Mark Adams v. Office of the Chief Medical Examiner (SPR 20222903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2903 Eric B. Hogberg, Esq. General Counsel Office of the Chief Medical Examiner 720 Albany Street Boston, MA 02118 Dear Attorney 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. Subsequently, Mr. Adams modified his request to cover the time period 1/1/2014 through 3/31/2019. Previous appeal This request was the subject of a previous appeal. See SPR22/2575 Determination of the Supervisor of Records (November 28, 2022). The OCME provided a response on December 14, 2022. Unsatisfied with the response, Mr. Adams petitioned this office and this appeal, SPR22/2903, 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

Eric B. Hogberg, Esq. SPR22/2903 Page 2 January 5, 2023 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 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 December 14th response In its December 14, 2022 response, the OCME stated the following: This request remains unduly burdensome and cost prohibitive. The OCME did conduct an electronic search through all agency emails…The only responsive records that were identified were related to your son’s case. Therefore, no additional electronic records were located…the OCME does not maintain requests for autopsy reports for peer reviews in a separate searchable database. To locate autopsy reports for peer reviews the OCME would have to search the individual case files to determine whether any such request was made. The OCME further stated that “[i]f you are able to provide individual case names or case numbers, the OCME would be in a better position to search for responsive records.” 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). I find it is unclear whether the records requested exist and are in the OCME’s possession. 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 provide individual case names or case numbers for the records he is seeking 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

Eric B. Hogberg, Esq. SPR22/2903 Page 3 January 5, 2023 efficiently and affordably). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the OCME is ordered to provide Mr. Adams with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Mr. Adams may appeal the substantive nature of the OCME’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mark Adams