Alec Ferretti v. Belmont, Town of - Town Clerk (SPR 20252814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2025 SPR25/2814 Ellen O’Brien Cushman Town Clerk Town of Belmont 455 Concord Avenue Belmont, MA 02478 Dear Ms. Cushman I have received the petition of Alec Ferretti appealing the response of the Town of Belmont (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 death certificate of [an identified individual], who died Sep 1, 1987.” The Town initially responded on August 27, 2025 and September 12, 2025, assigning the request reference number 25-1181. Previous Appeal This request was the subject of a previous appeal. See SPR25/2704 Determination of the Supervisor of Records (September 25, 2025). In my September 25th determination, I closed SPR25/2704 in light of the Town providing a further response on September 24, 2025. Unsatisfied with the Town’s response, Mr. Ferretti petitioned this office and this appeal, SPR25/2814, 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

Ellen O’Brien Cushman SPR25/2814 Page 2 October 2, 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 Town’s September 24th Response In its September 24, 2025 response, an attorney for the Town cited the statutory scheme of G. L. c. 46 as it operates through Exemption (a) of the Public Records Law to withhold the responsive record. The Town also referenced correspondence from the Registry of Vital Records and Statistics, citing G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010 in support of denying the request. Current Appeal In his appeal petition, Mr. Ferretti stated, “[t]he town is relying on the same arguments that other towns have used, all of which have been deemed insufficient by the SPR.” 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

Ellen O’Brien Cushman SPR25/2814 Page 3 October 2, 2025 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 24, 2025 response, the Town cited G. L. c. 46, which governs “return and registry of births, marriages and deaths.” G. L. c. 46, § 19C Specifically, the correspondence the Town provided from the Registry of Vital Records and Statistics 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 Further, the Town’s response and the Registry of Vital Records and Statistics’ correspondence relies on 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 Town stated: …G. L. c. 46 controls how vital records are created, transmitted between local and state government, and, in specific circumstances, available to certain individual upon request and payment of a fee... The chapter establishes a comprehensive vital records management system overseen by the Registry that does not contemplate “uncertified” copies being distributed. This is consistent with the fact that, outside of the specific channels provided in the statute, vital records are not for general public dissemination. Accordingly, the Registry

Ellen O’Brien Cushman SPR25/2814 Page 4 October 2, 2025 advised the Town not to distribute copies of vital records that have not been attested as required by statute… Within the system established by G.L. c. 46 and overseen by the Registry, municipal clerks are responsible for recording births, marriages, and deaths on specific forms provided by the State that contain the Seal of the Commonwealth … The Registry maintains the statewide centralized, automated database of vital records. G.L. c. 46, § 33 authorizes use of that database for two purposes only: (1) recording births, deaths, and marriages, and “issu[ing] certified copies of vital records.” For a Town Clerk to use it to obtain or issue an uncertified copy of a vital record would violate this statute. There are also statutory limitations on how Town Clerks are supposed to maintain records… The rest of G.L. c. 46 contains extensive details about how vital records and “abbreviated” vital records may be kept and disclosed… [T]he detailed statutory scheme governing the maintenance and distribution of vital records, G.L. c. 46, makes no mention of municipal clerks maintaining or issuing uncertified copies of vital records. The omission of any such reference implies that such records are not to be maintained, let alone disclosed pursuant to the Public Records Law. Further, the correspondence the Town provided from the Registry of Vital Records and Statistics states: 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 Town cites the statutory scheme of G. L. c. 46, specifically relying on G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010, it is unclear from the Town’s response 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 Town has not met its burden to withhold the responsive record under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Town 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 Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Ellen O’Brien Cushman SPR25/2814 Page 5 October 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti