Matthew Rocheleau v. Fitchburg, City of - City Clerk (SPR 20200643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2020 SPR20/0643 Mary de Alderete City Clerk City of Fitchburg 166 Boulder Drive, Suite 108 Fitchburg, MA 01420 Dear Ms. De Alderete: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 7, 2020, Mr. Rocheleau requested, “[a]ny and all death certificates for deaths that occurred between March 1, 2020 and present (Note: Non- certified copies or abstract copies are fine…).” Unsatisfied with the response, Mr. Rocheleau appealed and SPR20/0643 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 town 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). City’s April 8th response In its April 8th response, the City asserts, “[t]he Registry of Vital Records and Statistics has advised us to only issue certified copies of vital records (birth, death, marriage) and 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

Mary de Alderete SPR20/0643 Page 2 April 21, 2020 therefore, electronic or draft copies may not be disseminated. Copies of individual vital records are exempt from disclosure as public records pursuant to G. L. c. 4, § 7(26)(a) which applies to records ‘specifically or by necessary implication exempt from disclosure by statute’. Specifically, G. L. c. 46 § 19C (use of the seal of the Department) and Chapter 327 of the Acts of 2010 (State Registrar required to take reasonable action to prevent and control identity theft, fraud and improper use) require the seal of the Department of Public Health and security measures on paper copies to minimize the risk of fraudulent or improper use of such 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its April 11th response, the City cited, G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010, which in pertinent part state as follows: The state registrar shall use the seal of the department of public health for the purpose of authenticating copies of birth, marriage and death records, and copies of such records when certified by him and authenticated by said seal, shall be evidence like the originals. G. L. c. 46, § 19C.

Mary de Alderete SPR20/0643 Page 3 April 21, 2020 Records transmitted by the town clerk under section 12 and sections 17 to 17D, inclusive, shall be written in legible hand, typewritten, printed using an electronic format approved by the state registrar or printed using the centralized, automated database operated by the state registrar pursuant to section 32. All forms and formats shall have the prior approval of the state registrar and shall meet state standards for uniformity, security, materials, devices and preservation. Section 3 of Chapter 327 of the Acts of 2010. The City denied Mr. Rocheleau's request without demonstrating how Exemption (a) of the Public Records Law supports the withholding of the responsive records in its entirety. It is unclear how these laws specifically, or by necessary implication, permit the City to withhold the records requested by Mr. Rocheleau. Further, the City did not indicate whether it could extract responsive data from a database in its possession and present the information in abstract format, as requested by Mr. Rocheleau. The City must clarify these issues. Burden of Specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; see also Reinstein v. - - - Police Comm'r of Boston, 378 Mass. 281, 289-90; (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must produce any nonexempt, segregable portions of the public records. G. L. c. 66, §10(a). Based upon the City’s response, I find that the City has not met its burden to withhold the responsive records under Exemption (a). Order Accordingly, the City is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau