CCC Sunshine v. Cannabis Control Commission (SPR 20253845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 13, 2026 SPR25/3845 Kajal K. Chattopadhyay, Esq. General Counsel Cannabis Control Commission 50 Franklin Street Boston, MA 02110 Dear Attorney Chattopadhyay: 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 December 5, 2025, the requestor requested: [1] The memo prepared by [an identified individual] regarding New York and “debarment,” discussed at the December 4, 2025, public meeting. [2] Any other materials, reports, emails, or correspondence prepared by [an identified individual] that have been presented to, circulated among, or used by the Commission or individual Commissioners from September 1, 2025, to December 5, 2025. These materials, at least those discussed in an open public meeting, are public records with no attorney-client privilege. If records are to be withheld based upon privilege, please identify the records and the basis for withholding. [3] All records of criminal referrals made by the Chief of Investigations and Enforcement or any CCC staff over the last 4 years (December 5, 2021, to December 5, 2025), including reports, memos, correspondence, or summaries of referrals to law enforcement agencies (e.g., local police, district attorneys, state police, or federal authorities), as requested by the Commission at the December 4, 2025, meeting. The Commission responded on December 29, 2025. Unsatisfied with the Commission’s response, the requestor petitioned this office and this appeal, SPR25/3845, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to the requestor and this office on January 7, 2026. 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

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 2 January 13, 2026 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 its appeal petition, the requestor contends: … The statute and regulations require the RAO to determine what records are being withheld and to provide the required detail when privilege is claimed. The agency’s burden does not shift to the requester because an employee or subordinate refuses to cooperate. The Commission’s Submission effectively asks the Supervisor to accept an agency that has identified more than 100 responsive documents while declining to provide the information the law requires to support withholding. That approach should be rejected. The Commission’s December 22nd and January 7th Responses In its December 22, 2025 response, the Commission stated that it would “provide responsive records as soon as possible.” In its January 7, 2025 response, the Commission provided a record responsive to Item 1 of the request, and cited Exemptions (b), (d), and (f) of the Public Records Law, and the attorney-client privilege for withholding records responsive to Items 2 and 3. See G. L. c. 4, § 7(26)(b), (d), (f). With regard to Items 2 and 3, the Commission stated the following: 2. This request is very broad and expansive as drafted. An initial search of agency Legal Department files yielded over 100 responsive documents relating to [an

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 3 January 13, 2026 identified individual’s] work for the agency’s Legal Department which are protected from disclosure by the attorney-client privilege and numerous public records exemptions, including G.L. c. 4, § 7, cl. Twenty-sixth (b) and (d). That said, [an identified individual] purports to simultaneously represent [another identified individual] as her personal attorney under G.L. c. 10, § 76(i) and the RAO has been told that there are materials pursuant to that relationship that are protected from disclosure by the attorney-client privilege as well as G.L. c. 4, § 7, cl. Twenty-sixth (b), (d) and (f). Since no information about these materials has been shared with the RAO, the RAO has been unable to independently verify the volume or nature of these materials. 3. This request is very broad and expansive as drafted and would require review of thousands of documents. That said, any responsive documents are protected from disclosure as investigatory materials under G.L. c. 4, § 7, cl. Twenty-sixth (f). Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). In this case, the Commission has not demonstrated that the requested records are solely related to internal personnel rules and practices of the government unit. Additionally, the Commission has not explained whether such records is predominantly used internally, and it is unclear how such records would significantly risk circumvention of agency regulations and statutes. Therefore, the Commission has not met its burden to withhold the responsive records, in their entirety, under Exemption (b).

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 4 January 13, 2026 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Commission is advised that any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Consequently, the Commission must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the Commission has not established how the records at issue are “interagency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain what deliberative process remains ongoing and how disclosure of the records would taint the ongoing deliberative process. The Commission must clarify these matters.

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 5 January 13, 2026 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 6 January 13, 2026  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Based on the Commission’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Commission states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. It is additionally uncertain how the records can be withheld in their entirety. The Commission did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Commission must clarify. Additionally, it is unclear from the Commission’s response, which specific records the Commission intends to withhold. The Commission must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (b), (d), and (f). See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process,

Kajal K. Chattopadhyay, Esq. SPR25/3845 Page 7 January 13, 2026 that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based on its January 7th response, I find the Commission has not met its burden in claiming the attorney-client privilege to withhold the responsive records. Specifically, the Commission must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Commission must clarify whether the communications were made during a client’s search for legal advice from an attorney in his or her capacity as such, whether the communication was made in confidence, and whether the privilege as to the communication has been waived. 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 further 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