CCC Sunshine v. Cannabis Control Commission (SPR 20251436)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2025 SPR25/1436 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. SPR25/1436 Page 2 June 5, 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); SPR25/0864 Determination of the Supervisor of Records (April 14, 2025) and SPR25/1173 Determination of the Supervisor of Records (May 13, 2025). In my May 13th determination, I found that where the Commission intended to provide records without assessing a fee, it was unnecessary to address issues regarding the Commission’s April 28, 2025 fee estimate. Subsequently, the Commission responded on May 21, 2025. Unsatisfied with the Commission’s response, the requestor petitioned this office, and this appeal, SPR25/1436, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to this office and the requestor on May 22, 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. Current Appeal In the appeal petition, and in subsequent emails to this office, the requestor argues among other things, that “entire weeks are redacted across these Commissioners’ records, leaving us in the dark about their activities.” The requestor also contends that “inclusion of events on a public official’s calendar, particularly those tied to official duties, does not typically constitute an unwarranted invasion of privacy under Exemption (c).” The requestor also asks for “clarification from the Commission regarding any misattribution of [the] Commissioner[]’s calendar for the period prior to her appointment...”

Philip Schreffler, Esq. SPR25/1436 Page 3 June 5, 2025 The requestor asks this office to “order the Commission to release calendars with minimal redactions or provide a detailed explanation per G.L. c. 66, § 10(b)(iv).” Further, the requestor asks this office to “find the Commission’s redactions violate the Public Records Law if over-applying Exemption (c).” The Commission’s May 21st and May 22nd Responses In its May 21, 2025 response, the Commission provides numerous responsive records in redacted form, and states that the records are redacted pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). In its May 22, 2025 response, the Commission elaborates on its claims under Exemption (c) for redacting the records. Exemption (c) Exemption (c) applies to: 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). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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.

Philip Schreffler, Esq. SPR25/1436 Page 4 June 5, 2025 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 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). When analyzing a privacy claim, there is 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 May 21st response, the Commission provides numerous records in redacted form, and states that “redactions have been made pursuant to Exemption (c) of the Public Records Law which authorizes a Records Access Officer to withhold personal information, the disclosure of which would constitute an unwarranted invasion of privacy.” In its May 22nd response, the Commission further explains the following: First, there is not a single week that is ‘completely redacted’. This allegation, even the weeks that Sunshine identifies, is empirically untrue. If there is a week with no entries, that is because the week had no entries. Anyone can see that simply by reading the material. Second, the supposed ‘important details’ that were redacted were private emails or phone numbers for individuals who may have met with individual Commissioners. This is squarely within Exemption C. Additionally, certain travel information was redacted where it represented the personal travel plans of an individual, such as for vacation or personal appointments. Travel that was conducted for a public purpose, such as research or meeting with state officials, was disclosed. Further, there was no ‘misattribution’. [The Commission has] produced the outlook calendars as requested, within the date ranges requested. If one has a great deal of empty space because there are no entries, the Requestor may simply look at the next page. Finally, and as explained in . . . prior communication with Requestor, the absence of the patient information in this disclosure is the product of working closely with the tech team to produce these documents in this format. While there were at least two instances in the original documents, this production does not include that information. The Requestor asked for the Commissioner’s calendars in weekly format. After much effort, that has been achieved with minimal redaction save under Exemption C.

Philip Schreffler, Esq. SPR25/1436 Page 5 June 5, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Commission to redact the responsive records, the Commission must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Commission’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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 un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine