Emory Snell, Jr. v. Office of the Chief Medical Examiner (SPR 20192527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth .Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2020 SPR19/2527 Eric Hogberg, Esq. Office of the Chief Medical Examiner 720 Albany Street Boston, MA 02118-2518 Dear Attorney Hogberg: I have received the petition of Emory Snell appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66, § lOA; also 950 C.M.R. 32.08(1). Specifically, Mr. Snell requested several categories of records including policies, procedures, directives and information from personnel files for a named individual. The Office provided Mr. Snell with a response on December 2, 2019 citing Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Office's response, Mr. Snell appealed to this office on December 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, § IO(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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Eric Hogberg, Esq. SPR19/2527 Page 2 January 3, 2020 Appeal In the Office's December 2nd response the Office indicates that the "OCME has maintained personnel records for its employees, to include William Zane and Stanton Kessler, which are not subject to public disclosure." The Office fmiher asserts that the "OCME produced a copy of William Zane's entire personnel file for in camera review, seeking, among other things, records relating to autopsy protocols and restrictions placed upon William Zane. The OCME condµcted a vigorous search for records relating to OCME protocols or restrictions for suspected homicide autopsies (imposed on Dr. Zane or the OCME in general), or the supervision of assistant medical examiners in conducting suspected homicide autopsies. As represented to the Comi, after conducting multiple searches, the OCME did not locate responsive documents." Exemption (c) 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 unwan-anted invasion of personal privacy. G. L. c. 4, § 7(26)(c). First clause 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 information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts comis have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pe1iaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publ'g Co. v. Register of Probate for Norfolk Cnty., 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be

Eric Hogberg, Esq. SPR19/2527 Page 3 January 3, 2020 considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how the responsive 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 must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Further, it is unclear what, if any, responsive records the Office possesses. As a result, I find that the Office did not satisfy its burden in responding to this records request. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Conclusion Accordingly, the Office is ordered to provide Mr. Snell with a response in compliance with the Public Records Law, its Access Regulations and this order within 10 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, ~M~ Supervisor of Records cc: Emory Snell