Alec Ferretti v. Department of Public Health (SPR 20243099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3099 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street, Second Floor 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. On May 9, 2024, Mr. Ferretti modified his request “to withdraw the request for the birth indexes.” Previous Appeals This request was the subject of previous appeals. See SPR24/1421 Determination of the Supervisor of Records (May 24, 2024) and SPR24/2230 Determination of the Supervisor of Records (August 19, 2024). In my August 19th determination, I ordered the Department to clarify its claims under Exemptions (a) and (c) for withholding the marriage and divorce indices. Subsequently, the Department responded on November 14, 2024. Unsatisfied with the Department’s response, Mr. Ferretti petitioned this office, and this appeal, SPR24/3099, 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 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 SPR24/3099 Page 2 December 2, 2024 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 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 contends the following: 1) The marriage and divorce indexes contain no mothers maiden names, so that portion of the response is irrelevant. There is no possibility of exposing the mother’s maiden name if that information is not recorded on the record... 2) The Registry has still failed to address why the information contained in a marriage index is related to a risk of any kind of privacy invasion when the index only contains 4 fields: the name of each party, town of license, year, and volume/page. Because the index gives only the year (not an exact date) of marriage, their whole argument for matching a document up with amended records is irrelevant. There is no way to match them up, because the volume numbers and page numbers in no way correlate. When a record is delayed or amended, it is simply added to the next numeric volume being filled at the time of recording. Additionally, the real fear with “matching” amended records is being able to identify adoptees, which would at best, only be relevant to birth indexes, which have not been appealed (I maintain that this would still not be relevant to birth indexes). If the original record becomes restricted as the result of an amendment, it gets superseded and is not disclosable, but the index data for both records is the same. The year doesn’t change. The names don’t change. There is no private information. 3) They failed to respond to the divorce section; county level indexes which are already considered public record can be consulted and reproduced at every single county family and probate branch in the state. Health Departments frequently cite “identity theft” as a reason to prevent access to vital records, yet are unable to ever provide specific instances of vital records data being used for identity theft. They are left with masking conclusory statements of this “could happen.” Usually these fights occur in places where vital records and their indexes are not explicitly

Helen Rush-Lloyd SPR24/3099 Page 3 December 2, 2024 public record. This particular battle is even more bizarre, because in Massachusetts, the records are public. The agency has given subsets of these records to libraries, and anyone is able to view them onsite. The Department’s November 14th Response In its November 14, 2024 response, “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 November 14th response, as in its August 6th 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

Helen Rush-Lloyd SPR24/3099 Page 4 December 2, 2024 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 November 14th response, under G. L. c. 46, § 13(h), the Department argues the following: 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.

Helen Rush-Lloyd SPR24/3099 Page 5 December 2, 2024 Chapter 327 of the Acts of 2010 In its November 14th response, as 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). In its November 14th response, under Chapter 327 of the Acts of 2010, the Department argues the following: Moreover, 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]. 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

Helen Rush-Lloyd SPR24/3099 Page 6 December 2, 2024 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 November 14th response, under Exemption (c), the Department argues the following: 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.

Helen Rush-Lloyd SPR24/3099 Page 7 December 2, 2024 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the Department to withhold the responsive records, the Department must provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the representative sample of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti