Colman Herman v. Office of the Chief Medical Examiner (SPR 20200027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 13, 2020 SPR20/0027

Mr. Eric Hogberg Office of the Chief Medical Examiner 720 Albany Street

Boston, MA 02118

Dear Mr. Hogberg:

I have received the petition of Colman Herman appealing the response of the Office of the Chief Medical Examiner (OCME) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, Mr. Herman requested hard copies and electronic copies of records relating to an identified person. . .

The OCME provided Mr. Herman with a December 23, 2019 response and responsive emails. However, the OCME informed Mr, Herman that it will withhold any autopsy report under G, L. c. 38, § 2 and Exemption (a), and that certain information contained in the responsive emails will be withheld under Exemption (c). The OCME did not identify what other reports or records it possesses pertaining to Mr. Herman’s request. On December 31, 2019, after Mr. Herman sought clarification concerning the OCME’s Exemption (a) and (c) claims, other records the OCME possesses that it has withheld, and what exemption(s) the OCME used to withhold certain information redacted from the records, the OCME provided an email response.

In your December 31* response, you confirmed that no autopsy report exists for the identified person, and that the OCME will withhold any other records that contain medical information and/or private information under Exemption (c). As a result, Mr. Herman petitioned the Supervisor of Records (Supervisor) and this appeal was opened.

No records

The OCME’s December 31* response confirms that no responsive autopsy report exists. While the OCME does not possess an autopsy report, it is unclear what other responsive reports or records it has in its possession. See G. L. c. 66, § 10(a)(i) (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), The OCME must clarify this matter.

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 SPR20/0027 Page 2 . January 13, 2020

Exemption (c)

In your December 31% email, you indicate, “...the OCME will not produce any records or reports in its possession that contain medical and/or personal information, including medical records, police reports, toxicology reports, or any other records that contain information that would constitute an unwarranted invasion of personal privacy.” Therefore, this determination will address both clauses of Exemption (c).

Exemption (c) applies to: 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

G.L. ¢. 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),

First clause of (c) — medical

Under the first clause 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 will be of a sufficiently personal nature to warrant exemption. Globe Newspaper | Co., 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).

Your response indicates that the OCME intends to withhold records in their entirety under Exemption (c) if the records pertain to medical information. However, the OCME has not established that the medical information cannot be redacted from the records. Therefore, the OCME has not met its burden to withhold these records in their entirety under the first clause of Exemption (c).

Second clause of (c) - privacy

The OCME also explains that records or information are withheld under the second clause of Exemption (c) due to privacy concerns.

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

Eric Hogberg SPR20/0027 Page 3 January 13, 2020

Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on 4 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.

Based on the OCME’s December 23" and December 31 responses, I find that the OCME has not met its burden of specificity in withholding records in their entirety under the privacy clause of Exemption (c). Nor, has the OCME supported its redaction of “case numbers” and the name of a private citizen redacted from one of the records under the privacy clause of Exemption (c).

Burden of specificity in claiming exemptions; duty to segregate

The OCME denied Mr. Herman’s request for certain records without supporting its Exemption (a).and Exemption (c) claims to withhold responsive records. The OCME provided some records in redacted format without claiming an exemption or exemptions with specificity. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The OCME 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).

In addition, the OCME did not identify the records, categories of records or portions of records in its possession responsive to Mr. Herman’s request that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer

Eric Hogberg SPR20/0027 Page 4 January 13, 2020

must identify the record, categories of records, or portions of the record it intends to withhold, G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the OCME must identify what type of record(s) it has in its possession that the OCME withheld.

Conclusion

Accordingly, the OCME is ordered to provide Mr. Herman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations 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.

Llvoco

Kubtees S. Murray Mold

Supervisor of Records

ec: Colman Herman