Sunshine, CCC v. Cannabis Control Commission (SPR 20260713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2026 SPR26/0713 Kajal Chattopadhyay, Esq. General Counsel Cannabis Control Commission 2 Washington Square Worcester, MA 01604 Dear Attorney Chattopadhyay: I have received the petition of CCC Sunshine (requestor) appealing the response of the Cannabis Control Commission (Commission/CCC) 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] 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. [2] 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 Appeals and Petition The requested records were the subject of previous appeals and a time petition. See SPR25/3845 Determination of the Supervisor of Records (January 13, 2026); SPR26/0291 Determination of the Supervisor of Records (February 10, 2026); SPR26/0618 Determination of the Supervisor of Records (March 2, 2026). In my March 2nd determination, I found that the Commission had not demonstrated that it submitted its petition within twenty business days after receipt of the request. The Commission responded on February 27, 2026. Unsatisfied with the Commission’s response, the requestor petitioned this office and this appeal, SPR26/0713, was opened as a result. 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 Chattopadhyay, Esq. SPR26/0713 Page 2 March 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 Commission has now produced only an email log. It has not represented that emails are the full universe of responsive records, and it has not produced or logged all other responsive materials, reports, correspondence, drafts, attachments, or work product encompassed by the request. … …The Commission characterizes these materials as communications and work product produced by Attorney Laduzinski in his capacity as Chair O’Brien’s “personal attorney.” Yet the log includes multiple communications to or involving agency personnel other than Chair O’Brien, including entries where Chair O’Brien does not appear to be copied at all. On its face, that is difficult to reconcile with the claim that these were privileged communications between a public official and her purported personal attorney. … …To the extent it continues to withhold all additional records under Exemption (f), its response remains categorical. Although the Commission now lists broad categories such as correspondence, investigative summaries, reports, and memoranda, it still does not explain why no segregable portion of any responsive record can be produced. …

Kajal Chattopadhyay, Esq. SPR26/0713 Page 3 March 13, 2026 The Commission’s February 27th Response On February 27, 2026, the Commission produced a privilege log and stated that it withheld certain records pursuant to the 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. 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):

Kajal Chattopadhyay, Esq. SPR26/0713 Page 4 March 13, 2026  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: As outlined in the Commission’s previous response, the disclosure of the requested materials would not be in the public interest because such disclosure would (i) compromise ongoing investigations and undermine future investigations and enforcement actions; (ii) reveal confidential investigative techniques, procedures, processes and sources; and (iii) create a chilling effect by discouraging potential witnesses from reporting and cooperating with investigations which would undermine the Commission’s ability to investigate current and future allegations of misconduct. These concerns remain the same. In the Determination, the Supervisor cites G. L. c. 66, § 10(b)(iv) and directs the Commission to clarify which records or categories of records it intends to withhold. In response, the Commission states that the withheld records include correspondence with law enforcement and other investigative bodies containing sensitive information relating to ongoing investigations; detailed summaries of confidential investigative steps, techniques, findings and sources of information pertaining to ongoing investigations; investigative reports containing sensitive and confidential information including materials that might be used as evidence in enforcement actions; and memoranda containing sensitive and confidential information pertaining to ongoing investigations. Given that these materials relate to ongoing investigations, any attempt to segregate or redact information from these files would serve to subvert and interfere with the investigations and, accordingly, would not be in the public interest. See, e.g., Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976) (police reports and letters submitted to police properly withheld in their entirety under Exemption (f)). Based on the foregoing, the Commission submits that the requested records are exempt from disclosure under Exemption (f). Although the Commission claims the records contain confidential investigative techniques that would be prejudicial to an ongoing investigation and create a chilling effect by

Kajal Chattopadhyay, Esq. SPR26/0713 Page 5 March 13, 2026 discouraging possible witnesses from reporting and cooperated with investigations if disclosed, it is remains unclear how all the records contain confidential investigative techniques, procedures, processes and sources. Also, the Commission must explain whether the records can be redacted so that segregable portions can be provided. It is additionally uncertain why records cannot be redacted to preserve the anonymity of voluntary witnesses. 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 explain whether segregable portions can be provided. 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). In its February 27th response, the Commission provided a privilege log identifying responsive materials, reports, emails, or correspondence that were redacted under the attorney- client privilege, and included the dates and the basis on which the privilege is being claimed. However, upon review of the Commission’s privilege log, I find that the Commission did not clarify whether the withheld records concern communications made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. Therefore, I find that the Commission has not met its burden to withhold the responsive materials, reports, emails, or correspondence under the attorney-client privilege and must clarify if the information withheld from the records provided in its February 27th response satisfies the requirements articulated in Suffolk.

Kajal Chattopadhyay, Esq. SPR26/0713 Page 6 March 13, 2026 Possession, Custody, or Control 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In cases where records are created in furtherance of Commission 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. Based on issues raised in the requestor’s appeal, it is unclear whether the Commission possesses additional responsive records. Specifically, the Commission must clarify whether it possesses additional responsive records. To the extent that additional records exist, I find the Commission must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Commission must clarify this matter. 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