Greta Jochem v. Hampden County Sheriff's Department (SPR 20253254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 20, 2025 SPR25/3254 Theresa S. Finnegan, Esq. Records Access Officer Hampden County Sheriff's Department 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Greta Jochem, of The Republican/MassLive.com/El Pueblo Latino, appealing the response of the Hampden County Sheriff’s Department (Department) 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/3103 Determination of the Supervisor of Records (November 4, 2025). In my November 4th determination, I closed SPR25/3103 in light of the Department providing Ms. Jochem with a supplemental response on November 3, 2025. Unsatisfied with the Department’s response, Ms. Jochem petitioned this office, and this appeal, SPR25/3103, was opened as a result. Subsequent to the opening of this appeal, the Department provided further responses on November 5, and November 14, 2025. 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. 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

Theresa S. Finnegan, Esq. SPR25/3254 Page 2 November 20, 2025 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 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 an email to the Department and this office on November 13, 2025, Ms. Jochem indicates that she does not object to the redactions in the incident reports, and asks of this office, “for the log of deaths, is it possible . . . to weigh in on whether or not peoples’ names should be redacted?” The Department’s Responses In its previous September 17, 2025 response, the Department provided a responsive record in redacted form, and described the record as follows: [T]he record responsive to your request for Incarcerated Individual deaths from 2022 to present. The enclosed table includes name, location and cause of death (COD) as listed on the death certificate. Please note that for those records that do not list a COD, the cause and manner have not yet been received from the Office of the Chief Medical Examiner. In its November 3, 2025 response, the Department further explains the following: In response to your request we provided our death log in redacted form, leaving out the inmates names. The log contained the date of admission, the date of death, and the cause of death for each inmate. We redacted the names based upon the statutory exemption and the privacy exemption. In its November 3rd response, the Department goes on to argue the following: In the interests of the privacy rights of the families of the deceased, we have redacted the names from the list. Information relating to a specific individual that is highly personal in nature and may constitute an unwarranted invasion of personal privacy is exempted under the public records law. M.G.L. c. 4 § 7 (26) (c). Additionally, identifying these individuals is also a violation of HIPPA laws which forbid against the sharing of health related information. See 45 CFR 160.103. Thus, under M.G.L. c. 4 § 7 (26) (a) they are exempted from public disclosure by statu[t]e. More specifically, General Laws c. 4, § 7 (26) (c), exempts “personnel and medical files or information” from the definition of public record.

Theresa S. Finnegan, Esq. SPR25/3254 Page 3 November 20, 2025 Unlike CORI, where the prohibition on dissemination is lifted upon death, medical records privacy survives the death of the person whose records are sought. See, i.e, Opinion of the Supervisor of Public Records, SPR88/210; see also, Opinion of the Supervisor of Public Records, SPR15/058; G.L. c. 66A, §1. Pursuant to G.L. c. 66A, § 1, medical/mental health records may only be inspected by the patient to whom they relate, or after the patient’s death, by “the duly appointed executor or administrator of the deceased person’s estate or the attorney for such executor or administrator upon delivery of a written authorization from such executor or administrator . . . .” G.L. c. 111, § 7. Finally, the CMRs prohibit the disclosure of any such medical information under 105 CMR 205, Minimum Standards Governing Medical Records and the Conduct of Physical Examinations in Correctional Facilities, “[prison] medical staff shall maintain and use medical records in a manner which ensures the confidentiality of the information contained therein. Only those persons who need access to the record in order to provide medical services to the inmate or fulfill statutory obligations, and those persons specifically authorized by the inmate to see the record, shall have access to the records and information in them.” See 105 CMR 205.504, Confidentiality. 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.

Theresa S. Finnegan, Esq. SPR25/3254 Page 4 November 20, 2025 Health Insurance Portability and Accountability Act (HIPAA) In its September 17th response, under Exemption (a), the Department cites the Health Insurance Portability and Accountability Act and its regulations. See 42 U.S.C. § 1320d et seq.; see also 45 C.F.R. §§ 160, 164. HIPAA sets forth rules and regulations for the use and disclosure of protected health information by covered entities. The applicable regulation is part of the implementation of HIPAA, and provides the following definitions: Definitions. . . . Covered entity means: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. . . . 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 (iv) Regarding a person who has been deceased for more than 50 years. 45 C.F.R. § 160.103. Medical Records in Correctional Facilities The Department also cites 105 C.M.R. 205.504, which establishes standards for medical records in correctional facilities, and provides in pertinent part as follows: The medical staff shall maintain and use medical records in a manner which ensures the confidentiality of the information contained therein. Only those persons who need access to the record in order to provide medical services to the inmate or fulfill statutory obligations, and those persons specifically authorized by the inmate to see the record, shall have access to the records and information in

Theresa S. Finnegan, Esq. SPR25/3254 Page 5 November 20, 2025 them. The Department of Public Health staff shall have access to the records and information in them for the purpose of determining compliance with 105 CMR 205.000 and shall maintain the confidentiality of records relating to individual inmates. 105 C.M.R. 205.504. Exemption (c) Exemption (c) permits the withholding of: 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). First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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. This clause does not protect all data relating to specifically named individuals. Rather, 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.

Theresa S. Finnegan, Esq. SPR25/3254 Page 6 November 20, 2025 App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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. Based on the Department’s response, I find that the Department has not met its burden of specificity to redact the names of the deceased individuals under Exemption (c). The Department has not shown that the redacted information constitutes intimate details of highly personal nature, nor that disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources or how any privacy interest is not outweighed by the public interest in obtaining this information. PETA, 477 Mass. at 292. Additionally, where the content of death certificates, including “names of deceased ... and ... disease or cause of death” is prescribed by statute, I find that the Department has also not met its burden to redact the names of the deceased individuals within the responsive record under either HIPAA or 105 C.M.R. 205.504 as they operate through Exemption (a) of the Public Records Law. See G. L. c. 46, § 1; see also Globe Newspaper Co. 404 Mass. at 136 (“The Legislature could have rendered autopsy reports made pursuant to G. L. c. 38, § 6, public records as it has done with respect to death certificates (G. L. c. 46, §§ 1, 9)…”). Conclusion Accordingly, the Department is ordered to provide Ms. Jochem 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. Ms. Jochem may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem