Ellen J. Collins v. Office of the Chief Medical Examiner (SPR 20211971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/1971 Eric B. Hogberg, Esq. General Counsel Office of the Chief Medical Examiner Commonwealth of Massachusetts 720 Albany Street Boston, MA 02118 Dear Attorney Hogberg: I have received the petition of Ellen J. Collins appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2021, Ms. Collins requested a copy of an identified photo. On July 26, 2021, the Office provided a response. Unsatisfied with the Office’s response, Ms. Collins petitioned this office and this appeal, SPR21/1971, was opened as a result. 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, § 10A(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, § 10(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, § 10(b)(viii); see also 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 B. Hogberg, Esq. SPR21/1971 Page 2 August 17, 2021 The Office’s July 26th Response In the July 26, 2021 response, the Office cited Exemption (a) for withholding the requested record. The Office stated, “[i]t is the OCME's practice to only produce photographs for civil and criminal litigation purposes and/or when directed to by court order. Our governing statutes and regulations, namely G.L. c. 38 and 505 CMR 1, control the release of autopsy reports to the legal next of kin. However, this governing authority does not include the release of photographs to the next of kin.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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. 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. G. L. c. 38, § 2.

Eric B. Hogberg, Esq. SPR21/1971 Page 3 August 17, 2021 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 record under Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Collins is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ellen J. Collins