Berry-Cahn, Jeremy v. Town of North Andover - Town Counsel (SPR 20260012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2026 SPR26/0012 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); SPR25/3342 Determination of the Supervisor of Records (November 21, 2025); and SPR25/3468 Determination of the Supervisor of Records (December 9, 2025). In my December 9th determination, I found that the Town had not met its burden to withhold the responsive record under Exemption (a) of the Public Records Law. The Town responded on December 31, 2025. Unsatisfied with the Town’s response, Mr. Berry-Cahn petitioned this office and this appeal, SPR26/0012, was opened as a result. While this appeal was pending, the Town provided a supplemental response on January 6, 2026. 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

Christine P. O’Connor, Esq. SPR26/0012 Page 2 January 16, 2026 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 Town’s December 31st and January 6th Responses In its December 31, 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 record. In its January 6, 2026 response, the Town clarified and expanded upon its Exemption (a) claims. Current Appeal In his appeal petition, Mr. Berry-Cahn stated, “[t]he statute does not require all copies to be certified… I am specifically seeking a copy of the town’s version of the record, not the state’s record… This public records request has already been subjected to numerous appeals, and the town’s rationale for withholding the record is not changing.” 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.”

Christine P. O’Connor, Esq. SPR26/0012 Page 3 January 16, 2026 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 responses, 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, § 16 (governing blank forms for vital records); G. L. c. 46, § 18 (governing script used on forms; state standards for uniformity, security, materials, devices and preservation); 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 December 31, 2025 response 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 Town argued: It is clear that from the overall statutory scheme of MGL Chapter 46, that the intent of the legislature was to create a uniform repository and appearance for all vital records in the Commonwealth. This is an area that the state has chosen to exclusively regulate, and to do so in order to advance a significant public purpose: protecting its residents from fraud and identity theft. If municipalities were allowed to produce uncertified vital records, the legitimate public purpose of the state would be eroded. For all of these reasons, North Andover submits that the record sought by [Mr. Berry-Cahn], while public, is only available for production as a certified record obtained through the Commonwealth’s central database.

Christine P. O’Connor, Esq. SPR26/0012 Page 4 January 16, 2026 Based on the Town’s responses, I find the Town 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 Town 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 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