Grace Ferguson v. Office of the Chief Medical Examiner (SPR 20230630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0630 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 Grace Ferguson, of the New Bedford Light, 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 March 17, 2023, Ms. Ferguson requested, “... all notices of resignation received by the Office in April 2021.” The Office responded on March 31, 2023. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR23/0630, 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 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. 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. SPR23/0630 Page 2 April 14, 2023 The Office’s March 31st response In its March 31, 2023 response, the Office cited Exemption (c) to withhold the records. The Office then stated that there are no records responsive to the request. The Office explained that the “... request includes all notices of resignation received by the Office of the Chief Medical Examiner in April 2021. As a preliminary matter, please be advised that the requested records constitute personnel information not subject to public disclosure pursuant to G.L. c. 4, § 7, Twenty-sixth (c). . . . These constitute the core categories of personnel information that are ‘useful in making employment decisions regarding an employee.’ Notwithstanding the foregoing, there are no records responsive to your request.” Current appeal In her appeal, Ms. Ferguson claims “...in the agency’s FY21 annual report, it states that “[i]n April 2021, the two medical examiners who staff this [the Sandwich] office provided notice of their resignation, effective July 31, 2021.” In light of the above, it is unclear if the Office possesses any 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). 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). To the extent that the requested 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). Conclusion Accordingly, the Office is ordered to provide Ms. Ferguson 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. Ms. Ferguson may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson