Alec Ferretti v. Reading, Town of - Town Clerk (SPR 20252673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2025 SPR25/2673 Laura A. Gemme Town Clerk Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: I have received the petition of Alec Ferretti appealing the response of the Town of Reading (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2025, Mr. Ferretti requested “… a scan of the birth certificate/return of a birth for [two identified individuals].” Prior Appeal This request was the subject of prior appeal. See SPR25/2553 Determination of the Supervisor of Records (September 9, 2025). In my September 9th determination, I found that the Town had not met its burden of specificity to withhold the responsive records in their entirety. The Town responded on September 10, 2025. Unsatisfied with the response, Mr. Ferretti petitioned this office and this appeal, SPR25/2673, 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 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 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

Laura A. Gemme SPR25/2673 Page 2 September 23, 2025 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. See 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 September 10th Response In its September 10, 2025 response, the Town stated: For reasons stated below, the Registry of Vital Records and Statistics advises city and town clerks to only issue certified copies of vital records (birth, death, marriage) 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 pursuant to G.L. c. 4, § 7(26)(a), which applies to records “specifically or by necessary implication exempt from disclosure by statute. “Specifically, G.L. c. 46, § 19C (use of the seal of the Department) and Chapter 327 of the Acts of 2010 (State Registrar required to take reasonable action to prevent and control identity theft, fraud and improper use) 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. Certified copies of vital records, which include security features as required by law, are available upon payment of applicable fees at the State Registry or at the clerk’s office in the city /town where the vital record was recorded.” … The Town of Reading’s position remains as presented in the first response; we are unable to provide scanned copies of any vital records. Upon receipt of payment for the certified copies, the Town will process the request and promptly send certified copies of the requested birth certificates. Again, if we are able to provide information off the records, we are happy to do so. Current Appeal In his September 10, 2025 petition to this office, Mr. Ferretti contended that “… uncertified copies of vital records are issued all the time by various entities, including the state archives … A suggestion is not an exemption under the public records law.”

Laura A. Gemme SPR25/2673 Page 3 September 23, 2025 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.” 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 September 10, 2025 response, the Town relied upon G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010, the latter of which created G. L. c. 46, §§ 32-34. The statutes provide in pertinent part: 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. When a clerk at the registry or a town clerk has reasonable cause to believe that a vital record may have been falsely made, altered, forged, counterfeited or procured through fraud or misrepresentation or improper use of the signature or facsimile of the signature or signature stamp of a town clerk or the state registrar, the clerk of the registry shall not issue a certified copy of the record or make the

Laura A. Gemme SPR25/2673 Page 4 September 23, 2025 record available for examination but shall retain the record and related evidence and notify the state registrar. When the state registrar has reasonable cause to believe that a vital record may have been falsely made, altered, forged, counterfeited or procured through fraud or misrepresentation or improper use of the signature or facsimile of the signature or signature stamp of a town clerk or the state registrar, the state registrar shall: (i) take reasonable administrative action to prevent and control fraud or improper use of the record, including instructions to all vital records clerks who have custody of the record to limit, restrict or stop issuing certified copies or making the record available for examination notwithstanding any general or special laws to the contrary; and (ii) notify appropriate law enforcement authorities. G. L. c. 46, § 32. 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 and all marriages by city or town that issued the license; and (ii) issue certified copies of vital records. All certified copies issued from the database shall be identical in size and format and shall have security features that deter alteration, counterfeiting, duplication or simulation of vital records and shall meet applicable federal and state standards established for this purpose. When issuing certified copies, the state registrar and town clerks shall comply with all applicable restrictions of state and federal law. The fee for a certified copy of a vital record issued by a town clerk from the database shall be uniform throughout the commonwealth, irrespective of where the record was originally recorded … G. L. c. 46, § 33. Based on the Town’s response, it is unclear how the above referenced statutes permit it to withhold the requested records from disclosure. 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. Consequently, although the Town cites G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010, it remains unclear how the statutes specifically or by necessary implication permit the Town to withhold the requested records from disclosure.

Laura A. Gemme SPR25/2673 Page 5 September 23, 2025 Conclusion Accordingly, the Town is ordered to provide Mr. Ferretti with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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 Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti