Michael A. Montel v. Hampden County District Attorney's Office (SPR 20242884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2884 Lee Baker, Esq. Assistant District Attorney Records Access Officer Hampden County District Attorney’s Office 50 State Street Springfield, MA 01102-0559 Dear Attorney Payne: I have received the petition of Michael A. Montel appealing the nonresponse of the Hampden County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2024, Mr. Montel requested: [A] complete copy of the chief medical Examiner’s office case file in the matter of COMM. V. MONEL, MICHAEL ANTHONY docket NO. 9179CR01079. This public records request includes, but is not limited Autopsy report(s), Death Certificate(s), External notes, Internal notes, Diagrams, Sketches, Toxicology reports, Narrative notes, photographs, letters, Affidavits, Hospital records, E-mails, and any other documents created or received by this office related to the cause of death. The Office responded on September 6, 2024, withholding records responsive to the request under Exemption (a) and Exemption (c) of the Public Records Law. Unsatisfied with the Office’s response, Mr. Montel appealed, and this case, SPR24/2884, was opened as a result. Status of Requestor In his appeal petition, Mr. Montel states that “I am the defendant on the matter… [the statute] clearly allows defendants who are charged with homicide to request a copy of the autopsy report…” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Montel’s status will play no role in a determination as to whether the 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

Lee Baker, Esq. SPR24/2884 Page 2 November 4, 2024 record should be disclosed or redacted under the Public Records Law. 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. Att’y 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 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. Current Appeal In his appeal petition, with regard to Exemption (a) and G. L. c. 38, § 2, Mr. Montel states: The HDAO erroneously denied my public records request. First, the Globe’s case is not applicable to me. The Globe was requesting medical records, as a third party, from a criminal case that the Globe was not a party to the case. To the contrary, I am the defendant on the matter of Comm. V. Montel, Michael A. [therefore] makes me ‘legally entitled to receive them.’ See c. 38, § 2… Furthermore, [c. 38, § 7] clearly allows defendants who are charged with homicide to request a copy of the autopsy report and all relevant documentations ‘in cases of homicide, after indictment and arraignment, and while the defendant is in custody or subject to the jurisdiction of the court upon his request, a copy of the official autopsy report… The Office’s September 6th Response In its September 6, 2024 response, the Office claims to withhold the responsive records pursuant to Exemption (a), citing G. L. c. 38, § 2, and also pursuant to Exemption (c) of the Public Records Law.

Lee Baker, Esq. SPR24/2884 Page 3 November 4, 2024 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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. Under Exemption (a), the Office cites G. L. c. 38, § 2, which provides in relevant part: 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 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. In its September 6, 2024 response, the Office states, “Autopsy reports and related materials are exempt from disclosure as public records…” Given that such reports are the types of records contemplated under the statute cited above, I find that the Office may properly withhold the autopsy report under G. L. c. 38, § 2, as it

Lee Baker, Esq. SPR24/2884 Page 4 November 4, 2024 operates through Exemption (a). Where 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 autopsy report. Further, in his appeal, Mr. Montel states that his request is for items beyond the autopsy report. Based on his appeal and the Office’s response, it is unclear if the Office possesses additional records, aside from the autopsy report, that is 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 additional 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). The Office must clarify. Conclusion Accordingly, the Office is ordered to provide Mr. Montel 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael A. Montel