Matthew Rocheleau v. Fitchburg, City of - City Clerk (SPR 20200772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2020 SPR20/0772 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…).” Previous appeal This request was the subject of a previous appeal. See SPR20/0643 Determination of the Supervisor of Records (April 21, 2020), I closed SPR20/0643 by ordering the City to provide Mr. Rocheleau with a written response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. The City provided a response on May 1, 2020. Unsatisfied with the response Mr. Rocheleau appealed and SPR20/0772 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 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 SPR20/0772 Page 2 May 27, 2020 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 May 1th response In its May 1st response, the City asserted it, “reserves the right to stand by its prior response.” In its prior response, the City claimed the records were exempt pursuant to G. L. c. 4, §7(26)(a). 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 support of its position that the requested records are exempt, the City cited, “G. L. c. 46 §19C entitled Authentication of copies of birth, marriage and death records, use of evidence; G. L. c. 46 §29, entitled Attestation of certificates, G. L. c. 46 §18 entitled Script used on forms; state standards for uniformity, security, materials, devices and preservation.” Finally the City asserted that “G. L. c. 46, §12, 17-17D [require] copies to be certified.” 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. -------------

Mary de Alderete SPR20/0772 Page 3 May 27, 2020 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). Despite the City’s response, it remains unclear how the requested information can be withheld under Exemption (a). In particular, the City has not demonstrated that the statutes cited either specifically or by necessary implication exempt the requested records from disclosure under Exemption (a). In Its response, the City offered to create new records that would set out the deaths, dates or birth, dates of death, and the stated causes of death. I encourage Mr. Rocheleau and the City to communicate in order to facilitate producing records efficiently and affordably. The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). 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