CCC Sunshine v. Cannabis Control Commission (SPR 20251677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2025 SPR25/1677 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 May 20, 2025, the requestor sought: [1] The executive session minutes for the Commission’s meetings on November 25, 2024, and December 4, 2024, as ordered for public release by OML 2025, unredacted with respect to discussions of the Executive Director position, to the extent such minutes exist and are held by the Commission. [2] The video recording of the Commission’s April 24, 2023, executive session, unredacted, as OML 2025-61 establishes that the Commission may not rely on G.L. c. 30A, § 22(f), to redact portions, given the improper purpose of the session, to the extent this recording exists in the Commission’s custody beyond the publicly available redacted version at… [3] Existing records, such as correspondence, memoranda, payroll documents, meeting minutes, or internal communications, held by the Commission, related to the application of G.L. c. 94G, § 2(b), in determining [an identified individual]’s salary, including any adjustments reflecting the 5.4% pay raise effective January 1, 2024, as reported by the Boston Globe, and the subsequent increase to 8.16% as alleged in the LinkedIn post, covering January 1, 2023, to the present. If such records are maintained by another agency (e.g., HRD or the Executive Office for Administration and Finance) and accessible only via CTHRU, please confirm and direct us accordingly. 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. SPR25/1677 Page 2 June 26, 2025 [4] Existing internal records, such as correspondence, memoranda, or formal notifications, held by the Commission, where [an identified individual] or her representatives communicated to the Commission her intent to decline the 5.4% pay raise, as reported by the Boston Globe, covering January 1, 2023, to the present. If no such records exist, please confirm in writing that a diligent search was conducted and no responsive records were found. [5] Existing records, such as correspondence, memoranda, meeting minutes, or internal communications, held by the Commission, detailing the process, rationale, and communications for applying the 5.4% and 8.16% pay raises to [an identified individual], including any formal notifications (or lack thereof) to [an identified individual], covering January 1, 2023, to the present. [6] Existing records, such as correspondence or internal communications, held by the Commission, reflecting [an identified individual’s] stated intent to notify the Commission to deduct the additional pay raise amounts “until she is reinstated,” as per [an identified individual’s] statement, covering January 1, 2023, to the present. If no such records exist, please confirm in writing that a diligent search was conducted and no responsive records were found. [7] Existing records, such as correspondence, memoranda, payroll documents, performance evaluations, meeting minutes, or approval documentation, held by the Commission, related to the salary increases exceeding 7% for [identified individuals], covering January 1, 2023, to the present. If such records are maintained by another agency (e.g., HRD) and accessible only via CTHRU, please confirm and direct us accordingly. [8] Existing records, such as correspondence, memoranda, meeting minutes, or internal communications, held by the Commission, detailing the decision-making process, rationale, and approvals for granting the salary increases exceeding 7% to [identified individuals], including any involvement of these individuals in the decisionmaking or approval process for their own raises, covering January 1, 2023, to the present. [9] Existing records, such as correspondence, memoranda, performance evaluations, or internal communications, held by the Commission, reflecting the roles, responsibilities, and contributions of [identified individuals] in agency operations, including any involvement in financial, procurement, or governance decisions, covering January 1, 2023, to the present. [10] Existing records, such as correspondence, memoranda, or internal communications, held by the Commission, involving [identified individuals] in discussions or decisions related to the allegations of dysfunction, unethical behavior, or transparency issues (e.g., Open Meeting Law violations per OML 2025-61 and OML 2025-62), covering January 1, 2023, to the present.

Philip Schreffler, Esq. SPR25/1677 Page 3 June 26, 2025 The Commission responded on May 28, 2025, June 4, 2025, June 5, 2025, June 9, 2025, and June 11, 2025. Unsatisfied with the Commission’s responses, the requestor petitioned this office and this appeal, SPR25/1677, was opened as a result. While this appeal was pending, the Commission provided a supplemental response on June 12, 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. The Commission’s May 28th, June 4th, June 5th, June 9th, June 11th and June 12th Responses In its May 28, 2025 response, the Commission responded to each item of the request in turn as follows: [1] These document will be released to the public in the ordinary course now that the Commission has received the order. [2] The Commission is reviewing the OML determination letter and will take appropriate action in the ordinary course. [3] The requested records are not in the custody of the Commission and may instead be available via CTHRU or the Executive Office for Administration and Finance. [4] The requested records are not in the custody of the Commission and may instead be available via CTHRU or the Executive Office for Administration and Finance.

Philip Schreffler, Esq. SPR25/1677 Page 4 June 26, 2025 [5] The requested records are not in the custody of the Commission and may instead be available via CTHRU or the Executive Office for Administration and Finance. [6] The requested records are not in the custody of the Commission and may instead be available via CTHRU or the Executive Office for Administration and Finance. [7] All information you seek may be found on CTHRU or the Comptrollers office. [8] All information you seek may be found on CTHRU or the Comptrollers office. [9] This request fails to reasonably identify the documents being sought as it is unduly broad and subjective. [10] This request fails to reasonably identify the documents being sought as it is unduly broad and subjective. On May 28, 2025, the requestor asked for “a specific timeline for the release of [the requested executive session minutes]” and modified Items 9 and 10 of the request to seek: …job descriptions for these individuals, covering January 1, 2023, to present, which should clarify their roles and responsibilities. For their involvement in dysfunction or transparency issues, we limit our request to records of their participation in meetings or decisions directly referenced in OML 2025-61 and OML 2025-62, such as related correspondence or meeting minutes… Additionally, the requestor made a further request for “…records of all applicants for the Chief of Staff position, including any evaluation criteria, such as notes or assessments used to review candidates, from January 1, 2023, to present…” In its June 4, 2025 response, the Commission cited Exemption (c) of the Public Records Law to withhold performance evaluations of the identified individuals as well as employment records, evaluations and applications of individuals for the Chief of Staff position. The Commission further stated: I have identified a number of records that may be responsive to your request for job descriptions. I anticipate providing these records within the next five business days… [E]xecutive session minutes will be released in the ordinary course… In a series of emails between the requestor and the Commission on June 4, 2025 and June 5, 2025, the requestor and the Commission debated the applicability of Exemption (c) to the

Philip Schreffler, Esq. SPR25/1677 Page 5 June 26, 2025 requested records. Also on June 5, 2025, the requestor further modified their request regarding the Chief of Staff position “to specifically seek applicant resumes.” On June 9, 2025, the Commission reiterated its position under Exemption (c) and provided responsive documents pertaining to the Chief of Staff job description. The Commission further stated: As for the executive session minutes… while some of the topics discussed in the executive session are now subject to disclosure per the OML decisions, others must be redacted as they consist of attorney-client communications and other subject matter properly within the ambit of an executive session… I am informed the redactions will likely be complete by Thursday this week. On June 10, 2025, the requestor stated, “[t]he Chief of Staff description… appears to be a draft. We request confirmation of [its] accuracy…” In addition, the requestor further modified their request as follows: We… withdraw the ask for performance evaluations… Instead, we focus on Chief of Staff applicant records, sought on May 28 and June 5, 2025… [W]e request all resumes of candidates for the Chief of Staff position from [an identified individual]’s hiring timeframe… On June 11, 2025, the Commission provided the “correct COS job description,” and confirmed the earlier version was sent in error. The Commission also denied the request for resumes under Exemption (c). Current Appeal In the appeal petition, the requestor specifically objects to the Commission’s “…denial of our public records request for Chief of Staff applicant resumes and delay in releasing executive session minutes,” which pertains to Items 1, 9 and 10 of the request and subsequent request modifications. The requestor is not appealing the Commission’s response to Items 2, 3, 4, 5, 6, 7 and 8 of the request. In an email to this office and the requestor on June 12, 2025, while this appeal was pending, the Commission provided the requested executive session minutes subject to redactions. The Commission also stated, “…regarding the COS applicants, as this was an internal posting… the record largely speaks for itself…” In reply to the Commission’s June 12th email, the requestor stated: …[T]hese minutes reveal a concerning hiring process for the new Executive Director… We will promptly share with the Attorney General for her consideration under the Open Meeting Law…

Philip Schreffler, Esq. SPR25/1677 Page 6 June 26, 2025 We note your disclosure that the Chief of Staff position was an internal posting, a detail only now provided… we reiterate our request for all resumes of candidates for the Chief of Staff position from the timeframe of [an identified individual]’s hiring… 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). While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. Regarding the release of the requested resumes under Exemption (c), the Commission stated: Under Wakefield what you seek is categorically protected under Exemption C. There is no ‘weighing the public interest’, or other inquiry… Your request for the personnel file of existing employees, as well as the applications of prospective employees are squarely within this exemption and will not be disclosed…

Philip Schreffler, Esq. SPR25/1677 Page 7 June 26, 2025 Executive Session Minutes; Open Meeting Law Regarding the request for executive session minutes of the Commission’s meetings on November 25, 2024 and December 4, 2024 under Item 1 of the request, I find that the basis of the requestor’s appeal is unclear. The requestor is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, the Commission provided the responsive executive session minutes subject to redactions on June 12, 2025, and it appears the requestor is not appealing the redactions. Further, the requestor’s appeal petition and continued correspondence with the Commission raise issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a resolution of any remaining Open Meeting Law issues. Applicant Resumes Regarding Items 9 and 10 of the request and the requestor’s subsequent modifications on May 28, 2025, June 5, 2025 and June 10, 2025, it appears the requestor now only seeks “resumes of candidates for the Chief of Staff position from [an identified individual]’s hiring timeframe.” Based on the Commission’s responses, where the requested resumes were apparently submitted as part of employment applications derived from an internal posting, I find that such records fall within the core categories of personnel information described in Wakefield as useful in making employment decisions regarding an employee, and are exempt under Exemption (c). See Wakefield, 431 Mass. at 798. In Colman M. Herman v. City of Boston, et. al., Suffolk Superior Court, Civil Action No. 2384CV2395, the Court in its June 20, 2024 Decision and Order on Plaintiff’s Motion to Compel Public Records Responses, found that “personnel files . . . shall be considered exempt under exemption (c) . . .” Id. at 6. Consequently, the Commission has met its burden to withhold the applicant resumes entirely under Exemption (c) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Philip Schreffler, Esq. SPR25/1677 Page 8 June 26, 2025 Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine