Freddie Lee Drayton v. Office of the District Attorney - Hampden District (SPR 20160845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18,2016 SPR16/845 Ms. Maida Wassermann, Esq. Office of the District Attorney -Hampden County Hall of Justice 50 State Street Springfield, MA 01102-0559 Dear Assistant District Attorney Wassermann: I have received the petition of Freddie Lee Drayton appealing the response of the Hampden County Office of the District Attorney (District Attorney) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Drayton requested a copy of an autopsy report and findings. In a response dated October 4, 2016 the District Attorney explained that it intends to withhold the responsive records pursuant to the Chief Medical Examiner powers and duties statute. G. L. c. 38 §2; G. L. c. 4 §7(26)(a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Maida Wasserman, Esq. SPR16/845 Page2 October 18,2016 The applicable statute that permits the District Attorney to withhold certain records is G. L. c. 38, § 2. It provides in pertinent part: The chief medical examiner ... shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. G. L. c. 38, § 2 (emphasis supplied). Right ofA ccess Please note that the personal status of the requestor in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). It may be preferable for Mr. Drayton to seek access to the responsive records through the judicial process. Determination Accordingly, whereas the language of the statute clearly states that autopsy reports are not public records, I find the responsive records they may be withheld pursuant to Exemption (a) of the Public Records Law. This appeal is now closed. cc: Mr. Freddie Lee Drayton