Alex F. Scesny v. Office of the Chief Medical Examiner (SPR 20181007)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23,2018 SPR18/1007 Lisa Riccobene Office of the Chief Medical Examiner 720 Albany Street Boston, MA 02 11 8 -25 18 Dear Ms. Riccobene: I have received the petition of Alex Scesny appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66, IOA; see also 950 C.M.R. 32.08(1). Specifically, on April 28,2018, Mr. Scesny requested various records related to an identified crime scene. On June 19,201 8, the Office denied his request claiming the responsive records are exempt from disclosure pursuant to G. L. c. 38, 2 as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, 7(26)(a). While this appeal was pending, the Office provided another response, dated July 19,2018 , to this office in which it additionally claims Exemption (c) of Public Records Law applies to withhold the responsive records. G. L. c. 4, § 7(26)(c). Tlz e 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 lOA(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, 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, lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Lisa Roccobene Page 2 July 23,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) In its July 1 9re~sp~on se, the Office indicates that "[tlhe requested documents(s), to the extent that they exist, are part of the autopsy file created by the [Office] in its investigation into the cause and manner of [an identified person's] death. These records are not a matter of public record since as they are contained within the [Office's] autopsy file ("chart"), which was explained in the [Office's] June 19,201 8 response. Specifically, any such records are exempt from production pursuant to M.G.L. c. 4, 5 7, Twenty-sixth (a), specifically, the statutory exemption in M.G.L. c. 38, 5 2, which states that autopsy records are not public." Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: The chief medical examiner, with approval of the secretary of the executive office of public safety, 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.

Lisa Roccobene Page 3 July 23,20 18 Exemption (c) In its July 19 thr esponse, the Office indicates "these records, to the extent they exist, are also exempt pursuant to M.G.L. c. 4 8 7, Twenty-sixth (c), which includes medical files or information, and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. The single report requested ("made up of general description(s) of the victimlcrime scene.. ." ) constitutes medical files and/or information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. As such, no such records will be produced." Exemption (c) permits the withholding of personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy The first clause creates a categorical exemption for personnel and medical information that relates to an identzjiable individual and is of a "personal nature." Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427,434 (1983). Medical information that is of a personal nature and relates to a specijically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017).

Lisa Roccobene Page 4 July 23,201 8 The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n. 13; see also Doe v. Repistrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 29 1. The public has a recognized interest in laowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Compliance with the requirements of providing a response; specificity Whereas the Office's July 19~r"e sponse indicates that "[tlhe requested documents(s), to the extent that they exist," are exempt, it is uncertain whether the Office possesses records responsive to the request. 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, 5 lO(a)(ii). I find the Office must provide a response to Mr. Scesny that provides additional information regarding whether the Office possesses responsive records. See G. L. c. 66, 9 10(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. ."); Flatley, 419 Mass. at 51 1 (custodian has the burden of establishing the applicability of an exemption). Additionally, the Office's response did not contain the specificity required in a denial of access to public records. The Office's response merely cites Exemptions (a) and (c) without sufficient explanation as to the exemptions' applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. With respect to its Exemption (a) claim, based on the Office's July 1 9re~sp~on se, it is unclear how all the requested records are exempt from disclosure pursuant to the cited statute. Specifically, it is unclear how all the records contained in the autopsy file constitute an "autopsy report" under the statute. See G. L. c. 38, 5 2. With respect to the first clause of Exemption (c), to the extent that the responsive records contain medical information, the Office is permitted to redact the records accordingly. However, based on the Office's July 1 9re~sp~ons e, it is uncertain how the records are exempt from disclosure pursuant to the second clause of Exemption (c). Specifically, it is unclear what type(s) of personal information the records contain, whether that information falls within the types of

Lisa Roccobene Page 5 July 23,2018 information the second clause aims to protect and how the records may be withheld under the required balancing test. See PETA, 477 Mass. at 291-292 n. 13. Additionally, the Office did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office is advised that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this matter. Order Accordingly, the Office is ordered to provide Mr. Scesny with a 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: Alex Scesny