Alec Ferretti v. Department of Public Health (SPR 20252045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2025 SPR25/2045 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 and In Camera Review This request was the subject of previous appeals and a subsequent in camera review. See SPR24/1421 Determination of the Supervisor of Records (May 24, 2024); SPR24/2230 Determination of the Supervisor of Records (August 19, 2024); SPR24/3099 Determinations of the Supervisor of Records (December 2, 2024, February 24, 2025, and March 17, 2025) and SPR25/1240 Determination of the Supervisor of Records (May 16, 2025). In my May 16th determination, I found that the Department had not met its burden to withhold responsive divorce indices pursuant to G. L. c. 208, § 46 and G. L. c. 111, § 2 as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4 § 7(26)(a). Subsequently, the Department responded to Mr. Ferretti on July 14, 2025. Unsatisfied with the Department’s response, Mr. Ferretti petitioned this office, and this appeal, SPR25/2045, was opened as a result. 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 SPR25/2045 Page 2 July 29, 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. 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 July 14th Response In its July 14, 2025 response, the Department states the following: [T]he Department maintains that it is statutorily prohibited and exempted from disclosing the divorce index records. . . . [T]he Department continues to determine that the divorce indices requested are exempted from the Public Records Law under exemptions (a) and (c). . . . [I]nformation contained in divorce indices is explicitly exempted from disclosure by statute, as well as exempted by implication as disclosure would constitute an unwarranted invasion of personal privacy. It also contains identifying information of individuals’ whose privacy interests outweigh the public’s interest in disclosure. 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 SPR25/2045 Page 3 July 29, 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. G. L. c. 208, § 46 and G. L. c. 111, § 2 In its July 14th 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. Under c. 208, § 46, the Department argues the following: As previously advised, the above-referenced reports and appended information that is forwarded to the Department is what the Department uses to create the divorce indices at issue. Importantly, the statute expressly states that said information shall not constitute a public record. While there is a carve out for instances where disclosure may be necessary “for the purposes stated in [G.L. c. 111 § 2],” the present public record request does not fit within that exception. In its July 14th response, the Department also cites G. L. c. 111, § 2, which provides in pertinent part as follows: The commissioner [of Public Health] shall prepare from the birth, marriage and

Helen Rush-Lloyd SPR25/2045 Page 4 July 29, 2025 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 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. Under c. 111, § 2, the Department argues the following: Notably, there is nothing in the two stated purposes of G.L. c. 111 § 2, which deal with 1) transmitting the statistical information to federal, state, and local governmental entities to develop uniform statistical systems and 2) administrative and research purposes connected with health programs and population studies, that suggests that the explicitly exempted information be publicly disclosed to private individuals in the context of a public records request. Based on its July 14th response, the Department has not demonstrated how the divorce indices constitute the type of record contemplated under G. L. c. 208, § 46. Further, where G. L. c. 111, § 2 requires the creation of the records, 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 G. L. c. 208, § 46 and G. L. c. 111, § 2 as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Chapter 327 of the Acts of 2010 and Trial Court Rule VIII: Rule 13 In its July 14th response, the Department also argues the following: In addition, the Probate Court, pursuant to Trial Court Rule VIII: Uniform Rules on Impoundment Procedure . . . has impounded certain records from public access. Rule 13 specifically states that: “All persons shall protect the confidentiality of the impounded material.” The Probate Court provides all records, both impounded and not, to DPH, but DPH has no information by which to separate out impounded from non-impounded records. Providing complete copies of the divorce indexes to the public would thus result in the release of impounded records that are not available for public inspection.

Helen Rush-Lloyd SPR25/2045 Page 5 July 29, 2025 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 birth, marriage and divorce records. If the Registry were to disclose static copies of the Registry’s divorce indices, it could increase the potential for identity theft and fraud by revealing to potential imposters information that may have appeared on a 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/divorce records may expose individuals to the risk of identity theft, given the prevalence of “mother’s maiden name” as a security challenge question. As noted in my previous February 24, and March 17, 2025 determinations, following in camera review, the Department has not demonstrated how Chapter 327 of the Acts of 2010 would permit it to withhold the divorce indices. Additionally, the Department has not demonstrated how the divorce indices, in their entirety, constitute “impounded material” as contemplated under Trial Court Rule VIII, Rule 13(c). See SPR24/3099 Determinations of the Supervisor of Records (February 24, 2025 and March 17, 2025). Consequently, the Department has not met its burden to withhold the divorce indices pursuant to either Chapter 327 of the Acts of 2010 or under Trial Court Rule VIII, Rule 13, as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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). Second Clause – Privacy Analysis under the second clause of 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 clause 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)

Helen Rush-Lloyd SPR25/2045 Page 6 July 29, 2025 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). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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 July 14th response, under Exemption (c), the Department argues the following: With respect to exemption (c), the divorce indices contain information that is also exempt from disclosure as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. In the Boston Globe Supreme Judicial Court opinion about vital records, 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 ruled that there are significant privacy concerns from the release of vital records of Massachusetts residents. The information that you seek is of a highly personal nature and contains specific details. Here, the individuals’ privacy interests outweigh the public’s interest in disclosure. Even if not categorically exempt, DPH would redact an individual’s identifying information pursuant to Exemption (c) as release of such information would constitute an unwarranted invasion of privacy, and the subject individual’s privacy interest outweighs the public interest in disclosure. For the reasons set forth above, this information is of a highly personal nature, containing specific details which may identify individuals, and its disclosure may constitute an unwarranted invasion of personal privacy. The individuals’ privacy interests outweigh the public’s interest in disclosure. Accordingly, this information is exempt from disclosure pursuant to the second clause of G. L. c. 4, § 7(26)(c). The information would thus constitute personal data, which is protected from disclosure by the Fair Information Practices Act, G. L. c. 66A (“FIPA”). If DPH disclosed such information, it may be liable for damages under G. L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). Therefore, this information is also exempt pursuant to G. L. c.

Helen Rush-Lloyd SPR25/2045 Page 7 July 29, 2025 4, § 7(26)(a) because it is exempt by statute or necessary implication thereof, including FIPA and G. L. c. 4, § 7(26)(c), as outlined above. As noted in my previous February 24, and March 17, 2025 determinations, the Department has not met its burden to demonstrate how the divorce indices, which contain publicly available information, constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities, as required under Exemption (c). Consequently, the Department has not met its burden to withhold the divorce indices pursuant to Exemption (c) of the Public Records Law. 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 further 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