Alec Ferretti v. Lawrence, City of - Office of the City Clerk (SPR 20252684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2025 SPR25/2684 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street Lawrence, MA 01840 Dear Ms. O’Connor Bernal: I have received the petition of Alec Ferretti appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2025, Mr. Ferretti requested, “…a scan of the original return of a birth for [an identified individual].” Previous Appeal This request was the subject of a previous appeal. See SPR25/2666 Determination of the Supervisor of Records (September 11, 2025). In my September 11th determination, I closed SPR25/2666 in light of the City providing three responses on September 10, 2025. Unsatisfied with the City’s responses, Mr. Ferretti petitioned this office and this appeal, SPR25/2684, was opened as a result. While this appeal was pending, the City provided a supplemental response on September 11, 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 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

Eileen O’Connor Bernal SPR25/2684 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. 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 City’s September 10th and September 11th Responses In its first September 10, 2025 response, the City stated, “[a]s is well established in Massachusetts, Vital Records are not Public Records. However, we are happy to process a request for Vital Records for this individual… [T]his office does not issue ‘Scanned’ copies of Vital Records. We only issue Certified Copies, which by definition are on paper and are certified.” In its second September 10, 2025 response, the City reiterated its initial response and stated, “[w]e will not scan that document to you as a public record.” In its third September 10, 2025 response, the City provided correspondence 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, in support of denying to scan a copy of the responsive record. In its September 11, 2025 supplemental response, the City stated, “[w]e do not issue uncertified copies of vital records as both a matter of law as well as a matter of best practice… [T]he City is willing to provide a certified copy of the birth record to this petitioner at any time. However, we stand firmly in the position that a variation from the well-established practice would lead to a very slippery slope and force municipalities to issue un-certified copies of vital records.” Current Appeal In his appeal petition, Mr. Ferretti stated, “…there is no exemption under the Public Records Law that covers vital records.” 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).

Eileen O’Connor Bernal SPR25/2684 Page 3 September 23, 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, § 19C In its third September 10, 2025 response, the City relied on correspondence from the Registry of Vital Records and Statistics that 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. Chapter 327 of the Acts of 2010 In its response, the City’s correspondence also cited a portion of Chapter 327 of the Acts of 2010, which provides in pertinent part: …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…. Chapter 327 of the Acts of 2010.

Eileen O’Connor Bernal SPR25/2684 Page 4 September 23, 2025 Under Exemption (a), the City quoted the Registry of Vital Records and Statistics, which stated: …[T]he 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… 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. Based on the City’s responses, I find the City has not met its burden to withhold the responsive record pursuant to G. L. c. 46, § 19C or Chapter 327 of the Acts of 2010 as they operate through Exemption (a) of the Public Records Law. Where Mr. Ferretti seeks an uncertified copy of the responsive birth 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 City’s disclosure of the requested record. Further, where the cited portion of Chapter 327 of the Acts of 2010 concerns the state registrar’s duty to take reasonable action to prevent and control identity theft, fraud and improper use of vital records, it is also unclear how Chapter 327 of the Acts of 2010 specifically or by necessary implication prohibits the City’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 City 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 City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Eileen O’Connor Bernal SPR25/2684 Page 5 September 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti