Greta Jochem v. Franklin County Sheriff's Department (SPR 20253102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2025 SPR25/3102 Captain Jason Yuryan Records Department Franklin County Sheriff’s Office 160 Elm Street Greenfield, MA 01301 Dear Captain Yuryan: I have received the petition of Greta Jochem, of The Republican/MassLive.com/El Pueblo Latino, appealing the response of the Franklin County Sheriff’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 September 3, 2025, Ms. Jochem requested, “[a]ny records dated Jan. 1, 2022 to present day about deaths of inmates in custody, including but not limited to incident reports and causes of death.” The Office provided a response on September 17, 2025. Unsatisfied with the Office’s response, Ms. Jochem petitioned this office and this appeal, SPR25/3102, 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

Captain Jason Yuryan SPR25/3102 Page 2 November 5, 2025 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 her appeal, Ms. Jochem states, “[m]y original request was not only for the log of deaths in custody. I asked for any records related to deaths, including incident reports. The records officer did not detail what records in addition to the death log it possesses and that it is withholding. If a record officer withholds records, they are required to detail what documents responsive to the request exist and how many there are.” The Office’s September 17th Response In its September 17, 2025 response, the Office provided a redacted death log and cited Exemptions (a) and (c) of the Public Records Law in support of the redactions and the withholding of other responsive records. In its response, the Office redacted the name, date of birth and cause of death. 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, 545-46 (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.

Captain Jason Yuryan SPR25/3102 Page 3 November 5, 2025 In its response, the Office states, “[w]ith respect to the Death Log and as to requests for which there is additional responsive documentation, the Office is withholding responsive records and/or information pursuant to HIPAA (42 U.S.C. § 1320d, et seq.) as it operates through Exemption (a) of the Public Records Law ...” The Office further states, “... the remainder of the responsive documentation is protected health information, which survives death...[.]” Health Insurance Portability and Accountability Act (HIPAA) HIPAA sets forth rules and regulations for the use and disclosure of protected information by covered entities. The applicable regulation is part of the implementation of HIPAA, and provides in relevant part: Definitions … Covered entity means: … (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. … Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual … Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and

Captain Jason Yuryan SPR25/3102 Page 4 November 5, 2025 (iv) Regarding a person who has been deceased for more than 50 years. 45 C.F.R. § 160.103. Based on the Office’s response, it is unclear how the Office is a covered entity as defined by HIPAA. Also, it is not clear how the redacted information constitutes protected health information as contemplated by HIPAA and its associated regulations. The Office must clarify these matters. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13.; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292.

Captain Jason Yuryan SPR25/3102 Page 5 November 5, 2025 In its response, the Office indicates, “[w]ith respect to the Death Log and as to requests for which there is additional responsive documentation, the Office is withholding responsive records and/or information pursuant to ... Exemption (c) to protect the unwarranted invasion of privacy of individuals ...” Based on the Office’s response, it is unclear how the redacted information and the withheld records, including incident reports, constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. As a result, I find that the Office did not meet its burden of specificity in redacting the information and withholding additional records under Exemption (c) of the Public Records Law. Further, based on the Office’s response, it remains uncertain what records have been withheld. The Office is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Office must identify the categories of records it has in its possession that it is withholding under Exemptions (a) and (c), as well as provide specific reasons for such withholding. Conclusion Accordingly, the Office is ordered to provide Ms. Jochem with a response to her 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 the response to this office at pre@sec.state.ma.us. Ms. Jochem may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem