Ferretti, Alec v. Department of Public Health - Registry of Vital Records and Statistics (SPR 20260728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2026 SPR26/0728 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street, Second Floor Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Alec Ferretti appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 9, 2026, Mr. Ferretti requested: …an electronic copy/export of the Registry of Vital Records and Statistics’ statewide marriage index database for marriages occurring from January 1, 1970 (or the earliest date available) through the most recent date available in the database…This request seeks marriage index data, not marriage certificates and not images/scans of underlying records. The request includes, but is not limited to: [1] The electronic marriage index data maintained by RVRS and/or DPH that is used to support lookups of Massachusetts marriages; and [2] Any and all data fields contained in that index/database export for each indexed marriage (e.g., name, date of marriage, place of marriage, date of birth/age, residence, certificate number, and any other fields stored), subject to lawful redaction of any exempt fields. The Department responded on February 27, 2026, assigning the request tracking number VITALS-2026-1. Unsatisfied with the Department’s response, Mr. Ferretti petitioned this office and this appeal, SPR26/0728, 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 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

Helen Rush-Lloyd SPR26/0728 Page 2 March 16, 2026 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 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 Department’s February 27th Response In its February 27, 2026 response, the Department cited Exemptions (a) and (c) of the Public Records Law to withhold the responsive records. Current Appeal In his appeal petition, Mr. Ferretti argued, “[t]he DPH has not met its burden to show with specificity that every field of every responsive index entry is exempt from disclosure. The Public Records Law strongly favors disclosure, exemptions are narrowly construed, and non- exempt portions must be produced after deletion of exempt material.” 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

Helen Rush-Lloyd SPR26/0728 Page 3 March 16, 2026 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. Fair Information Practices Act (FIPA) In its February 27th response, under Exemption (a), the Department cites G. L. c. 66A, also known as FIPA, for withholding responsive records. FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (“determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. G. L. c. 46, § 13(h) Additionally, in its February 27th response, the Department cites G. L. c. 46, § 13(h), which provides in pertinent parts as follows: The clerk or state registrar shall on forms provided by the state registrar complete an amended, corrected, or supplemented record of birth, death, acknowledgment or adjudication of paternity, or marriage. The original record of birth, death, acknowledgment or adjudication of paternity, or marriage and all returns and index entries in whatever format they are maintained shall be identified as corrected, amended, or supplemented. . . . Except as provided in the following two sentences, said clerk or other official responsible for the keeping of such records shall not release said information contained in such original record except upon proper judicial order, or when requested by a person seeking his own birth or marriage record, or by a person whose official duties, in the opinion of the state registrar or town clerk, entitle him to the information contained in the original record. Death records which are corrected, amended or supplemented after January 1, 1996, as well as the affidavit of the party seeking the correction, amendment, or supplementation of the death

Helen Rush-Lloyd SPR26/0728 Page 4 March 16, 2026 record and all documentary evidence or related records submitted in support of such affidavit shall not be restricted, except for records or other items of documentary evidence submitted in support of the affidavit which are considered medical records for purposes of paragraph (c) of clause twenty-sixth of section 7 of chapter 4 are restricted by section 2A of this chapter, or are restricted by judicial order. If the original record has been amended following adoption in accordance with this section, the clerk or state registrar shall issue information contained in the original record only upon receipt of an order of the probate court for the county in which said adoption was granted or in accordance with section 2B, or in the case of an adoption granted outside the commonwealth, upon order of the probate court for the county in which said birth occurred or in accordance with said section 2B, instructing said clerk or state registrar to release the information contained in such original record. Evidence contained in the adoption record of a parent’s willingness to provide information about her identity to the adopted person shall, except in extraordinary circumstances, be considered sufficient evidence to warrant the granting of an order for release of the information contained in the birth certificate registered prior to adoption. If the corrected, amended or supplemented record is that of a person who has acquired the status of a child born in wedlock, or whose record has been amended through an adoption decree, or whose record has been amended through addition of the name of the father, the clerk or state registrar shall not indicate on such copy that the record has been corrected, amended or supplemented. G. L. c. 46, § 13(h). Under Exemption (a) and the statutes cited above, the Department argued: In May 2013, the Boston Globe served a similar public records request on DPH… In responding to your present request, a brief summary of the Globe’s 2013 PRR is instructive. In response to the Globe’s 2013 request, the Department declined to produce the “Birth Index” and “Marriage Index” pursuant to exemptions G. L. c. 4, §§ 7, Twenty-sixth (a) and (c) of the public records law. After an appeal, the Supervisor of Records ultimately determined that the “Birth Index” and “Marriage Index” were exempt from public disclosure. The Globe filed suit in Suffolk Superior Court in 2014 and appealed that court’s decision to the Supreme Judicial Court (the “Court”). In its opinion and remand, the Court ruled that the Department could withhold birth and marriage indices under exemptions (a) and (c) if the facts showed that records requested could be compared against later- requested records to reveal information protected from public disclosure by statute. The Court instructed the Superior Court to determine whether the risk of revealing such information brings the requested indices within the scope of exemptions (a) and (c)… Further, this private information is specifically protected by statute. See G.L. c. 46, s. 13(h)…

Helen Rush-Lloyd SPR26/0728 Page 5 March 16, 2026 The requested records are categorically exempt from disclosure under G.L. c. 4, §7(26)(a) because they are exempt by statute or necessary implication thereof. The marriage record information you requested also constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (“FIPA”). If DPH disclosed such information, it may be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA)… Based on the Department’s response, it is unclear how the above referenced statutes permit it to withhold the responsive marriage index data from disclosure. Specifically, the Department has not demonstrated that the records requested by Mr. Ferretti constitute the type of “amended, corrected, or supplemented record[s]” contemplated under G. L. c. 46, § 13(h). 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, although the Department cites G. L. c. 46, § 13(h), it is unclear how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. The Department must clarify this. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Helen Rush-Lloyd SPR26/0728 Page 6 March 16, 2026 The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Department argued: The Court acknowledged that with respect to exemption (c) there may be “a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes.” See Boston Globe Media Partners, LLC., 482 Mass. at 428 (2019)... The Department maintains the position that the information you have requested is exempt from disclosure. The disclosure of comprehensive electronic marriage files could be used to compare marriage data over time to identify individually identifiable records that are restricted from disclosure by law and constitute intimate details of a highly personal nature. For example, Massachusetts law permits an individual to amend a marriage record following a legal name change and gender change. As part of that amendment process, certain fields, such as the sex designation, may be removed from the marriage record, and the individual’s name may be updated to reflect their legal name at the time of the amendment. The ability of any member of the public to compare these records over time and thereby identify confidential information following amendments is at the core of the Court’s concerns about the privacy risks in the compilation of vital records… The marriage record information you requested also constitutes personal data protected from disclosure… pursuant to G.L. c. 4, §7(26)(c) as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. This information is of a highly personal nature and contains specific details. The individuals’ privacy interests outweigh the public’s interest in disclosure. Based on the Department’s response, it is unclear how the responsive marriage index data constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department must provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. It should be noted that any non-exempt, segregable

Helen Rush-Lloyd SPR26/0728 Page 7 March 16, 2026 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department 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 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alec Ferretti Dean DiMartino