Luis Fieldman v. Northampton, City of - City Clerk (SPR 20191059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2019 SPR19/1059 Pamela M. Powers City Clerk City of Northampton 210 Main Street Northampton, MA 01060-3148 Dear Ms. Powers: I have received the petition of Luis Fieldman of the Daily Hampshire Gazette appealing the response of the City of Northampton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 11, 2019, Mr. Fieldman requested the "[d ]eath certificate for 5 year-old, Easthampton resident of Treehouse Community, on or around Dec.21st, 2018. Name unknown." In its January 25, 2019 response, the City denied his request claiming the responsive record is exempt from disclosure pursuant to G. L. c. 46, § 2A as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Previous appeal This request was the subject of a previous appeal. See SPRl 9/0236 Determination of the Supervisor of Records (February 20, 2019). In my February 20th determination, I found the City's response did not contain the specificity required in a denial of access to public records; therefore, the City did not satisfy its burden in responding to the records request. The City provided another response in support of its G. L. c. 46, § 2A claim in a letter dated February 26, 2019. Unsatisfied with the City's February 26th response, Mr. Fieldman petitioned this office and this appeal, SPR19/I059, 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, § lOA(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Pamela M. Powers SPR19/1059 Page 2 June 11, 2019 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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Attorney 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. The statute provides in relevant part: Examination of records and returns of children born out of wedlock or abnormal sex births, or fetal deaths, or of the notices of intention of marriage and marriage records in cases where a physician's certificate has been filed under the provisions of section twenty A of chapter two hundred and seven, or those of persons born out of wedlock, or of copies of such records in the department of public health, shall not be permitted except upon proper judicial order, or upon request of a

Pamela M. Powers SPR19/1059 Page 3 June 11, 2019 person seeking his own birth or marriage record, or his attorney, parent, guardian, or conservator, or a person whose official duties, in the opinion of the town clerk or the commissioner of public health, as the case may be, entitle him to the information contained therein, nor shall certified copies thereof be furnished except upon such order, or the request of such person ... G. L. C. 46, § 2A. In its February 26th response, the City indicates that "the Northampton Clerk's Office has no record that is responsive to [Mr. Fieldman's] request;" however, "[t]he Clerk's Office has a death certificate for a 5-year old at or around the date specified." The City indicates that "[a]ccording to the death certificate, that minor individual was not a resident of the Tree House Community or of the City of Easthampton." The City indicates that the death certificate in its possession is that of "a minor child born out of wedlock;" therefore, "is subject to the provisions of M.G.L. c. 46, § 2A." The City concludes that based on the statute, "the death certificate is not a public record ... and cannot be disseminated absent a court order." Although the City indicates it has a death certificate of "a minor child born out of wedlock," I find the City must clarify whether it possesses the responsive death certificate. This office encourages Mr. Fieldman and the City to communicate to facilitate determining whether the City possesses the requested record. 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, § lO(a)(ii); G. L. c. 66, § 1O (b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Mr. Fieldman a response 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 this response to this office at pre@sec.state.ma.us. Sincerely, Supervisor of Records cc: Luis Fieldman