Jeremy Berry-Cahn v. Town of North Andover - Town Counsel (SPR 20253468)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 9, 2025 SPR25/3468 Christine P. O’Connor, Esq. Town Counsel Town of North Andover 120 Main Street North Andover, MA 01845 Dear Attorney O’Connor: 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); SPR25/2038 Determination of the Supervisor of Records (July 29, 2025); SPR25/2763 Determination of the Supervisor of Records (September 30, 2025); and SPR25/3442 Determination of the Supervisor of Records (November 21, 2025). In my November 21st determination, I closed SPR25/3342 in light of the Town providing a further response on November 21, 2025. Unsatisfied with the Town’s response, Mr. Berry-Cahn petitioned this office and this appeal, SPR25/3468, 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

Christine P. O’Connor, Esq. SPR25/3468 Page 2 December 9, 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 November 21st Response In the Town’s November 21, 2025 response, the Town continued to cite 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 stated, “Town counsel has again failed to provide any meaningful new arguments that have not already been made in previous appeals… The fact that the state registry of vital statistics has a similar record, is irrelevant.” 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

Christine P. O’Connor, Esq. SPR25/3468 Page 3 December 9, 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, § 33 In its November 21, 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. In its response, the Town argued: Although the petitioner, Berry-Cahn had asserted that it was the Town’s practice to not produce original copies of death certificates to the state, in its prior communication, the Town provided evidence that that was not true. Moreover, in its prior communication the Town has confirmed from the State Office of Vital Records that they are in possession of vital records from the Town for the year in question. The State Office of Vital Records has also stated that the records they have from North Andover and those retained by the Town are identical. As §33 makes clear, if the Town retained copies and sent the original documents to the State, then the town is no longer the keeper of the record [Mr. Berry-Cahn] seeks... In this case, the documents and information requested has always been available to [Mr. Berry-Cahn], either by paying the fee set by the legislature, or by in- person inspection of the documents. [Mr. Berry-Cahn’s] many appeals are not about access to documents, but about accessing the documents in the way he prefers and not in the manner set out by the state legislature… [Mr. Berry-Cahn] accessing documents in the way he wishes, is not only contrary to state law, but would undermine the public purpose behind the law. For the reasons stated in this communication and prior communications, North Andover submits that the record sought by [Mr. Berry-Cahn], while public, is available for production as a certified record obtained through the Commonwealth’s central database as accessed by the Town Although the Town cites G. L. c. 46, § 33, it is unclear from the Town’s response how the statute specifically or by necessary implication permits 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

Christine P. O’Connor, Esq. SPR25/3468 Page 4 December 9, 2025 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. 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 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