Colman Herman v. Office of the Chief Medical Examiner (SPR 20200194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 13, 2020 SPR20/0194 Eric Hogberg Records Access Officer 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested hard copies and electronic copies of records relating to an identified person. Previous appeal The requested records were the subject of a prior appeal. See SPR20/0027 Determination of the Supervisor of Records (Supervisor) (January 13, 2020). Prior to this office opening SPR20/0027, 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 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 a further response. In your December 31st response, you confirmed that no autopsy repmi 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, and this office opened SPR20/0027. 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 SPR20/0I94 Page 2 February 13, 2020 In my January 13th determination, I found that the OCME did not meet its burden of specificity in withholding, in their entirety, certain records under the first clause of Exemption (c ). I also found that the OCME did not meet its burden of specificity in withholding, in their entirety, records under the privacy clause of Exemption (c). Nor, did the OCME meet its burden of specificity in redacting "case numbers" and the name of a private citizen redacted from one of the records under the privacy clause of Exemption (c). As a result, I ordered the OCME to provide Mr. Herman with a further response to support its exemption claims and to identify what type of record(s) the OCME has in its possession that the OCME withheld. Current appeal After my January 13th determination for SPR20/0027, the OCME provided Mr. Herman with additional records, identified as, a Declaration of Cause and Manner of Death and email communications in redacted format. Your January 23rd response indicates that the personal email address of a private citizen was redacted under the privacy clause of Exemption ( c) . Concerning the redaction of the private citizen's email address, your response states, "[t]he OCME does not find that the production of a private citizen's personal email address to the media outweighs the privacy interest in this case to further serve a public interest." In addition, the OCME informed Mr. Herman that it is in possession of a Toxicology report; hospital records; dental records; an Emergency Medical Service (EMS) report that the OCME is withholding in their entirety as medical information under the first clause of Exemption (c). Finally, the OCME indicates that it is withholding a Death Notification report; Dispatch Removal Report; Town of Brookline Police Department rep01i, and a preliminary rep01i from the Department of State Police under the privacy clause of Exemption (c ). You state, " ... in accordance with OCME policy (previously produced), the OCME does not produce third-party records obtained through its investigation ... such as police reports and medical records since the OCME is not the originator and custodian of those records." The OCME informed Mr. Herman that he should request these records from the originator of the records, including the State Police and the Town of Brookline Police Department. As a result of the OCME's January 23rd response, Mr. Herman petitioned the Supervisor again, and the current appeal was opened. In his petition, Mr. Herman indicates that the OCME's January 23rd response still lacks the specificity required by the Public Records Law; that the OCME's objection to produce records originating outside of the OCME's office does not comply with the Public Records Law and that the OCME's decision to withhold the personal email address of a private citizen due to the requestor's status as a freelance journalist is irrelevant. In camera inspection In order to facilitate a determination as to the applicability of the OCME's Exemption (c) claim to justify withholding records in their entirety and some records in redacted format, the

Eric Hogberg SPR20/0I94 Page 3 February 13, 2020 OCME must provide this office with an un-redacted copy of the responsive records, and the redacted records provided to Mr. Herman, for an in camera inspection. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this.office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would ce 1i ainly affect our credibility within the legal community. Order Accordingly, the OCME is ordered to provide this office with an un-redacted copy of the responsive records at issue for in camera review without delay. The OCME may provide this office with an explanation of its position regarding the applicability of the exemption claimed to withhold and to redact the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman