Alec Ferretti v. Department of Public Health (SPR 20242230)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2024 SPR24/2230 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1421 Determination of the Supervisor of Records (May 24, 2024). In my May 24th determination, I ordered the Department to clarify its claims under Exemptions (a) and (c) for withholding responsive records. Subsequently, the Department responded on August 6, 2024. Unsatisfied with the Department’s response, Mr. Ferretti petitioned this office, and this appeal, SPR24/2230, 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 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 SPR24/2230 Page 2 August 19, 2024 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 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. The Department’s August 6th Response In its August 6, 2024 response, the Department states that “the Department maintains that the information contained in the marriage and divorce indices is exempt from disclosure under Exemptions (a) and (c).” 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 restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (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. G. L. c. 46, § 13(h) In its August 6th response, the Department cites G. L. c. 46, § 13(h), which provides in

Helen Rush-Lloyd SPR24/2230 Page 3 August 19, 2024 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 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 response, under G. L. c. 46, § 13(h), the Department argues the following: With respect to Exemption (a), as set forth in the Department’s initial response, G.

Helen Rush-Lloyd SPR24/2230 Page 4 August 19, 2024 L. c. 46, § 13(h) provides that that the “clerk or other official responsible for the keeping” of corrected, amended, or supplemented birth, death, or marriage 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 town clerk, entitle him to the information contained in the original record.” As explained in the Department’s initial response, the disclosure of the requested records, when compared against similar records released at a different point in time, could be used to discern data that the Department is prohibited by law from disclosing. A comparison could reveal which records were corrected, amended, or supplemented, and thus reveal private information that the Department is prohibited from disclosing. Based on the Department’s response, it remains unclear how the above referenced statute permits it to withhold the marriage and divorce indices from disclosure. Specifically, the Department has not demonstrated that the indices requested by Mr. Ferretti constitute the type of “amended, corrected, or supplemented record[s]” contemplated under G. L. c. 46, § 13(h). Chapter 327 of the Acts of 2010 In its August 6th response, the Department cites Chapter 327 of the Acts of 2010. See 2010 Mass. Acts 1242-44 (establishing centralized, automated database for system of vital records and statistics). Under Chapter 327 of the Acts of 2010, the Department argues the following: Chapter 327 of the Acts of 2010 “An Act Relative to the Security of Vital Records and Verification of Identity” requires the Registry of Vital Records and Statistics (“Registry”) to take reasonable action to prevent and control identity theft, fraud and improper use of vital records held by the Department. By implication, the Registry must maintain its databases and indexes securely to minimize the potential for identity theft and fraud associated with birth and marriage records. If the Registry were to disclose static copies of the Registry’s marriage indexes, it could increase the potential for identity theft and fraud by revealing to potential imposters information that may have appeared on a marriage record index entry prior to amendment of the record, including a person’s name and other identifying information. Moreover, disclosure of the maiden names of birth parents that are contained in marriage and divorce records may expose individuals to the risk of identity theft, given the prevalence of “mother’s maiden name” as a security challenge question. ... For example, the Department of Defense lists mother’s maiden name as an element of PII [Personal Identifiable Information]. 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

Helen Rush-Lloyd SPR24/2230 Page 5 August 19, 2024 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), the Department has not demonstrated how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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. In its August 6th response, under Exemption (c), the Department argues the following:

Helen Rush-Lloyd SPR24/2230 Page 6 August 19, 2024 With respect to Exemption (c), the marriage and divorce indexes contain information that is also exempt from disclosure pursuant to M.G.L. c. 4, s.7(26)(c) as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. The fact that visitors can search a database of index information at public facing computer terminals at the Registry for specifically named individuals does not mean that releasing copies of static index information to any member of the public raises no privacy concerns. In the Boston Globe Supreme Judicial Court opinion [Boston Globe Media Partners, LLC v. Department of Public Health, 482 Mass. 427 (2019)], the Court made clear that there is a significant privacy interest in protecting vital records of millions of individuals from incorporation into public databases. The Court stated: One case-specific factor here is the aggregate nature of the requested indices, which combine discrete information about millions of individuals. We have yet to address in the public records context whether there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes. We now recognize, as have the United States Supreme Court and the Appeals Court, that in certain circumstances there is…. The requested indices combine personal details about millions of individuals. Their composite nature weighs in favor of a conclusion that there is a privacy interest in them. ... [T]he Supreme Judicial Court remanded the Boston Globe case to the Superior Court for further findings. However, it also made clear the significant privacy concerns from the release of vital records of millions of Massachusetts residents. The information that [Mr. Ferretti] seek[s] 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, the Department has not met its burden to withhold the requested records under Exemption (c). It remains 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 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. 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

Helen Rush-Lloyd SPR24/2230 Page 7 August 19, 2024 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