Mark Adams v. Office of the Chief Medical Examiner (SPR 20222575)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 28, 2022 SPR22/2575 Eric B. 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 Mark Adams 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.R. 32.08(1). On October 17, 2022, Mr. Adams requested: All emails, letters, notes, requests, communications of any kind to and from anyone at the OCME and their agent/affiliates from cataldo ambulance, Atlantic ambulance and… anyone associated with either group/company in regards to copies of autopsies for a peer review. This request should cover 1/1/2010 through today. The OCME provided a response on November 1, 2022. Unsatisfied with the OCME’s response, Mr. Adams petitioned this office, and this appeal, SPR22/2575, 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 agency or municipality 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) (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

Eric B. Hogberg SPR22/2575 Page 2 November 28, 2022 exemption or exemptions upon which the withholding is based…”); 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). The OCME’s November 1st response In its November 1, 2022 response, the OCME stated that “… [it] does not maintain requests for peer reviews in a separate searchable database. Any request for autopsy reports in accordance with a peer review under 505 CMR 1.07 will be located in the individual case file. Therefore, it would be near impossible and cost-prohibitive to manually search and review each case file from 2010 – present to locate requests.” Records in existence 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. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a call between a member of my staff and an OCME representative, the OCME stated that the request was overly broad. In particular, the twelve-year time period that Mr. Adams has included in his request is not feasible for the OCME to complete in a reasonable amount of time. The OCME requested that Mr. Adams narrow the time frame in his request or provide specific case numbers he would like the OCME to search for. Based on the above, it is unclear if the OCME possesses records responsive to the request. The OCME must clarify this matter. I encourage Mr. Adams and the OCME to communicate in order to facilitate producing records efficiently and affordably. Mr. Adams may wish to narrow the applicable time frame or include case numbers in order to enable the search to be processed. G. L. c. 66, § l0(a)(i). The OCME must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). To the extent possible, the OCME must provide responsive records on a rolling basis. Conclusion Accordingly, the OCME is ordered to provide Mr. Adams with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at

Eric B. Hogberg SPR22/2575 Page 3 November 28, 2022 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Mark Adams