Susannah Sudborough v. Office of the Chief Medical Examiner (SPR 20233106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2024 SPR23/3106 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 Susannah Sudborough, of MassLive, 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 December 11, 2023, Ms. Sudborough requested, “... a copy of the full autopsy report for [an identified individual] of ... Jackson Pond Road in Dedham.” The Office responded on December 20, 2023. Unsatisfied with the response, Ms. Sudborough petitioned this office and this appeal, SPR23/3106, 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. If there are any fees associated with a response a written, good faith estimate must be 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. SPR23/3106 Page 2 January 9, 2024 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. The Office’s December 20th response In its December 20, 2023 response, the Office stated, “[p]lease be advised that autopsy reports are not public records. Accordingly, the [Office] is denying your request 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 reports are not public, and G.L. c. 4, § 7, Twenty-sixth (c), the medical and privacy exemption to the public records law. See also Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132 (1989) (autopsy reports constitute exempt medical information). . . .” 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. G. L. c. 38, § 2 states in pertinent part as follows: 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 ... Nothing in this section shall be construed to prohibit the office of chief medical examiner from providing a copy of the autopsy report

Eric Hogberg, Esq. SPR23/3106 Page 3 January 9, 2024 of a decedent to the decedent’s surviving spouse, person in the first degree of consanguinity or, in the event there is no surviving spouse or person in the first degree of consanguinity, to the person entitled to receive the body. G. L. c. 38, § 2. Based upon the Office’s December 20, 2023 response, and as the record is restricted from disclosure in its entirety by the Legislature under G. L. c. c. 38, § 2, as it operates through Exemption (a), I find the Office has met its burden in responding to this request under the Public Records Law. See G. L. c. c. 38, § 2 (providing that these reports “shall not be deemed to be public records” except to those who are legally entitled to receive them). Where I find that the Office has met its burden under Exemption (a), I decline to opine on the applicability of Exemption (c) of the Public Records Law to withhold the requested record. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Susannah Sudborough