Alec Ferretti v. New Bedford Solicitor’s Office (SPR 20253732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 31, 2025 SPR25/3732 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); SPR25/2811 Determinations of the Supervisor of Records (October 2, 2025 and November 4, 2025); and SPR25/3437 Determination of the Supervisor of Records (December 4, 2025). In my December 4th determination, I found that the City had not met its burden to withhold the responsive record under Exemption (a) of the Public Records Law. The City responded on December 18, 2025. Unsatisfied with the City’s response, Mr. Ferretti petitioned this office and this appeal, SPR25/3732, 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. SPR25/3732 Page 2 December 31, 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 December 18th Response In its December 18, 2025 response, the City continued to cite G. L. c. 46 and Chapter 327 of the Acts of 2010, as they operate through Exemption (a) of the Public Records Law, to withhold the responsive record. In addition, the City stated: …at least two legal and procedural questions of first impression remain pending: [1] Are State and City/Town entities required to issue uncertified vital records in response to public records requests, and; [2] If yes, what is the proper form the uncertified vital records must take? It is my understanding that these questions have been brought to the Registry’s attention by other cities and towns and that a response remains pending. Current Appeal In his appeal petition, Mr. Ferretti argued, “New Bedford continues to rely on arguments which have already been rejected, and instead of deferring to the administrator of Public Records on matters of what constitutes a public record, they are deferring to the Registry, which is not the entity charged with making that determination.” 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

Katherine Schuko, Esq. SPR25/3732 Page 3 December 31, 2025 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. G. L. c. 46 In its December 18, 2025 response, the City cited the statutory scheme of G. L. c. 46, which governs “return and registry of births, marriages and deaths.” Chapter 327 of the Acts of 2010 Further, the City’s response 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 City stated: Here, the requested record (an uncertified, “scan” of a death certificate of a specifically named citizen) is exempt from the definition of a public record under G. L. c. 4, § 7(26), through necessary implication. The Registry of Vital Records and Statistics is bound to produce certified vital records pursuant to the plain language and purpose behind the controlling statutes at issue, including Chapter 46 of Massachusetts General Laws and Chapter 327 of the Acts of 2010, which

Katherine Schuko, Esq. SPR25/3732 Page 4 December 31, 2025 the City has cited at length. The City contacted the Registry of Vital Records (the “Registry”) prior to this response, and has again confirmed that the Registry does not issue uncertified vital records. As a practical matter, the same statutory language within Chapter 46 of Massachusetts General Laws and Chapter 327 of the Acts of 2010, restricting the Registry from releasing uncertified scans of vital records, also restricts the City from doing the same under G. L. c. 4, § 7(26)(a). Based on the City’s responses, I find the City has not met its burden to withhold the responsive record pursuant to the statutory scheme of G. L. c. 46 and Chapter 327 of the Acts of 2010. Where G. L. c. 46 pertains to the duties and obligations of town and city clerks and the state registrar regarding the processes of certifying and maintaining certified vital records in accordance with the Registry of Vital Records and Statistics, and where Chapter 327 of the Acts of 2010 concerns the state registrar’s duty to take reasonable action to prevent and control identity theft, fraud and improper use of vital records, it remains unclear how the statutes specifically or by necessary implication permit the City to withhold the requested uncertified record from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld records are not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. 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