Alec Ferretti v. Department of Public Health (SPR 20251240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1240 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.” I understand the Department has assigned tracking number “VITALS 2024-24” to this request. Previous Appeals This request was the subject of previous appeals. See SPR24/1421 Determination of the Supervisor of Records (May 24, 2024); SPR24/2230 Determination of the Supervisor of Records (August 19, 2024) and SPR24/3099 Determinations of the Supervisor of Records (December 2, 2024; February 24, 2025 and March 17, 2025). In my March 17th determination, I found that the Department has not met its burden to withhold either the responsive marriage indices or divorce indices pursuant to Exemptions (a) or (c) of the Public Records Law. Subsequently, the Department responded on April 17, 2025. Unsatisfied with the Department’s response, Mr. Ferretti petitioned this office, and this appeal, SPR25/1240, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR25/1240 Page 2 May 16, 2025 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 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 the following: DPH has supplied me with the marriage indexes. At issue now are only the divorce indexes, which the DPH still considers to be restricted. I would like to appeal this, on the basis that the DPH has waived any right to withhold the records by making them readily available in their on-site offices to members of the public. The Department’s April 17th Response In its April 17, 2025 response, the Department cites G. L. c. 208, § 46, as it operates through Exemption (a) of the Public Records Law, for withholding the responsive divorce indices. See 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

Helen Rush-Lloyd SPR25/1240 Page 3 May 16, 2025 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. In its April 17th response, the Department cites G. L. c. 208, § 46, which provides in pertinent part as follows: The registers of probate shall receive the statistical reports filed pursuant to section six B; and shall, upon a divorce becoming absolute, add to the information contained therein the date and number of the judgment, the cause for which the divorce was granted, and such additional information as the commissioner of public health deems useful for statistical and research purposes and shall further, on the tenth day of the month following every month in which divorces become absolute, transmit such reports to the commissioner of public health. Any such information forwarded to the commissioner of public health shall not constitute a public record nor be available except as may be necessary for the purposes stated in section two of chapter one hundred and eleven. G. L. c. 208, § 46. In its April 17th response, the Department argues that “accordingly, DPH will continue to withhold these records pursuant to G. L. c. 4, § 7(26)(a) because they are explicitly exempt by statute. This is notwithstanding the prior reasons and legal bases that DPH maintains prohibit these records from public disclosure.” Please note that G. L. c. 111, § 2 addresses the duties of Commissioner of Public Health, and provides in pertinent part as follows: The commissioner shall prepare from the birth, marriage and death records received by him under the provisions of chapter forty-six, and from the divorce returns received by him under the provisions of section forty-six of chapter two hundred and eight, such statistical tables as he deems useful, and shall make annual report thereof to the general court. The commissioner may transmit such information to the appropriate agency of the federal government to participate in the development of a cooperative system for producing uniform statistical

Helen Rush-Lloyd SPR25/1240 Page 4 May 16, 2025 information at the federal, state and local level. The commissioner may make further use of such records as he deems useful for administrative and research purposes connected with health programs and population studies. He shall, as soon as is reasonably practicable, cause the birth, marriage and death records to be bound with indexes thereto and shall retain their custody. He shall prepare an alphabetical index of such divorce returns showing the names of the parties, year and number of the judgment and the county in which the divorce occurred. G. L. c. 111, § 2. Based on the Department’s April 17th response, it is unclear how the divorce indices requested by Mr. Ferretti constitute the type of record contemplate under G. L. c. 208, § 46. Further, where G. L. c. 111, § 2 requires the creation of the records Mr. Ferretti seeks, and does not specifically or by necessary implication exempt those records from disclosure, I find the Department has not met its burden to withhold the responsive records under Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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. Mr. Ferretti may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti