be able to fulfill that request using only 10 hours of staff time to review the records for exemptions to the public records law, including patient information required to remain confidential pursuant to Chapter 94I of the General Laws. Such work would require a fee of $150 equal to 10 x $25 ($250) less the four hours of time spent without charging a fee (4 x $25 = $100). This time also excludes the time spent on the series of requests that you have submitted to the Commission. . . . Otherwise, if you can provide keywords or other information that would help to identify records you’d like to request, I can suggest a more tailored approach that may eliminate the need for a fee. Current Appeal In the March 28, 2025 appeal petition, among other things, the requestor states the following: Your proposal to substitute a spreadsheet of subject lines for the Commissioners’ Outlook calendars in weekly format, requested on March 14, 2025 (received March 17), is wholly deficient. . . . The $150 fee—10 hours at $25/hour, less 4 waived hours—is indefensible, particularly your reliance on G.L. c. 94I patient data exemptions. This claim is

Michael Bergquist, Esq. SPR25/0864 Page 4 April 14, 2025 absurd on its face. Commissioners, as regulators, do not maintain access to patient information; their role does not encompass clinical data management. Moreover, Outlook calendars—accessible to staff and synced across systems—should never house “individually identifiable health information” as defined by G.L. c. 94I, § 2. Subject lines like “Budget Review” or timesheets logging hours bear no trace of such data. . . . In a show of good faith, we narrow our request to Commissioners’ timesheets and calendars from January 1, 2022, to January 1, 2023—still including timesheets for the Commissioners and staff (Collins, Hilton-Creek, Sinclair, Carter, Johnson, Dube). This reduction, cutting over two years from our original scope, reflects a willingness to cooperate that you have not reciprocated. Given the modification to the original request included in the requestor’s appeal petition, I find it unnecessary to address the issues raised in this appeal at this time. Conclusion Accordingly, the Commission is ordered to provide the requestor with a response to the modified March 28th request in a manner consistent with the Public Records Law and its Regulations within ten business days. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. If issues remain unresolved, the requestor may appeal the substantive nature of the Commission’s response to the modified request within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine (requestor)