Alec Ferretti v. New Bedford, City of - Office of The City Solicitor (SPR 20252811)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2025 SPR25/2811 Romina Moniz Administrative Manager/Central Records Access Officer City of New Bedford Solicitor’s Office 133 William Street, Room 203 New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Alec Ferretti appealing the response of the City of New Bedford (City) 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 death certificate of [an identified individual], who died 20 May 2009.” Later on August 27, 2025, Mr. Ferretti clarified that his request was for “an uncertified copy of the document, not a certified copy.” The City initially responded on August 28, 2025. Previous Appeal This request was the subject of a previous appeal. See SPR25/2565 Determination of the Supervisor of Records (September 11, 2025). In my September 11th determination, I found that the City had not met its burden of specificity to withhold the responsive record. Subsequently, I learned that the City had provided Mr. Ferretti with a supplemental response on September 10, 2025. The City provided a further response on September 24, 2025. Unsatisfied with the City’s responses, Mr. Ferretti petitioned this office and this appeal, SPR25/2811, 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). 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

Romina Moniz SPR25/2811 Page 2 October 2, 2025 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 City’s September 10th and September 24th Responses In its September 10, 2025 response, the City cited Exemptions (a), (c), and (n) of the Public Records Law to withhold the responsive record. In its September 24, 2025 response, an attorney for the City reiterated the City’s September 10, 2025 response and provided correspondence from the Registry of Vital Records and Statistics in support of denying the request. Current Appeal In his appeal petition, Mr. Ferretti stated, “[t]he [City] has responded in bad faith, bringing up no new arguments, relying on the fact that ‘they haven’t done this before’ as a legal basis for not following the Public Records Law.” 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.”

Romina Moniz SPR25/2811 Page 3 October 2, 2025 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 September 10, 2025 and September 24, 2025 responses, the Town 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. G. L. c. 46, § 33 In its September 10, 2025 response, the Town also cited G. L. c. 46, § 33, which provides in pertinent part as follows: 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… G. L. c. 46, § 33. Chapter 327 of the Acts of 2010 Further, in both the September 10, 2025 and September 24, 2025 responses, the City 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

Romina Moniz SPR25/2811 Page 4 October 2, 2025 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 argued: As evidenced by the statutory framework of G. L. c. 46, not limited to Sections 19C and 33, the City access to death certificates is through the State’s Registry of Vital Records which permits the City to use it for the issuance of certified copies of vital records. Once the certificate is transmitted to the state, the state becomes the record holder. Thereafter, a seal or certification is required by law on any death certificates issued by the City. As such, to the extent the City is the custodian of the record, the City is unable to release the record without certification… Chapter 327 of the Acts of 2010 explains the seal of the Department of Public Health and security measures on paper copies are used to minimize the risk of fraudulent or improper use of vital records… The City would violate Chapter 327 of the Acts of 2010 if it released an uncertified copy… Further, the correspondence the City provided from the Registry of Vital Records and Statistics states: …[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… Copies of individual vital records are exempt from disclosure as public records pursuant to G.L. c. 4, § 7(26)(a)… Specifically, G.L. c. 46, § 19C and Chapter 327 of the Acts of 2010 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. Although the City cites G. L. c. 46, §§ 19C and 33, as well as Chapter 327 of the Acts of 2010, it is unclear from the City’s responses how the statutes specifically or by necessary implication permit it to withhold the requested record 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, I find the City has not met its burden to withhold the responsive record under Exemption (a) of the Public Records Law.

Romina Moniz SPR25/2811 Page 5 October 2, 2025 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). First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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) 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

Romina Moniz SPR25/2811 Page 6 October 2, 2025 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. Under Exemption (c), the City stated: You have requested an uncertified copy of a vital record (death certificate) which captures personal information and medical information. Disclosure of an uncertified copy would result in personal embarrassment to an individual of normal sensibilities, as the subject in question is a private individual rather than a public official and the release of an uncertified copy may subject their information to fraud or identity theft. The withheld information contains intimate details of a highly personal nature including personally identifying information and medical information. Disclosure of this information without certification would allow for the opportunity of members of the public to invade the personal privacy of the individual linked to the material and may lead to fraud or identity theft… Due to the fact that the public interest in obtaining the information in an uncertified form does not substantially outweigh the seriousness of any invasion of privacy, as made evident by the fact that the public at large does not stand to gain any extra insight by obtaining an uncertified copy, the balancing test necessitates that the information be withheld. Upon review, I find that the City has not met its burden of specificity to withhold the responsive death certificate under Exemption (c). The City has not shown that the responsive record constitutes intimate details of highly personal nature, nor that disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources or how any privacy interest is not outweighed by the public interest in obtaining this information. PETA, 477 Mass. at 292. Additionally, where the content of death certificates, including “disease or cause of death” is prescribed by statute, I find that the City has also not met its burden to withhold the “medical information” within the responsive record. See G. L. c. 46, § 1; see also Globe Newspaper Co. 404 Mass. At 136 (“The Legislature could have rendered autopsy reports made pursuant to G. L. c. 38, § 6, public records as it has done with respect to death certificates (G. L. c. 46, §§ 1, 9)…”). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable

Romina Moniz SPR25/2811 Page 7 October 2, 2025 judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” PETA, 477 Mass. 280, 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the City stated: The withheld record consists of personal identifying information and medical information and is considered information or data that could be used in perpetrating fraud without proper certification… Likewise, the City has consulted with the Registry, who advised the City not to release non-certified copies. Therefore, it has been withheld to safeguard the privately named individual’s information and overall public safety under G.L. c. 4, § 7(26)(n). Based on the City’s response, I find that the requested record does not resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Specifically, the death certificate does not resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also unclear how the record is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested record bears a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). In this case, the City did not provide factual heft to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cybersecurity,”

Romina Moniz SPR25/2811 Page 8 October 2, 2025 as required by Exemption (n). Consequently, the City has not met its burden to withhold the responsive record under Exemption (n). 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 Katherine Schuko, Esq.