Jeremy Berry-Cahn v. North Andover, Town of - Town Manager (SPR 20252038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2025 SPR25/2038 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/1815 Determination of the Supervisor of Records (July 7, 2025). In my July 7th determination, I order the Town to clarify its claim to withhold the responsive record under G. L. c. 46, § 19A and Exemption (a) of the Public Records Law. The Town responded on July 11, 2025. Unsatisfied with the Town’s response, Mr. Berry-Cahn petitioned this office and this appeal, SPR25/2038, was opened as a result. While this appeal was pending, the Town provided supplemental responses on July 15, 2025 and July 23, 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. 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 SPR25/2038 Page 2 July 29, 2025 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 Town’s July 11th Response In its July 11, 2025 response, the Town quoted a communication it received from the Registry of Vital Records and Statistics, which cited G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010 as they operate through Exemption (a) of the Public Records Law, to support withholding the responsive document. Current Appeal In his appeal petition, Mr. Berry-Cahn stated, “[t]he Town’s reasoning, while citing appropriate obligations imposed on the Commonwealth, misapplies those standards to its own role as a municipal records custodian… G.L. c. 46, § 19C and Chapter 327 of the Acts of 2010— may well govern how the state handles vital records… [h]owever, these requirements do not apply to uncertified copies, or at all to towns and cities… [I]nternal policy cannot override the requirements of the Public Records Law.” In a supplemental response on July 15, 2025, the Town stated: While the state allows cities and towns access to these records, only the Commonwealth has custodial authority over these records as they are responsible for the physical and legal control of those records…If an individual requests a copy of a death certificate, it is not being denied, it has to be certified, consistent with requirements from the Commonwealth. Contrary to the assertions of [Mr.] Berry-Cahn, there is no independent copy held by the town. Cities and towns are political subdivisions of the State, as such, the statutory rules governing the production of Vital Records in the Commonwealth, held by the Commonwealth, apply to cities and towns when producing the Commonwealth’s records. In a further supplemental response on July 23, 2025, the Town cited G. L. c. 46, § 33, which provides in pertinent part as follows: The state registrar shall establish, maintain and operate a centralized, automated database for the system of vital records and statistics, subject to appropriation. The state registrar shall make such automated database available to town clerks who shall use it to (i) record all births and deaths by city or town of occurrence

Laurie Burzlaff SPR25/2038 Page 3 July 29, 2025 and all marriages by city or town that issued the license; and (ii) issue certified copies of vital records… G. L. c. 46, § 33. In its response the Town stated: From the Town’s standpoint, it appears that this appeal… has been narrowed to the following issue: whether local clerks’ offices are, are in fact, separate repositories for death certificates and other public records, and may, contrary to Chapter 46, produce uncertified copies of death records… the answer is no…. Chapter [46], as amended, has effectively preempted the rules and regulations governing the maintenance and production of vital records… In reply to the Town’s supplemental responses on July 23, 2025, Mr. Berry-Cahn argued that the Town’s position is deficient for the following reasons: [1] The role of Town Clerks as registrars, not satellites… [2] Original Town death records from 1947 were never entered into the central database… [3] Town and State hold physically distinct records – they are not identical… [4] Certification requirements apply to the copying method, not to access rights… [5] Legislative intent was to protect against modern identity theft – not to restrict historic records… [6] Certification requirements govern output format – not access rights… 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, 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.”

Laurie Burzlaff SPR25/2038 Page 4 July 29, 2025 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, § 19C In its July 11th response, the Town cited G. L. c. 46, § 19C, which provides: The state registrar shall use the seal of the department of public health for the purpose of authenticating copies of birth, marriage and death records, and copies of such records when certified by him and authenticated by said seal, shall be evidence like the originals. G. L. c. 46, § 19C. Under Exemption (a), the Town stated: North Andover cited longstanding state and municipal practice, that the document responsive… can only be provided as a certified record… [W]hile 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. These records will only be produced as a certified record… Cities and towns, through their clerk’s office, may access death records through the Registry, but they too have to be certified… The Town was advised . . . “the Registry of Vital Records and Statistics advises city and town clerks to only issue certified copies of vital records… to minimize the risk of fraud, identity theft, and improper use, as required by state law. Therefore, city and town clerks should not issue non-certified copies of vital records to the media or other requestors under the Massachusetts Public Records Law. Copies of individual vital records are exempt from disclosure as public records… Specifically, G.L. c. 46, § 19C… and Chapter 327 of the Acts of 2010… require the seal of the Department of Public Health and security measures on paper copies to minimize the risk of fraudulent or improper use of such records…” Based on the response from the Commonwealth’s Vital Record’s Division, the Town seeks to maintain its position that producing uncertified copes of death certificates would be contrary to law… and to the longstanding practice at the State and local level. Finally, while I previously noted that cities and towns have access to the death records through the Commonwealth’s office of Vital Records, the official keeper of these records is the Commonwealth.

Laurie Burzlaff SPR25/2038 Page 5 July 29, 2025 In its July 23rd supplemental response, the Town argued further: The addition of §33… is the clearest indication of the legislative desire to create a uniform and mandatory system throughout the Commonwealth… As evidenced from §33, the town is no longer the keeper of the record [Mr.] Berry-Kahn seeks, and even if it were, it is obligated to produce a “certified” copy of record. It is clear that from the overall statutory scheme of MGL Chapter 46, that the intent of the legislature was to create a uniform repository and appearance for all vital records in the Commonwealth. This is an area that the state has chosen to exclusively regulate, and to do so in order to advance a significant public purpose: protecting its residents from fraud and identity theft. If municipalities were allowed to produce uncertified vital records, the legitimate public purpose of the state would be eroded. Based on the Town’s responses, I find the Town has not met its burden to withhold the responsive record in its entirety pursuant to G. L. c. 46, § 19C or G. L. c. 46, § 33 as they operate through Exemption (a) of the Public Records Law. Where Mr. Berry-Cahn seeks an uncertified copy of the responsive death certificate and G. L. c. 46, § 19C concerns the state registrar’s authentication of copies of birth, marriage and death records via use of the seal of the Department of Public Health and the use of such records as evidence, it is unclear how G. L. c. 46, § 19C specifically or by necessary implication prohibits the Town’s disclosure of the requested record. Further, where G. L. c. 46, § 33 concerns the state registrar’s duty to establish, maintain and operate a centralized database for vital records and statistics, it is also unclear how G. L. c. 46, § 33 specifically or by necessary implication prohibits the Town’s disclosure of the requested record. 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. 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