Jeremy Berry-Cahn v. North Andover, Town of - Town Manager (SPR 20252763)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2025 SPR25/2763 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 Appeals This request was the subject of previous appeals. See SPR25/1815 Determination of the Supervisor of Records (July 7, 2025) and SPR25/2038 Determination of the Supervisor of Records (July 29, 2025). In my July 29th determination, I found that the Town had not met its burden to withhold the responsive record under G. L. c. 46, §§ 19C and 33 as they operate through Exemption (a) of the Public Records Law. The Town responded on August 18, 2025. Unsatisfied with the Town’s response, Mr. Berry-Cahn petitioned this office and this appeal, SPR25/2763, 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. 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 SPR25/2763 Page 2 September 30, 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 August 18th Response In its August 18, 2025 response, the Town again cited G. L. c. 46, § 33, as it operates through Exemption (a) of the Public Records Law, to withhold the responsive record. Current Appeal In his appeal petition, Mr. Berry-Cahn argued “…North Andover’s town counsel has unnecessarily belabored my request for what amounts to one single page of responsive documents.” 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.

Laurie Burzlaff SPR25/2763 Page 3 September 30, 2025 G. L. c. 46, § 33 In its August 18, 2025 response, the Town cited the final paragraph of G. L. c. 46, § 33, which provides as follows: Town clerks shall be responsible for the maintenance and preservation of original paper records until such time as originals are transferred to the state registrar. The state registrar shall be responsible for maintenance and preservation of original paper records until such time as bound volumes of original birth, marriage and death records are transferred to the state archivist. G. L. c. 46, § 33. Under Exemption (a), the Town argued: In addition to the Town of North Andover’s prior communications… [t]he plain language of MGL Chapter 46, §33’s final paragraph makes clear that once the original paper records are transferred to the state registrar from local town clerks, the state registrar shall be responsible for the maintenance and preservation of these records… In this case, all original vital records have on a regular and timely basis been transferred to the state registrar, including but not limited to the requested record. As evidenced from §33, the town is no longer the keeper of the record Berry- Kahn seeks, and to produce such a document would be to undermine the overall statutory scheme of MGL Chapter 46, as well as its purpose protecting residents from fraud and identity theft… North Andover submits that the record sought by Berry-Kahn, while public, is only available for production as a certified record obtained through the Commonwealth’s central database. Based on the Town’s response, I find the Town has not met its burden to withhold the responsive record pursuant to G. L. c. 46, 33 as it operates through Exemption (a) of the Public Records Law. Where Mr. Berry-Cahn seeks an uncertified copy of the responsive death certificate and the cited portion of G. L. c. 46, § 33 concerns the responsibility for maintenance and preservation of original paper records, it is 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

Laurie Burzlaff SPR25/2763 Page 4 September 30, 2025 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