CCC Sunshine v. Cannabis Control Commission (SPR 20251173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1173 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 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 On March 28, 2025, the requestor narrowed the request as follows: [W]e narrow our request to Commissioners’ timesheets and calendars from 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. SPR25/1173 Page 2 May 13, 2025 January 1, 2022, to January 1, 2023—still including timesheets for the Commissioners and staff ([a list of named individuals]). Previous Appeals This request was the subject of previous appeals. See SPR25/0590 Determination of the Supervisor of Records (March 14, 2025) and SPR25/0864 Determination of the Supervisor of Records (April 14, 2025). In my April 14th determination, I found that given the March 28th modification to the request, it was unnecessary to address the issues raised in the requestor’s appeal petition, and I ordered the Commission to provide a response to the modified March 28th request. Subsequently, on April 28, 2025, the Commission provided a response, including a revised fee estimate. Unsatisfied with the Commission’s response, and objecting to the fees, the requestor petitioned this office, and this appeal, SPR25/1173, 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

Philip Schreffler, Esq. SPR25/1173 Page 3 May 13, 2025 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 April 28th Response In its April 28, 2025 response, the Commission provided numerous responsive records, and a representative for the Commission provided the following fee estimate for the remaining records: I am in the process of gathering the calendar entries you seek. Please note, given the number of documents sought, and the fact their nature may include privileged information, patient information, or otherwise protected information, some may require redaction. Naturally this will require a review of the documents before production. Be advised that the public records law permits a custodian of public records to charge requestors for certain costs associated with responding to public records requests. See G.L. c. 66, § 10(d) and 950 CMR 32.07. We may require payment of that fee prior to complying with a public records request. G.L. c. 66, § 10(a). As we must conduct a review under G.L. c. 94I § 3 to ensure no patient information is released prior to consideration of other exemptions, no petition to the Supervisor of Records is required to assess this fee under G.L. c. 66, § 10. I have identified a few thousand calendar entries that may be responsive to your request. Assuming a reasonable rate of review and subsequent redaction of records, I estimate that this project will require 70 hours to complete at $25 per hour. As the first four hours are free of charge, the total to cover expenses due amount to $1,650.00. Current Appeal In the appeal petition, the requestor argues the following: The $1,650 fee (70 hours at $25/hour, less 4 free hours) is an execrable outrage. G.L. c. 66, § 10(d)(ii) limits fees to the lowest-paid staff rate, but the Commission provides no proof $25/hour complies. We sought a waiver on March 14, based on the public interest in agency accountability, which they’ve ignored. . . . We implore the Supervisor to order the Commission to produce the Commissioners’ Outlook calendars in weekly format for January 1, 2022, to January 1, 2023, without fees or further delay.

Philip Schreffler, Esq. SPR25/1173 Page 4 May 13, 2025 In an email to this office on May 1, 2025, an attorney for the Commission explains, among other things, the following: In a brief search of the record, I have identified two instances where a patient was either identified or could easily be identified. Even if these are the only two instances, a full review is now required to ensure there are no repeat instances. At the time the estimate was provided to the requestor, approximately 89,000 potential documents were identified for review in the Commission’s e-discovery system for review that formed calendar entries or directly impacted the creation of said entries. It was on this basis that I estimated (conservatively) 15 hours per commissioner, rounded down to the nearest ten and produced a fee estimate according to that assessment. . . . I have since worked closely with the IT department and reworked the data and internal control processes into a more easily used format. This was not an intuitive process, and my original estimate remains accurate with the information I had at the time it was made. . . . I stand by my reasoning, and the good faith in which it was based. . . . I now anticipate the production of documents within 15 business days, with no need for a fee. As this appeal was opened based on the Commission’s April 28th fee estimate, and the Commission now intends to provide the responsive records without assessing a fee, I find it unnecessary to address the issues raised in this appeal. Conclusion Accordingly, the Commission is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. The requestor may appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine