Matthew Rocheleau v. New Bedford, City of - Clerk's Office (SPR 20200740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2020 SPR20/0740 Dennis W. Farias City Clerk City of New Bedford City Hall 133 William Street, Room 118 New Bedford, MA 02740 Dear Mr. Farias: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the City of New Bedford (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 City’s response, Mr. Rocheleau appealed and SPR20/0740 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). 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

Dennis W. Farias SPR20/0740 Page 2 May 20, 2020 City’s April 24th response In its April 24th response, the City states, “Mass General Law Chapter 46, section 29 requires City Clerks to attest our copies of records of deaths. Therefore I am required to affix a seal to the record and this process cannot be done electronically. The fee associated with producing a certified record is $15.00 per certificate.” On May 15th, the City through its Associate City Solicitor, Elizabeth M. Treadup, Esq. sent a supplemental response in which the statute G. L. c. 46, § 29 was cited and G. L. c. 262, § 34 regarding fees was identified. Burden of Specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ...”); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City’s response did not contain the specificity required in a denial of access to public records. Instead, the City cited a statute without claiming any exemption(s) in the Public Records Law in support. Accordingly, I find that the City has not established how it can withhold the records at issue in this appeal. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(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 as soon as is practicable. 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