Alex F. Scesny v. Office of the Chief Medical Examiner (SPR 20222911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2911 Eric 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 Alex Scesny appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2022, Mr. Scesny requested “any and all records which … [p]ertain[] to an [i]ncident at the Office of the Chief Medical Examiner, performed on [specific dates in 1996.]” Previous Appeal This request was the subject of a previous appeal. See SPR22/2520 Determination of the Supervisor of Records (November 16, 2022). In my November 16th determination, I closed the administrative appeal when I learned the Office provided a response to Mr. Scesny dated November 7, 2022. Unsatisfied with the Office’s response, Mr. Scesny petitioned this office and this appeal, SPR22/2911, 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); 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 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, Esq. SPR22/2911 Page 2 January 5, 2023 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. The Office’s November 7th Response In its November 7, 2022 response, the Office states: Your request includes records from Massachusetts State Police (MSP) Case No. M96-907. Since your request includes specific records from the MSP, I recommend submitting your request to the MSP for consideration, which is a separate entity from the OCME. Additionally, your request references OCME Case No. 96-3099, but does not specifically request those autopsy records. Therefore, to the extent that you are requesting autopsy records, the OCME is denying your request at this time. Autopsy reports are not public records pursuant to G.L. c. 4, § 7, Twenty-sixth (a), specifically, the statutory exemption set forth in G.L. c. 38, § 2, which states that autopsy records are not public…. Current Appeal In his appeal, Mr. Scesny asserts: I write to make further appeal from the record custodian’s response. I object to the response to the extent that: The Office of the Chief Medical Examiner (OCME) claims that the records I, (Alex Scesny) am requesting is actually a record from the Massachusetts State Police (MSP), thereby suggesting that I should submit my request to the MSP. That being said, I did submit a request to the MSP and they said that the record I was seeking/requesting was a record of the OCME and I should submit my request to the OCME. Based on the Office’s response, in conjunction with Mr. Scesny’s appeal, it is unclear if the Office possesses records responsive to the request. 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). To the extent that records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide Mr. Scesny with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Eric Hogberg, Esq. SPR22/2911 Page 3 January 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Alex Scesny