Emory Snell, Jr. v. Office of the Chief Medical Examiner (SPR 20171140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1,201 7 SPR1711140 Jacqueline Faherty, Esq. General Counsel Office of the Chief Medical Examiner 720 Albany Street Boston, MA 021 18-25 18 Dear Attorney Faherty: I have received the petition of Emory Snell appealing the response of the Office of the Chief Medical Examiner (OCME) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 17,2017, Mr. Snell, Jr. requested "business records associated with autopsies, classified as homicides from 1986 to the present where Dr. William Zane was supervised; records related to Dr. William Zane's supervision posted or distributed to OCME facilities; materials related to the use of the 720 Albany Street location prior to 1995; and information related to what infractions could cause disciplinary actions." Unsatisfied with OCME's response, he petitioned this office and this appeal was open 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, 5 1O A(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlep, 419 Mass. 507, 5 11 (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. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Jacqueline Faherty, Esq. SPR1711140 Page 2 September 1,201 7 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. In its August 8, 2017 response, OCME indicates it does not possess certain records. Please note 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, fj 10(a)(ii). You also explain that other records exist and would be provided for a fee. In addition, you explain to Mr. Snell that "if you would like to pursue a cost estimate based upon your current request or if you would like to narrow your request, please do so in writing so that we may proceed." In his appeal petition Mr. Snell indicates he is "specifically interested in only the list of publically available information. . . ." Mr. Snell also refers to a specific court case. In light of Mr. Snell's appeal, in which he appears to clarify his request, I find OCME must provide Mr. Snell another response regarding this matter. Please note that agency fee estimates are governed by G. L. c. 66, fj lO(d)(ii). In understand a staff member of the Public Records Division contacted you and provided a copy of Mr. Snell's appeal petition. Conclusion Accordingly, OCME is hereby ordered to provide Mr. Snell, Jr. with a supplemental response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@,sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Emory Snell, Jr.