Jeremy Berry-Cahn v. North Andover, Town of - Town Manager (SPR 20251815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2025 SPR25/1815 Laurie Burzlaff Assistant Town Manager Town of North Andover 120 Main Street North Andover, MA 01845 Dear Ms. Burzlaff: I have received the petition of Jeremy Berry-Cahn appealing the response of the Town of North Andover (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2025, Mr. Berry-Cahn requested, “…a copy of the death certificate for [an identified individual], who died in North Andover on May 28th, 1947.” The Town responded on June 24, 2025. Unsatisfied with the Town’s response, Mr. Berry-Cahn petitioned this office and this appeal, SPR25/1815, was opened as a result. While this appeal was pending, the Town provided a supplemental response on July 1, 2025. 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 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. 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

Laurie Burzlaff SPR25/1815 Page 2 July 7, 2025 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 Town’s June 24th Response In its June 24, 2025 response, the Town cited G. L. c. 46, § 19A to withhold the responsive document, and stated “[y]ou must request a certified copy from the Town Clerk’s office to either be picked up or mailed. You may also order online…” Current Appeal In his appeal petition, Mr. Berry-Cahn stated, “[m]y request was for an uncertified copy of a death certificate from 1947. I believe the denial was made in error and contradicts both the language and intent of Massachusetts public records law.” In its July 1, 2025 supplemental response, the Town stated: North Andover’s position, in keeping with longstanding state and municipal practice, is that the document responsive to Berry-Cahn’s request … can only be provided as a certified record… While the requested document is a public record, it is also subject to other requirements in the general laws. In the case of death records, the official keeper of the record is the Commonwealth’s Registry of Records and Statistics… Cities and towns, through their clerk’s office, may access death records through the Registry, but they too have to be certified. In reply to the Town’s supplemental response, Mr. Berry-Cahn stated: [The Town’s] position is not supported by statute and improperly elevates administrative practice over legally established rights…Even if the Registry elects to issue only certified copies as a matter of internal policy, towns are independently bound by the Public Records Law…M.G.L. c. 46, § 19A authorizes clerks and assistant clerks to issue certificates, but it does not prohibit them from issuing uncertified copies…The Town of North Andover’s interpretation would imply that, while a record is public, it is only accessible in an officially certified format—an artificial restriction found nowhere in statute or case law. 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).

Laurie Burzlaff SPR25/1815 Page 3 July 7, 2025 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, 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. G. L. c. 46, § 19A In its June 24th response, the Town cites G. L. c. 46, § 19A, which provides: Reproductions of certificates or records referred to in section nineteen by any person other than the town clerk, assistant clerk, commissioner of public health shall be prohibited, except that a register of deeds, register of probate or other county, state, municipal or federal official keeper of public records may, in the course of his official duties, reproduce such certificates or records as are required in his office. Whoever violates the provisions of this section shall be punished by a fine of not more than one hundred dollars. G. L. c. 46, § 19A. Under G. L. c. 46, § 19A, the Town stated, “[t]he document in response to your request cannot be provided. Vital records such as birth, death, and marriage are not subject to inspection in the same manner as other public records. MGL Ch. 46. Sec. 19A - Clerks can and must issue certified copies when authorized. Scanning and emailing certified death records violates record security and legal authenticity protocols.” Based on the Town’s response, it is unclear how G. L. c. 46, § 19A specifically or by necessary implication prohibits the disclosure of the requested record. Consequently, the Town has not met its burden to withhold the requested record in its entirety under G. L. c. 46, § 19A. 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. The Town must clarify this matter.

Laurie Burzlaff SPR25/1815 Page 4 July 7, 2025 Conclusion Accordingly, the Town is ordered to provide Mr. Berry-Cahn 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. Berry-Cahn may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Berry-Cahn