The Baltimore Banner on Thursday sued the Maryland Office of the Chief Medical Examiner, alleging that the agency is improperly denying access to key portions of autopsy reports that are public records under state law — despite providing these documents in the past.

For more than three months, reporters from The Banner have been seeking autopsy records for reporting about the opioid epidemic in Maryland. But the medical examiner’s office has “frustrated the letter and the spirit of the law,” the lawsuit asserts, by arbitrarily refusing to turn over critical portions of these documents — including pages that document toxicological findings and contain information about the age, race and gender of people who fatally overdosed, and the locations where they were found.

The lawsuit was filed in Baltimore Circuit Court and contains two counts: improper denial of access to records and improper delay in production of records.

In the 18-page complaint, The Banner’s litigation attorneys, W. Warren Hamel and Nicholas Mongelluzzo of the Venable law firm, are asking a judge to declare that the office has violated the Maryland Public Information Act, order the timely release of the full autopsy reports in an electronic format and award costs, including attorney fees.

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“These documents are critical to helping us understand and report on the opioid epidemic, which is a public health crisis that’s claiming thousands of lives each year in Maryland,” said Kimi Yoshino, The Banner’s editor in chief. “These are not classified state secrets. We’re asking for basic public information that has been routinely provided to the public for years.”

In an email, Chase Cook, a spokesperson for the Maryland Department of Health, said it does not comment about active litigation.

The lawsuit recounts the effort to obtain these records:

On Sept. 6, Nick Thieme, a data journalist at The Banner, filed a Maryland Public Information Act request for electronic copies of all autopsy reports completed in the last 10 years.

“The Banner could use these records to uncover racial and income disparities in the medical response to overdoses, to understand where overdoses are most common in the city and where resources could be used to save lives, to understand trends in what kinds of drugs are killing residents and to determine what other life events increase the risk of overdose,” Thieme said.

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Dr. Pamela Southall, Maryland’s interim chief medical examiner, responded with a letter on Sept. 22 and wrote that the request covered about 58,000 autopsy reports. She estimated that it would take the agency “ at least 3,840 hours” to provide them.

Southall asserted that the office only started digitally storing autopsy reports in 2020. She stated that the agency would turn over the documents “on a rolling basis,” providing electronic documents first and providing an explanation if it withheld any records.

Five days later, Michael Rothberg, The Banner’s counsel, sent a letter seeking clarification, noting that the news organization understood that the Office of the Chief Medical Examiner had provided electronic copies of autopsy data to others before 2020.

Rothberg stated that, given that autopsy reports are indisputably public records, the time estimate to produce them was excessive. He also asked for a date when the office would fulfill the request.

When Southall provided the first batch of records — 230 autopsy reports with dates as early as 2012 — via email on Oct. 4, they did not include the cover pages that contain information such as residence, date and address of the incident.

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So on Oct. 7, Rothberg sent a follow-up letter.

Maryland Assistant Attorney General Carla Boyd responded on Oct. 12, claiming that the cover pages and summaries were not part of the autopsy reports but “document[s] developed in connection with conducting the autopsy.”

Boyd provided an attorney general opinion letter from 2003 that she claimed supported her position, which stated that autopsy photos were not subject to disclosure under the open records law.

On Nov. 1, Rothberg told the office that the cover pages were labeled as part of the autopsy report and contained medical findings from the examination.

The Banner, he said, had discovered that the agency had also excluded toxicology results from the reports that it produced — even though they contained medical findings. The office’s own website says that autopsy reports it gives to the public “will include toxicology findings.”

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While the legal arguments continued, Alissa Zhu, immigration reporter at The Banner, set up an appointment to look at an autopsy report from 2012 in person.

Zhu was able to come in that same day and view the original autopsy report, which included the cover page and toxicology results. Those are the same type of documents that the office did not turn over in response to The Banner’s public records request.

When Zhu asked the next day to look at five additional autopsy reports, the Office of the Chief Medical Examiner delayed scheduling an appointment for several days.

Thieme later went to inspect the documents, and office staff members gave him copies of the autopsy reports that did not include the cover page. He asked to see them, but an employee told him that the Maryland Office of the Attorney General had instructed the chief medical examiner to not provide the cover pages to the public.

Rothberg made further attempts to reach an amicable resolution, but those were futile. The Office of the Chief Medical Examiner reported it would only provide the “official autopsy report” and stated that The Banner would have to ask for mediation or “seek judicial review” to dispute its response.

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In 2020, the last year for which annual reports are available from the Maryland Vital Statistics Administration, Baltimore experienced 1,028 deadly overdoses — more than 2 1/2 times the number of homicides.

Read the lawsuit

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