Alec Ferretti v. Department of Public Health (SPR 20241421)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2024 SPR24/1421 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 Alec Ferretti appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 24, 2024, Mr. Ferretti requested the following: The vital records index pdfs that are listed in [a specified] file directory, namely the birth indexes 1931-1995, marriage indexes 1931-1991, divorce indexes 1952- 1986, and deaths indexes 1931-1990. The Department responded on May 8, 2024, providing numerous responsive records, and claiming others are exempt from disclosure under G. L. c. 46, § 13(h) and G. L. c. 66A, as they operate through Exemption (a) of the Public Records Law, and also under Exemption (c). See G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Mr. Ferretti appealed, and this case 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 agency or municipality 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); 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 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 SPR24/1421 Page 2 May 24, 2024 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Ferretti states that he is “willing to withdraw the request for the birth indexes. However, [he is] appealing the denial of access to marriage and divorce indexes, as their withholding was improper.” Mr. Ferretti further contends the following: Marriage and divorce records are public records. Anyone can request a marriage record from the Registry or from the town in which the marriage occurred. Divorces are not only public records pursuant to statute, but have a centuries-old common law precedent of being public records. . . . Furthermore, in this request, [he is] seeking scans of indexes which are already available to the public, not a massive database with which the public cannot currently interface. Additionally, many of the records subject to this appeal were given to a library by the DPH. See the catalog for the New England Historic and Genealogical Society. The Department’s May 8th Response In its May 8, 2024 response, the Department provides “the death file indexes from the year 1931 to 1990,” and states that it is withholding the “birth, marriage and divorce indexes” pursuant to Exemptions (a) and (c) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c). 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

Helen Rush-Lloyd SPR24/1421 Page 3 May 24, 2024 restricted. See Att’y 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. Fair Information Practices Act (FIPA) In its May 8th response, under Exemption (a), the Department cites G. L. c. 66A, also known as FIPA, for withholding responsive records. FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (“determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. G. L. c. 46, § 13(h) Additionally, in its May 8th response, the Department cites G. L. c. 46, § 13(h), which provides in pertinent parts as follows: The clerk or state registrar shall on forms provided by the state registrar complete an amended, corrected, or supplemented record of birth, death, acknowledgment or adjudication of paternity, or marriage. The original record of birth, death, acknowledgment or adjudication of paternity, or marriage and all returns and index entries in whatever format they are maintained shall be identified as corrected, amended, or supplemented. . . . Except as provided in the following two sentences, said clerk or other official responsible for the keeping of such records shall not release said information contained in such original record except upon proper judicial order, or when

Helen Rush-Lloyd SPR24/1421 Page 4 May 24, 2024 requested by a person seeking his own birth or marriage record, or by a person whose official duties, in the opinion of the state registrar or town clerk, entitle him to the information contained in the original record. Death records which are corrected, amended or supplemented after January 1, 1996, as well as the affidavit of the party seeking the correction, amendment, or supplementation of the death record and all documentary evidence or related records submitted in support of such affidavit shall not be restricted, except for records or other items of documentary evidence submitted in support of the affidavit which are considered medical records for purposes of paragraph (c) of clause twenty-sixth of section 7 of chapter 4 are restricted by section 2A of this chapter, or are restricted by judicial order. If the original record has been amended following adoption in accordance with this section, the clerk or state registrar shall issue information contained in the original record only upon receipt of an order of the probate court for the county in which said adoption was granted or in accordance with section 2B, or in the case of an adoption granted outside the commonwealth, upon order of the probate court for the county in which said birth occurred or in accordance with said section 2B, instructing said clerk or state registrar to release the information contained in such original record. Evidence contained in the adoption record of a parent’s willingness to provide information about her identity to the adopted person shall, except in extraordinary circumstances, be considered sufficient evidence to warrant the granting of an order for release of the information contained in the birth certificate registered prior to adoption. If the corrected, amended or supplemented record is that of a person who has acquired the status of a child born in wedlock, or whose record has been amended through an adoption decree, or whose record has been amended through addition of the name of the father, the clerk or state registrar shall not indicate on such copy that the record has been corrected, amended or supplemented. G. L. c. 46, § 13(h) In its May 8th response, under the statute cited above, the Department argues the following: The disclosure of comprehensive electronic vital records files could be used to compare vital record data over time to identify individually identifiable records that are restricted from disclosure by law and constitute intimate details of a highly personal nature. For example, when a child is adopted, the birth certificate is amended to reflect the names of the adopting parents, and the amended birth certificate does not disclose the names of the original parents. This private information, as well as other types of changes to a birth certificate including gender confirmation, is specifically protected by statute. See G.L. c. 46, s. 13(h) (“... said clerk or other official responsible for the keeping of such records shall not release said information contained in such original record except upon proper judicial order, or when requested by a person seeking his own birth or marriage record, or by a person whose official duties, in the opinion of the state registrar or

Helen Rush-Lloyd SPR24/1421 Page 5 May 24, 2024 town clerk, entitle him to the information contained in the original record.”) See also Boston Globe Media Partners, LLC., 482 Mass. at 436. The requested records are categorically exempt from disclosure under G.L. c. 4, §7(26)(a) because they are exempt by statute or necessary implication thereof. Based on the Department’s response, it is unclear how the above referenced statute permits it to withhold the marriage and divorce indexes from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites G. L. c. 46, § 13(h), it is unclear how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. The Department must clarify this. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Department argues the following:

Helen Rush-Lloyd SPR24/1421 Page 6 May 24, 2024 Additionally, this information is exempt from disclosure pursuant to G.L. c. 4, §7(26)(c) as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. This information is of a highly personal nature and contains specific details. The individuals’ privacy interests outweigh the public’s interest in disclosure. . . . Based on the Department’s response, it is unclear how the responsive marriage and divorce indexes are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain how the records may be withheld when Mr. Ferretti indicates that the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Ferretti with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti