O'Brien pushes for release of Cannabis Control Commission records in firing case

As the appeal of her firing inches through the court system, former Cannabis Control Commission chair Shannon O'Brien is pressing on multiple fronts to get information about her tenure at the CCC and Treasurer Deborah Goldberg's decision to fire her into the public record.

The Supreme Judicial Court last month kicked O'Brien's appeal down to the Superior Court, where a judge held a hearing Tuesday morning to consider whether a 1,733-page appendix that O'Brien filed with the court system alongside her appeal should be made publicly available in full, in part or not at all. O'Brien's lawyers say the public should have access to the appendix -- which includes reports from investigators who looked into complaints against O'Brien, testimony from the closed-door hearings Goldberg held before firing O'Brien, and Goldberg's written removal decision -- "so that [O'Brien] can clear her name and rehabilitate any damage done by the Treasurer."

Goldberg fired O'Brien, herself a former state treasurer and Democratic Party nominee for governor, in September after considering more than 20 hours of meetings held this summer as well as various documents, case law and policies. The treasurer has not released any document outlining her decision, but said she fired O'Brien because she "committed gross misconduct and demonstrated she is unable to discharge the powers and duties of a CCC commissioner."

The 1,733-page appendix was temporarily impounded when O'Brien filed it with her appeal to the SJC in November and the assistant attorney general representing Goldberg quickly moved to have the documents impounded until they can be scrubbed for any personal or private information that is protected from public disclosure. When SJC Justice Gabrielle Wolohojian transferred the case to Superior Court jurisdiction last month, she ordered the appendix "shall remain temporarily impounded in the Superior Court pending the Superior Court's ruling" on Goldberg's motion, which was taken under advisement by Judge Rosemary Connolly at Tuesday morning's hearing.

AAG John Hitt argued that the documents should remain impounded "because scattered throughout the 1,733-page document is personal data of individuals who are not parties to this action which is protected from disclosure under ... the Massachusetts Fair Information Practices Act."

He said Goldberg will file an "administrative record of proceeding" within the required time frame (90 days from being served with O'Brien's appeal) and will redact only that information that is protected under law. That filing will include "the record of materials related to the decision that the plaintiff challenges," he said.

"The Treasurer acknowledges that this case ... is of great interest to the public, and the public has a right to know as many of the facts and circumstances regarding the Treasurer's decision as possible. The Treasurer supports public disclosure of as much as the underlying record of proceedings before her as is possible," Hitt wrote in a filing. "However, the 1,733 pages attached by the plaintiff as an 'appendix' to her petition, without any regard for the privacy or similar interests of the third parties named in those materials, contains information regarding third-party employees of the Commission -- including sensitive personnel and potentially medical information -- as to which those third parties have a legitimate claim of protection."

Max Stern, one of O'Brien's lawyers, said Goldberg's office is seeking to keep private "essentially anything of significance, and certainly of help to Shannon O’Brien, of the evidence at the secret hearing that led to Shannon O’Brien’s termination – a decision that is being appealed by Chair O’Brien."

A court filing from O'Brien's legal team indicates that the appendix includes transcripts of the closed-door hearings, investigative reports, emails detailing employee complaints at the CCC, written testimony submitted in connection with the hearings, Goldberg's full removal decision, and more. O'Brien's camp has previously released a selection of those documents to reporters.

Stern included in the same filing last week an email exchange between himself and Hitt, in which the assistant attorney general spells out which pages of the appendix he thinks can be made public as-is, which pages can be removed from impoundment if O'Brien signs a waiver releasing Goldberg from Fair Information Protection Act requirements, and which pages should remain impounded absent a similar waiver or release signed by various unidentified third parties.

"Finally, it is unclear to me why you need to file the 1,733-page 'appendix' in this cert. action," Hitt wrote to Stern on Nov. 22, according to the copy filed by Stern. Hitt added, "The 'appendix' appears to serve no legitimate purpose."

The O'Brien appeal will return to Superior Court for another hearing on Friday, Jan. 17 at 2 p.m.

On Wednesday, the CCC plans to meet to review an Open Meeting Law complaint that O'Brien lodged last month, alleging that the agency improperly redacted the video of an April 2023 executive session that it supplied in response to a public records request the former chair made.

"The CCC is refusing to fully release the videos of 04/24/23 Executive Session even though the purpose of these meetings is completed," O'Brien, who was chair of the CCC at the time of the meeting in question, wrote in the complaint she filed Nov. 21. She added, "Open Meeting law states it is impermissible for a public body to do a performance assessment of the executive director in executive session. Conversations about the ED's performance occurred during these meetings, but there were no conversations that occurred that would allow this to be kept secret under any exemption noted in the Open Meeting Law. There is no 'privacy right' established nor does any 'attorney client' privilege exist to continue to hide these tapes."

Any public body that receives an Open Meeting Law complaint "must meet to review the complaint within 14 business days," the attorney general's office says, and the CCC will do that Wednesday. After that, the AG's Open Meeting Law guide says, the CCC will have 14 business days to "respond to the complaint in writing and must send the complainant a response and a description of any action the public body has taken to address it."

Materials included with the agenda for Wednesday's CCC meeting show that the former chairwoman sought a host of public records from the CCC in mid-October, including written minutes and video from the April executive session. The CCC provided some responsive documents at the end of October and followed up in a Nov. 15 letter. That notice told O'Brien the agency would provide additional documents, but was withholding one and redacting portions of the video citing an exemption for "personnel and medical files or information."

"As you know, the redacted video depicts the conversation which took place during an executive session meeting of the Commissioners for the purpose of establishing a governance charter to assist in the smooth operation of the Commission. Such conversations sometimes used specific examples to illustrate ideas in support of proposed edits to the working document," a CCC lawyer wrote to the former chair. "There are times at which the specific examples delve into employee performance in such a way that the information was considered by the Commission to constitute personnel information or otherwise personal information that would constitute an invasion of privacy."

Wednesday's CCC meeting is expected to include discussion of O'Brien's Open Meeting Law complaint and public records request, an update on records from the CCC's governance charter mediation sessions, and an update from Acting Chair Bruce Stebbins on that governance charter, which has still not been adopted.