Kay Lazar v. Department of Public Health (SPR 20201155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2020 SPR20/1155 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Kay Lazar of the Boston Globe appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 9, 2020, Ms. Lazar requested: “three death certificates – the ones the state is listing as probable COVID-19 deaths on March 10, March 13, and March 26 [and] … all records made or received by the Department evidencing those deaths and … all records relied upon by the Department in disclosing that those particular death had occurred. … include the following information with respect to each probable death: Name, DOD, Place of Death, City or Town where decedent resident, Cause of Death listed on death certificate, etc.” Unsatisfied with the response, Ms. Lazar appealed and SPR20/1155 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 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

Helen Rush-Lloyd SPR20/1155 Page 2 July 24, 2020 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). The Department’s June 23rd response In its June 23rd response, the Department stated, “[i]n order to locate the records … the Department’s Registry of Vital Records and Statistics (RVRS) would require additional identifying information, specifically the names of the deceased individuals.” The Department further asserted, “RVRS only issues certified copies of vital records (birth, death, marriage) to minimize the risk of fraud, identity theft, and improper use, as required by state law. 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.’” 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 June 23rd response, the Department 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

Helen Rush-Lloyd SPR20/1155 Page 3 July 24, 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 Department denied Ms. Lazar's request without demonstrating how Exemption (a) of the Public Records Law supports the withholding of the responsive records in their entirety. It is unclear how these laws specifically, or by necessary implication, permit the Department to withhold the records requested by Ms. Lazar. 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 Department must produce any nonexempt, segregable portions of the public records. G. L. c. 66, §10(a). Based upon the Department’s response, I find that the Department has not met its burden to withhold the responsive records under Exemption (a). Order Accordingly, the Department is ordered to provide Ms. Lazar with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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: Kay Lazar