Sunshine, CCC v. Cannabis Control Commission (SPR 20261110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2026 SPR26/1110 Stephen G. Roche, Esq. Records Access Officer Cannabis Control Commission 2 Washington Square Worcester, MA 01604 Dear Attorney Roche: 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] 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); SPR26/0713 Determination of the Supervisor of Records (March 13, 2026). In my March 13th determination, I ordered the Commission to explain how all the records contain confidential investigative techniques, procedures, processes and sources and to clarify if the information withheld from the records satisfies the requirements articulated in Suffolk. The Commission responded on March 26, 2026. Unsatisfied with the 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

Stephen G. Roche, Esq. SPR26/1110 Page 2 March 31, 2026 Commission’s response, the requestor petitioned this office and this appeal, SPR26/1110, 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 the requestor’s appeal petition, the requestor contends: The Supervisor’s determination required the Commission to explain whether the records can be redacted so that segregable portions can be provided. The Commission’s answer, that investigatory material is “so deeply embedded” that it cannot be meaningfully redacted, does not meet that instruction. It is the same position, restated. … CCC Sunshine respectfully requests that the Supervisor direct the Commission to… confirm the date certain by which it will complete its Suffolk review and either produce the records or issue a compliant withholding response[.] The Commission’s March 26th Response Item 1 With regard to Item 1, on March 26, 2026, the Commission stated that it withheld certain records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f).

Stephen G. Roche, Esq. SPR26/1110 Page 3 March 31, 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  Disclosure of records would cause a chilling effect, because the exemption allows

Stephen G. Roche, Esq. SPR26/1110 Page 4 March 31, 2026 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 Commission urged that the requested records should be protected from disclosure under Exemption (f) and noted “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.” In support of its position, the Commission cited to Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976), in which the Supreme Judicial Court held that police reports and letters submitted to police were properly withheld in their entirety under Exemption (f)). In its Determination, the Supervisor stated “the Commission must explain whether the records can be redacted so that segregable portions can be provided.” Id. at 5. In response, the Commission states that the information pertaining to ongoing investigations is so deeply embedded in the requested records that they cannot be meaningfully redacted without jeopardizing the ongoing investigations; revealing confidential investigative techniques, procedures, processes and sources; and/or creating a chilling effect as previously outlined. See Bougas, 371 Mass. at 62. With regard to Item 1, although portions of the responsive record may fall under Exemption (f), it is uncertain how the record can be withheld in its entirety. The Commission did not provide adequate supporting information to demonstrate how disclosure of any segregable portion of the record “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). It is additionally uncertain what records the Commission possesses that are responsive to the request. To deny access to a record under the Public Records Law, a records access officer must identify the records, categories of records, or portions of the records it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Commission must identify the records in its possession that it is withholding under Exemption (f). The Commission must clarify these matters.

Stephen G. Roche, Esq. SPR26/1110 Page 5 March 31, 2026 Item 2 With regard to Item 2, on March 26, 2026, the Commission stated, “…the RAO is in the process of gathering all the responsive documents and reviewing them for compliance with the decision in Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007). The Commission intends to complete this review within ten business days and either provide the documents or identify an exemption under which they may be properly withheld.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). With regard to Item 2, where the requestor submitted their request on December 5th, and the Commission has not provided responsive records, I find the Commission has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Commission must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Commission must provide responsive records on a rolling basis. 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).

Stephen G. Roche, Esq. SPR26/1110 Page 6 March 31, 2026 Sincerely, Manza Arthur Supervisor of Records cc: CCC Sunshine