Alec Ferretti v. Haverhill, City of - City Clerk (SPR 20252694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2025 SPR25/2694 Christine Lindberg Chief of Staff City of Haverhill 4 Summer Street Haverhill, MA 01830 Dear Ms. Lindberg, I have received the petition of Alec Ferretti appealing the response of the City of Haverhill (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2025, Mr. Ferretti requested, “…scans of the birth certificate / return of birth for [an identified individual] born 9 Jul 1920.” The City responded on August 27, 2025 and September 11, 2025. Unsatisfied with the City’s responses, Mr. Ferretti petitioned this office and this appeal, SPR25/2694, 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 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. 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

Christine Lindberg SPR25/2694 Page 2 September 25, 2025 The City’s August 27th and September 11th Responses In its August 27, 2025 response, the City stated, “[p]lease order the requested document through the Uni Pay system.” In its September 11, 2025 response, an attorney for the City 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 deny the request. Current Appeal In his appeal petition, Mr. Ferretti stated, “Haverhill is refusing to provide me with an uncertified copy of a vital record... It appears that the Department of Health has ‘recently’ decided that uncertified copies of vital records are illegal based on a novel reading of the vital records statute. I disagree.” 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. G. L. c. 46, § 19C In its response, the City cited G. L. c. 46, § 19C, which provides:

Christine Lindberg SPR25/2694 Page 3 September 25, 2025 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 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. Under Exemption (a), the City stated: Please be advised that the City is withholding the uncertified vital records you requested in accordance with G.L. c. 4, § 7(26)(a)… The Commonwealth’s Director of Vital Records… has recently interpreted the foregoing vital records laws as requiring city and town clerks to issue certified copies of vital records only. This is because G.L. c. 46, § 19C and Chapter 327 of the Acts of 2010 expressly limit access of uncertified vital records to the state registrar and city and town clerks. 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

Christine Lindberg SPR25/2694 Page 4 September 25, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti Alexander M. Castro, Esq.