Alec Ferretti v. New Bedford, City of - Office of The City Solicitor (SPR 20253437)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2025 SPR25/3437 Katherine Schuko, Esq. Assistant City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Schuko: 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.” Previous Appeals and Reconsideration This request was the subject of previous appeals and a subsequent reconsideration. See SPR25/2565 Determination of the Supervisor of Records (September 11, 2025) and SPR25/2811 Determinations of the Supervisor of Records (October 2, 2025 and November 4, 2025). In my November 4th determination, I declined to reverse my finding in the October 2nd determination, which found that the City had not met its burden to withhold the responsive record under Exemptions (a), (c), or (n) of the Public Records Law. The City responded on November 19, 2025. Unsatisfied with the City’s response, Mr. Ferretti petitioned this office and this appeal, SPR25/3437, 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

Katherine Schuko, Esq. SPR25/3437 Page 2 December 4, 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 November 19th Response In its November 19, 2025 response, the City expounded upon its claims to withhold the responsive document pursuant to Exemption (a) of the Public Records Law. Current Appeal In his appeal petition, Mr. Ferretti argued that the City had “made no new arguments that the Supervisor has not already deemed unavailing.” 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

Katherine Schuko, Esq. SPR25/3437 Page 3 December 4, 2025 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 November 19, 2025 response, 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 The City 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, the City cited 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 argued:

Katherine Schuko, Esq. SPR25/3437 Page 4 December 4, 2025 While the City does not waive its other prior arguments, incorporated herein, the City clarifies that if the City is the proper custodian and if the requested records are not specifically exempt from disclosure by statute, then they are exempt under statute by necessary implication… G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010, if not through specific exemption, through necessary implication exempt the requested uncertified scan of the death certificate of the specifically named individual from the definition of a public record through exemption (a). You may decide to place a request for a certified copy of the requested record through the links previously shared with you or, you may decide to visit the genealogical research archive. Although the City cites G. L. c. 46, §§ 19C and 33, as well as Chapter 327 of the Acts of 2010, it remains unclear from the City’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 City has not met its burden to withhold the responsive record under Exemption (a) of the Public Records Law. 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