David G. Magraw v. Norfolk District Attorney's Office (SPR 20190925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 23, 2019 SPR19/0925 Laura A. McLaughlin, Esq. Norfolk County District Attorney's Office 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of David G. Magraw appealing the response of the Norfolk County District Attorney's Office (Office or NDAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Magraw requested the following categories of records: a. Copies of the reports, made from the interviews of the individuals listed on the sheet titled WALPOLE POLICE DEPARTMENT REPORTS, which was provided to me on April 1, 2019, b. Copies of the reports, of the interviews, of the individuals listed on the sheet titled STATE POLICE REPORTS which was provided to me on April 1, 2019, listed below: 12/20/90 Interview of [an identified individual] 10/05/94 Statement of Drs. RE: [a n identified individual] 11/09/94 Interview of [an identified individual] 11/28/94 Interview of [an identified individual] 11/28/94 Interview of [an identified individual] c. Any and all notes, and the report, made by [ an identified individual], during the autopsy of [an identified individual], performed on July 24, 1990, d. Any tape recording(s), made by [an identified individual], during the autopsy of [an identified individual], performed on July 24, 1990, e. The results, printout, of the EKG test performed on [an identified individual], performed by [an identified individual]on January 29, 1990, f. A copy of the sheets in your catelog [sic], showing the BATES stamped date of the documents with a listing of the documents, which have been acquired by my attorneys. 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

Laura A. McLaughlin, Esq. SPR19/0925 Page2 May 23, 2019 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, § 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record 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 requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Magraw's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the 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 while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Magraw may wish to consider another means of seeking to obtain any existing responsive records. Appeal Based on Mr. Magraw' s petition for appeal, it is my understanding that he is appealing the Office's responses to categories a., c., d., and e. of his request. As such, this determination will be limited to those portions of the request and the Office's corresponding responses.

Laura A. McLaughlin, Esq. SPR19/0925 Page 3 May 23, 2019 Walpole Police Reports With respect to Mr. Magraw's request for copies of particular Walpole Police Department reports, the Office indicates in its response that it is denying the request claiming that "the issue of whether the Walpole Police reports are public is currently pending before the [appeals] court," providing the docket number. The Office explains that Mr. Magraw previously filed a document entitled "Appeal of the Substantive Nature of the Walpole Police Department's August 8, 2017 Response" in the "criminal docket of the 1999 Norfolk Superior Court," the motion for which was subsequently denied. The Office states that Mr. Magraw appealed this decision and the issue is now pending in the appeals court. The Office concludes that "[a]s the issue of whether the reports are public is currently before the appeals court, the NDAO will not provide a determination until the issue has been resolved by the appeals court." In Mr. Magraw' s petition for appeal, he indicates that his "request for the Police Reoprts [sic] has not been made part of [his] December 17, 2018 Revised Brief presently being considered by the Appeals Court." Based on the Office's response, in conjunction with Mr. Magraw's petition for appeal, it is uncertain if the police reports are the subject of a matter pending in appeals court. See 950 C.M.R. 32.08(2)(b) (the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.) Further, it is unclear what exemption or legal basis under the Public Records Law the Office is claiming applies to withhold the police reports. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(b)(iv) (written response must "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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. As such, the Office has not met its burden under the Public Records Law to permit withholding of the requested reports. The Office must provide a detailed response to specifically explain how an exemption applies to withhold the requested records. Notes and report made during the autopsy of[ an identified individual] With respect to Mr. Magraw' s request for the notes and report made during the autopsy of an identified individual, the Office indicates that it is denying this request. The Offices states that autopsy reports are not public records pursuant to cited case law and G. L. c. 38, § 2. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Laura A. McLaughlin, Esq. SPR19/0925 Page 4 May 23, 2019 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). 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. G. L. c. 38, § 2 states in pertinent 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. If a medical examiner conducts an autopsy on a body of a deceased person who within six months before the date of death received services from a facility or program operated, contracted for, or licensed by the department of mental health, the office of the chief medical examiner shall provide a copy of the autopsy report, upon request, to the commissioner of mental health for the purpose of completing an investigation into the circumstances surrounding the death, if a next of kin does not object thereto. The chief medical examiner, with the approval of said secretary, may establish fees for providing autopsy reports to those who are legally entitled to receive them. G. L. C. 38, § 2. By its operation through Exemption (a), whereas the claimed statute specifically exempts autopsy reports from disclosure, I find the Office is permitted to withhold the requested autopsy report. However, based on the Office's response, it is unclear if the Office possesses any notes responsive to the request. See G. L. c. 66, § lO(a)(ii) (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 ofrecords at the time of the request). The Office must clarify this matter.

Laura A. McLaughlin, Esq. SPR19/0925 Page 5 May 23, 2019 Tape recordings made during the autopsy of an identified individual With respect to Mr. Magraw's request for tape recordings made during the autopsy of an identified individual, the Office indicates that it is denying this request. The Office states again that autopsy reports are not public records pursuant to G. L. c. 38, § 2. The Office additionally cites to Exemption (c) of the Public Records Law and G. L. c. 258B, § 3(h) as its basis for withholding the recordings, indicating that "any tape recordings or photographs of an autopsy are not public as they would be an intrusive violation of the victim's privacy interests and contain 'intimate details of a highly personal nature.' Any perceived public interest in disclosure is overwhelmingly outweighed by the victim's privacy interests." Based on the Office's response, it is uncertain how the requested tape recordings constitute an "autopsy report" under G. L. c. 38, § 2. Accordingly, the Office has not met its burden to withhold the record under this statute as it operates through Exemption (a). G. L. c. 258B, § 3 states in pertinent part: To provide victims a meaningful role in the criminal justice system, victims and witnesses of crime, or in the event the victim is deceased, the family members of the victim, shall be afforded the following basic and fundamental rights, to the greatest extent possible and subject to appropriation and to available resources, with priority for services to be provided to victims of crimes against the person and crimes where physical injury to a person results: (h) for victims and witnesses, to be informed of the right to request confidentiality in the criminal justice system. Upon the court's approval of such request, no law enforcement agency, prosecutor, defense counsel, or parole, probation or corrections official may disclose or state in open court, except among themselves, the residential address, telephone number, or place of employment or school of the victim, a victim's family member, or a witness, except as otherwise ordered by the court. The court may enter such other orders or conditions to maintain limited disclosure of the information as it deems appropriate to protect the privacy and safety of victims, victims' family members and witnesses. Based on the Office's response, it is unclear how G. L. c. 258B, § 3(h) either "specifically or by necessary implication" exempts the requested recording from disclosure. See G. L. c. 4, § 7(26)(a). Consequently, the Office has not met its burden to withhold the record under this statute as it operates through Exemption (a). Exemption ( c) Exemption (c ) permits the withholding of: personnel and medical files or information; also any other materials or data

Laura A. McLaughlin, Esq. SPR19/0925 Page 6 May 23, 2019 relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically 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). While it is generally held that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. 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). 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 disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar 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 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292.

Laura A. McLaughlin, Esq. SPR19/0925 Page 7 May 23, 2019 Whereas the individual who is the subject of the tape recording is deceased, it is uncertain how a privacy interest in the recording has been retained. See Chief Medical Examiner, 404 Mass. at 134. To the extent that the recording contains medical information related to an identifiable individual, such information may properly be withheld under the first clause of Exemption (c). However, based on the Office's response, it is uncertain whether the recording may be redacted of any exempt material and the segregable portions provided to the requestor. See G. L. c. 66, § lO(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure). The Office must clarify this matter. EKG test performed on identified individual With respect to Mr. Magraw's request for the EKG test results and printout performed on an identified individual, the Office indicates that it is denying this request. The Office states that "[m ]edical information 'will always be of a sufficiently personal nature to warrant exemption,"' citing to Exemption (c) of the Public Records Law and case law. Based on the Office's response and the nature of the request, I find the Office has met its burden under the first clause of Exemption (c) to withhold the requested records. See G. L. c. 4, § 7(26)(c). Order Accordingly, the Office is ordered to provide Mr. Magraw 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: David G. Magraw