Ibarguen, Esq., Diego v. Office of the Chief Medical Examiner (SPR 20140087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords February 24, 2014 SPR14/087 Ms. Jacqueline Faherty, Esq. General Counsel Office of the ChiefMedical Examiner 720 Albany Street Boston, MA 02118-2518 Dear Ms. Jacqueline Faherty, Esq.: I have received the petition of Attorney Diego Ibarguen appealing the response of the Office of the Chief Medical Examiner (OCME) to requests for public records made by his client, Kristen Setera ofWCVB-TV. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Setera requested copies and access to: 1. Records reflecting any current backlog of autopsy reports, including but not limited to, the intake date, the name of the deceased individuals and the name of the doctors( s) responsible for completing the reports. 2. Records reflecting any current backlog of death certificates with the final cause of death, including but not limited to, the names of the deceased individuals, the names of the doctor(s) responsible for completing the autopsy and the intake date. .. n··· - .. ...... -- - - In the OCME' s January 16 1 response you provided statistical data regarding OCME staffing, autopsy reports and death certificates for the years 2011 through 2013. The OCME denied providing any responsive records, however, citing Exemption (c), the privacy exemption of the Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The OCME is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. The OCMEs' response does not provide sufficient information as to how the claimed exemption applies to the withheld responsive records. One Ashburton Place, Room.1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jacqueline Faherty, Esq. SPR14/087 Page Two February 24, 2014 In February 10, 2014 telephone conversation an attorney on my staff discussed with you what a record custodian's burden is under the Public Records Law. To help you aide the OCME in meeting its burden you were also directed to our publication "A Guide to Massachusetts Public Record Law." As of the date ofthis detem1ination the OCME has not contacted this Office regarding any progress being made in this matter. Accordingly, the OCME is hereby ordered, within ten days of this order, to provide Attorney Ibarguen with the requested records, or provide to this office, with specificity, how a particular exemption applies to each record. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). The Supervisor of Records may require that a custodian compile an index in response to a public records request. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460 (2007); quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 384 (2002). Said index shall meet the following requirements: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. See 950 C.M.R. 32.08 (7)(a d). Whereas it is the duty of the records custodian to state with specificity which documents are being withheld, the exact exemptions claimed, and the reasons why the documents are being withheld, the OCME is hereby ordered to provide this office and

Ms. Jacqueline Faherty, Esq. SPR14/087 Page Three February 24, 2014 Attorney Ibarguen with a custodial index of the records. Ifyou have any questions about preparing this index, please do not hesitate to contact this office. If the OCME is planning to charge for the cost of complying with this public records request, Attorney Ibarguen must be provided with a detailed written, good faith estimate on each particular request. Once the OCME receives the estimate funds, the records must be provided. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Attorney Ibarguen. Supervisor of Records cc: Mr. Diego Ibarguen, Esq.