Alec Ferretti v. Arlington, Town of - Clerk's Office (SPR 20253495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2025 SPR25/3495 Christine Bongiorno Deputy Town Manager – Operations Town of Arlington 730 Massachusetts Avenue Arlington, MA 02476 Dear Ms. Bongiorno: I have received the petition of Alec Ferretti appealing the response of the Town of Arlington (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 scans of death certificates for four identified individuals. Previous Appeal This request was the subject previous appeals. See SPR25/2648 Determination of the Supervisor of Records (September 15, 2025) and SPR25/3242 Determination of the Supervisor of Records (November 17, 2025). In my November 17th determination, I found that the Town had not met its burden to withhold the responsive records under Exemption (a) of the Public Records Law. The Town responded on November 25, 2025. Unsatisfied with the Town’s response, Mr. Ferretti petitioned this office and this appeal, SPR25/3495, 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

Christine Bongiorno SPR25/3495 Page 2 December 10, 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 November 25th Response In its November 25, 2025 response, the Town continued to cite G. L. c. 46, as the statutory scheme operates through Exemption (a) of the Public Records Law, to withhold the responsive records. Current Appeal In his appeal petition, Mr. Ferretti argued that the Town “brought up no new arguments that have not previously been addressed.” 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.

Christine Bongiorno SPR25/3495 Page 3 December 10, 2025 G. L. c. 46 In its November 25, 2025 response, the Town relies on the statutory scheme of G. L. c. 46, which governs “return and registry of births, marriages and deaths.” Specifically, the Town cited G. L. c. 46, § 27 (governing penalties for clerks neglecting required duties); G. L. c. 46, § 29 (governing attestation of certificates); G. L. c. 46, § 32 (governing actions by clerk and state registrar for misconduct regarding vital records); and G. L. c. 46, § 33 (regulating centralized, automated database for vital records and statistics; maintenance and preservation of original paper copies). Chapter 327 of the Acts of 2010 Further, the Town’s response cites 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: Vital records are squarely exempt from the PRL under Exemption (a) because as ch. 46 makes clear, the Clerk can only issue certified copies of vital records and must protect from disclosure vital records that the Clerk has reason to believe are fraudulent. This is exactly the type of exemption by “necessary implication” that Exemption (a) applies to… [I]t is hard to imagine that the Legislature intended for the PRL to be a defense to violating another state law. Chapter 46 § 27 imposes liability on Town Clerks who refuse or neglect to perform their duties under that chapter, which is punishable by a fine of not less than twenty dollars, and not more than one hundred dollars… By the Supervisor of Records’ logic, the Town Clerk can only comply with the PRL by violating another state law and exposing herself to liability. This logic cannot stand. As the Town asserted previously, if vital records were intended to be governed by the PRL, it is unlikely that the Legislature would pass a separate, special act establishing a process for producing certified copies of those records…

Christine Bongiorno SPR25/3495 Page 4 December 10, 2025 The Supervisor of Records’ position that vital records are governed by the PRL cuts against the Registry of Vital Records and Statistics’ apparent practice of requiring a fee to obtain certified copies of vital records… If a state agency asserts it can only issue certified copies of vital records, it reasons that local Town officials would be subject to the same restriction. Otherwise, the purpose of the RVRS would be entirely moot if requesters could get a copy of a certified record for free from a Town Clerk. Although the Town cites the statutory scheme of G. L. c. 46 and Chapter 327 of the Acts of 2010, it remains unclear from the Town’s response how the statutes specifically or by necessary implication permit it to withhold the requested records 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 records 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). Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti Michael C. Cunningham, Esq. Jaclyn Munson, Esq.