William Gildea v. Cannabis Control Commission (SPR 20251070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2025 SPR25/1070 Philip Schreffler, Esq. Associate General Counsel Cannabis Control Commission Union Station 2 Washington Square Worcester, MA 01604 Dear Attorney Schreffler: I have received the petition of William Gildea, Esq., of Todd & Weld, 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 29, 2025, Attorney Gildea requested, “[a]ll settlement agreements and/or other agreements concerning the separation of employment of any employee(s) or commissioner(s) from the Cannabis Control Commission since September 1, 2022.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0718 Determination of the Supervisor of Records (April 2, 2025). In my April 2nd determination, I learned that the Commission was to provide a further response to Attorney Gildea. The Commission responded on April 16, 2025. Unsatisfied with the response, Attorney Gildea petitioned this office and this appeal, SPR25/1070, 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). 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

Philip Schreffler, Esq. SPR25/1070 Page 2 May 1, 2025 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 April 16th response In its April 16, 2025 response, the Commission cited Exemption (c) in support of the redactions made to the requested records. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal

Philip Schreffler, Esq. SPR25/1070 Page 3 May 1, 2025 sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its response, the Commission opined, “...personnel and personal information have been redacted from the responsive records in accordance with exemption (c) of the public records law, including names and other information that would make it possible to identify such personnel or personal information.” The Commission further stated, ... in this case, the disclosure of a separation agreement is indeed very likely to result in personal embarrassment. Next, the materials contain information related to employment information and employment status which are intimate details themselves, but are also likely to impact reputation, an enumerated intimate detail in case law. Last, the information is not available elsewhere because the documents are personnel records of the Commission. Each of the three factors weighs heavily in favor of preventing disclosure. However, if we consider the public interest in disclosing information in the documents, the public’s interest is served mostly by the information that was not redacted, which is the monetary amounts and the nature of the agreements the Commission has entered into. Disclosing information which would identify an employee “will in fact undermine the agency’s ability to resolve claims without expensive litigation: arguably, there is a public interest in promoting such out of court resolution.” Globe Newspaper Co. v. Executive Office of Admin. and Finance, 28 Mass.L.Rptr. 499 (2011). Furthermore, the Commission understands this request to be submitted on behalf of your [identified] client, who is engaged in litigation with the State Treasurer (2484CV03009 O’Brien, Shannon vs. Deborah Goldberg Treasurer and Receiver General of the Commonwealth of Massachusetts). Based on established pattern of practice, [an identified individual] has at a minimum, carelessly, but perhaps

Philip Schreffler, Esq. SPR25/1070 Page 4 May 1, 2025 purposely, released the personnel information of Commission employees into the public domain, likely in violation of state law, including M.G.L. Chapter 268A, Section 23(c)(2). For this reason, in addition to all the foregoing, the Commission stands by and affirms its determination that disclosure of the records beyond the redacted versions previously provided to you would not be in the public interest. In camera inspection In order to facilitate a determination as to the applicability of the Commission’s claims to redact portions of the records under Exemption (c) of the Public Records Law, the Commission must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Commission is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Philip Schreffler, Esq. SPR25/1070 Page 5 May 1, 2025 Sincerely, Manza Arthur Supervisor of Records cc: William Gildea, Esq.