Judge orders state to turn over autopsy records in Banner lawsuit

After a yearlong legal battle, The Maryland Office of the Chief Medical Examiner must turn over complete autopsy reports to The Baltimore Banner.

Monday’s ruling ends a lawsuit filed by The Baltimore Banner against the medical examiner’s office when it refused to fill a public records request in 2022, though the state could elect to appeal.

The Banner’s Editor-in-Chief Kimi Yoshino said the judgment should send a clear message to other government agencies that public records laws must be upheld.

“The ruling is a major victory for government transparency, press freedom and the public’s right to know in Maryland,” Yoshino said. “The Banner will continue to fight whenever we see those rights being abused.”

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The Banner sued the state agency back in December 2022 after the medical examiner’s office refused to turn over key aspects of autopsy reports, such as toxicology reports and demographic information. Reporters Alissa Zhu and Nick Thieme sought out the data for a reporting project with The New York Times on the state’s opioid epidemic.

The medical examiner’s office argued that the toxicology reports and demographic information were medical information that was not part of the autopsy reports, and therefore, not subject to the state’s public records law.

“From the beginning, we felt we were entitled to what were clearly public records and the OCME, at every step, made it more difficult than it should have been to get these records,” Thieme said. “I think the reason why the OCME was so cavalier about their initial responses was because they didn’t expect any pushback.”

Thieme and Zhu spent hours interviewing sources, collecting records, and analyzing available public data. Eventually, the team discovered that OCME had for years released the type of information it was withholding from The Banner, as well as an email from a former custodian of records for OCME stating that toxicology reports and the cover pages that contain demographic data were part of autopsy reports.

With these key findings, OCME had no valid grounds to deny the records, said Michael Rothberg, The Banner’s media law attorney.

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“The only apparent reason for OCME to change its position is that The Banner was making the request,” Rothberg said. “They did not provide an explanation for treating The Banner differently than it had previously provided other members of the public.”

The Banner was represented in the litigation by Nicholas Mongelluzzo and Warren Hamel of Venable LLP.

In his ruling, Judge John S. Nugent agreed with The Banner’s legal team.

“The Banner is entitled to the same treatment as other requesters and the OCME has failed to offer a sufficient justification for not providing the electronic data to The Banner,” Nugent wrote in his order of summary judgment.

Demanding access to records has been a cornerstone of The Banner’s mission, Yoshino said. When The Banner first launched, reporters warned her that some city and state agencies had become comfortable withholding records from reporters. Yoshino knew The Banner could help change that.

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This lawsuit is one of several Banner efforts to champion public information. The Banner is currently resisting an effort by defense counsel for former Baltimore State’s Attorney Marilyn Mosby to seal records in her fraud trial. Similarly, for most data stories, The Banner releases the methodology and computer code used to recreate its data analysis, allowing for transparency and public access to the data.

To Rothberg, The Banner’s tenacity won’t just ensure journalists get records, but also that the public is better informed.

“Baseless denials of public information requests keep the public in the dark about the functioning of government agencies on important issues, like the opioid epidemic,” Rothberg said. “In this case, The Banner wasn’t willing to let those stories go untold.”

Brenna Smith

brenna.smith@thebaltimorebanner.com