Sunshine, CCC v. Cannabis Control Commission (SPR 20260291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2026 SPR26/0291 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. Previous Appeal The requested records were the subject of a previous appeal. See SPR25/3845 Determination of the Supervisor of Records (January 13, 2026). In my January 13th 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. SPR26/0291 Page 2 February 10, 2026 determination, I ordered the Commission to explain whether segregable portions of the responsive records can be provided, identify the records, categories of records, or portions of records it intends to withhold or redact under Exemptions (b), (d), and (f), and provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege. The Commission responded on January 28, 2026. Unsatisfied with the Commission’s response, the requestor petitioned this office and this appeal, SPR26/0291, 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. Current Appeal In its appeal petition, the requestor states: …it acknowledges a second bucket of communications exists relating to Attorney Laduzinski’s claimed “personal attorney” role for [an identified individual], and it expressly refuses to provide any privilege log for that bucket, stating the RAO “is unable” to do so because Attorney Laduzinski “renewed his refusal” to provide information to the RAO. That is not compliance with the Public Records Law or the January 13th determination. The custodian is the agency. An employee’s or former employee’s refusal to cooperate with the RAO is not a privilege, not an exemption, and not a lawful basis to withhold records without the record-level identification required for privilege review…. … If any “personal counsel” communications were presented to commissioners in their official capacities, circulated through Commission channels, stored on

Kajal K. Chattopadhyay, Esq. SPR26/0291 Page 3 February 10, 2026 Commission systems, or used for Commission business, they are responsive agency records. … The Commission continues to withhold “any responsive documents” for a four- year span, relying on generalized assertions about prejudice, chilling effects, and investigative techniques. The Submission still does not identify records or categories of records withheld, does not apply segregability, and does not explain why basic referral metadata cannot be produced (for example: referral dates, recipient agencies, counts, and non-sensitive tracking fields). The Commission’s January 28th Response On January 28, 2026, the Commission stated that it withheld certain records pursuant to attorney-client privilege and Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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.

Kajal K. Chattopadhyay, Esq. SPR26/0291 Page 4 February 10, 2026 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  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. In its response, the Commission states: The broad request includes both active and inactive investigations. To the extent that the request implicates active agency investigations, disclosure of information from those files would compromise the integrity of those ongoing investigations and undermine future investigations and enforcement actions. To the extent that the request implicates inactive agency investigations that have been referred to other investigation and enforcement agencies, the Commission has not been advised by such other agencies that their own investigations are complete. Accordingly, premature disclosure of information relating to matters referred to other agencies would serve to undermine those investigations and the public interest by divulging sensitive and confidential information. … … Even if the agencies to whom matters were referred had completed their investigations (which the Commission has not been so advised), Exemption (f) would still prevent disclosure of such records for a number of reasons. First, disclosure of records pertaining to Commission investigations would serve to compromise future investigative efforts by revealing confidential investigative techniques, procedures, processes and sources. Second, disclosure would have a chilling effect on those sources of information that have chosen to cooperate only on condition that their status as a confidential source would be maintained. This chilling effect would discourage potential future witnesses from coming forward

Kajal K. Chattopadhyay, Esq. SPR26/0291 Page 5 February 10, 2026 and undermine the Commission’s ability to investigate current and future allegations of misconduct or impropriety. As a result, unlawful conduct would go undetected and unexamined which would have deleterious impacts on public health and safety and would not be in the public interest. … Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Specifically, it is unclear why the records cannot be redacted to protect the identities of voluntary witnesses, so that segregable portions can be provided. See G. L. c. 66, § 10(a); 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 this. 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 or redact under Exemption (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, 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). Under the attorney-client privilege, the Commission explains: The agency contends that Attorney Laduzinski’s communications and work

Kajal K. Chattopadhyay, Esq. SPR26/0291 Page 6 February 10, 2026 product during the time period performed by him in his capacity as an Associate General Counsel for the agency are protected by the attorney-client privilege and as attorney work-product. The RAO has attached a privilege log of these communications hereto and further asserts that the communications were made in the course of providing legal advice to a client, were made in confidence and the privilege or work product protection has not been waived. Where the Commission indicates that the “other materials, reports, emails, or correspondence prepared by [Attorney Steven Laduzinski] that have been presented to, circulated among, or used by the Commission or individual Commissioners from September 1, 2025, to December 5, 2025” are confidential communications between Attorney Laduzinski and the Commission’s employees, and has provided a privilege log in accordance with G. L. c. 66, § 10A(a), I find the Commission has met its burden to withhold records listed in its privilege log under the attorney-client privilege. Possession, Custody, or Control; Duty to Deliver Records Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In its January 28th response, the Commission stated the following: Additionally, as indicated in the agency’s January 7, 2026, response, Attorney Laduzinski was acting as an Associate General Counsel for the agency while simultaneously purporting to be acting as [an identified individual’s] personal attorney under G.L. c. 10, sec. 76(i) during the time period at issue. Attorney Laduzinski and [an identified individual] contend that their communications are protected from disclosure by the attorney-client privilege and Exemptions (a), (b), (d) and (f). G.L. c. 4(26)(a),(b), (d), (f). In response to Supervisor’s January 13, 2026 determination, and in an effort to comply with its directives, the RAO reached out to Attorney Laduzinski for a detailed breakdown of the work he has performed for [an identified individual] so that a privilege log of responsive communications could be assembled. Despite being informed of the Supervisor’s January 13, 2026, determination, Attorney Laduzinski renewed his refusal to produce the requested information. As a result, the RAO is unable to provide a privilege log of Attorney Laduzinski’s communications involving work he performed for [an identified individual] during the time period at issue. Should the Supervisor direct the RAO to produce a privilege log of these communications, the RAO will be required to undertake additional measures to do so.

Kajal K. Chattopadhyay, Esq. SPR26/0291 Page 7 February 10, 2026 The Commission is advised that in cases where records are created in furtherance of the Commission’s business, the Commission has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. 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