Heard: January 10, 2019.
case was heard by Karen F. Green, J., on motions for summary
judgment. The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Jonathan M. Albano for the plaintiff.
William W. Porter, Assistant Attorney General, for the
D. Brown, Katie Townsend, & Caitlin Vogus, of the
District of Columbia, Andrew F. Sellars, & Julissa
Milligan, for Reporters Committee for Freedom of the Press
& others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, &
public records case, Boston Globe Media Partners, LLC
(Globe), appeals from an order of the Superior Court granting
the Department of Public Health's (DPH) motion for
summary judgment and denying the Globe's motion for
summary judgment. The Globe asked the judge to declare that
electronic indices of publicly available birth and marriage
data constitute public records and to order DPH to produce
them. DPH argued that it could withhold the requested indices
pursuant to G. L. c. 4, § 7, Twenty-sixth (a) (exemption
[a.]), which exempts from the definition of public records
"materials or data" that are "specifically or
by necessary implication exempted from disclosure by
statute." DPH also argued that it could withhold the
requested indices pursuant to G. L. c. 4, § 7,
Twenty-sixth (c) (exemption [c] ), which exempts
from the definition of public records "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." The judge concluded DPH could
withhold the indices pursuant to exemption (c), but not
pursuant to exemption (a) .
remand for further proceedings on both exemptions. The
Globe's request necessitates an approach to exemption (a)
that takes into account future requests for the indices. The
application of exemption (c) involves a privacy issue we have
yet to address in the public records context, namely, whether
there is a greater privacy interest in a compilation of
personal information than in the discrete information that a
compilation summarizes. We conclude that, in certain
circumstances, there is.
respect to exemption (a), the judge on remand should make
factual findings about the extent to which the indices
requested here could be compared against later-requested
indices to reveal information protected from public
disclosure by statute. The judge should then determine
whether the risk of revealing such information brings the
requested indices within the scope of exemption (a) .
respect to exemption (c), which protects personal privacy,
the judge on remand should first decide the extent to which
the indices requested here could be compared against
later-requested indices to reveal medical information
absolutely exempt from the public records law. If necessary,
the judge should then decide whether there is a privacy
interest in the requested indices. To do so, the judge should
make further findings on (1) the extent to which multiple
indices could be compared to reveal private information; (2)
whether the requested compilation is already available in the
aggregate form requested or, if not, the ease with which it
can be assembled from public information; (3) whether DPH has
shown that releasing the indices could pose a risk of
identity theft or fraud; and (4) the extent to which the
indices could facilitate unwanted intrusions.
there is a privacy interest in the requested indices, then
the judge should decide whether the public interest in
disclosure substantially outweighs that interest. People
for the Ethical Treatment of Animals, Inc. v.
Department of Agric. Resources, 477 Mass. 280, 291-292
(2017) (PETA). Because we have yet to precisely
define the contours of this public interest analysis, we
clarify that the public interest is not limited to the
interest in learning about government operations. To fully
analyze the public interest here, the judge should make
further findings on (1) whether the Globe could use the
indices to learn about government by scrutinizing whether DPH
is properly recording births and marriages, and (2) whether
releasing the indices could serve public interests other than
the interest in learning about government.
following background is taken from the parties'
stipulated facts and exhibits. A Globe reporter submitted a
public records request to DPH for electronic indices of the
publicly available birth, marriage, divorce, and death
records maintained by DPH's Registry of Vital Records and
Statistics (registry). The Globe later clarified that it was
requesting only "an electronic copy of the most
up-to-date [indices] made available to the public on computer
terminals in the [r]egistry's research room." The
request did not include indices from the nonpublic Vitals
Information Partnership (VIP) centralized database, which
contains birth data.
registry maintains a research room that is open eleven hours
per week. The research room includes searchable databases
publicly accessible on computers for nine dollars per hour.
The computers do not have a print function, although there
are no restrictions on transcribing information found on the
computers. At the time the stipulated facts were filed in the
Superior Court, the databases included information about
births occurring in Massachusetts from 1953 through
approximately January 2011 and marriages occurring since
1983. Births occurring after approximately January 2011 were
recorded only in the VIP database, which was not accessible
through the public computers. Each entry in the marriage
database included last name, first name, date of marriage,
spouse, place where the license was filed, certificate
number, and the location of the paper record in the
registry's vault. Although not entirely clear from the
stipulated facts, entries in the birth database seem to have
included last name, first name, middle name, date of birth,
place of birth, gender, names of parents, and the location of
the record in the vault.
and marriage information is available other than through the
registry's public computer databases. For example, the
public may inspect, but may not photocopy, printed birth and
marriage indices in the registry's research room. The
public also may request individual birth and marriage
certificates from the registry or from the relevant city or
DPH did not respond to the Globe's request, the Globe
appealed to the supervisor of records (supervisor) in the
Secretary of State's office. See G. L. c. 66, § 10A
(a) . The supervisor ordered DPH to disclose the records. DPH
provided the Globe with responsive death and divorce
information, but declined to release the requested birth and
marriage indices. The Globe appealed, and the supervisor
again ordered DPH to disclose the requested information.
However, in response to DPH's request for
reconsideration, the supervisor decided that DPH could
withhold the birth and marriage indices pursuant to exemption
(a) . The supervisor did not rule on DPH's exemption (c)
claim, stating only that DPH made "a compelling
argument" that the indices could also be withheld under
exemption (c) .
Globe then commenced an action against DPH in Superior Court,
seeking declaratory and injunctive relief under the public
records law, G. L. c. 66, § 10, and the declaratory
judgment act, G. L. c. 231A, § 1. See G. L. c. 66,
§ 10A (c0 . In granting DPH's motion for summary
judgment based on the parties' stipulated facts and
exhibits, the judge concluded that DPH could withhold the
indices pursuant to exemption (c0, but not pursuant to
exemption (a) . The Globe appealed. We transferred the case
to this court on our own motion.
reasons discussed below, we remand for further proceedings
with respect to exemptions (a) and (c) .
review "a grant of summary judgment de novo . . . to
determine 'whether . . . all material facts have been
established and the moving party is entitled to judgment as a
matter of law'" (citation omitted). District
Attorney for the Northern Dist. v. School Comm. of
Wayland, 455 Mass. 561, 566 (2009), quoting Augat,
Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117,
120 (1991) .
public records law, G. L. c. 66, § 10 (a), requires the
government to release upon request materials that fall under
the definition of "[p]ublic records," G. L. c. 4,
§ 7, Twenty-sixth. There is a statutory presumption of
disclosure of such records. G. L. c. 66, § 10A (d) (1)
(iv) ("a presumption shall exist that each record sought
is public and the burden shall be on the defendant agency or
municipality to prove, by a preponderance of the evidence,
that such record or portion of the record may be withheld in
accordance with [S]tate or [F]ederal
law"). Therefore, "the statutory exemptions
[from the definition of public records] must be strictly and
narrowly construed." Globe Newspaper Co. v.
District Attorney for the Middle Dist., 439 Mass. 374,
380 (2003) (District Attorney for the Middle Dist.),
quoting General Elec. Co. v. Department of
Envtl. Protection, 429 Mass. 798, 801-802 (1999),
overruled on other grounds by DaRosa v. New Bedford,
471 Mass. 446 (2015).
argues that the requested indices are exempt from the
definition of public records by G. L. c. 4, § 7,
Twenty-sixth (a), which encompasses "materials or
data" that are "specifically or by necessary
implication exempted from disclosure by statute." DPH
points to five statutes that purportedly exempt the requested
indices from disclosure: the statute establishing the VIP
database, two statutes that expressly remove certain birth
data from the public records law, a statute that impounds
certain vital records, and a statute that addresses the
amendment of vital records. We conclude that the statute
establishing the VIP database pertains to information the
Globe is not requesting and, therefore, does not exempt the
requested indices from disclosure. The same can likely be
said for the statutes removing certain birth data from the
public records law. However, we remand for further findings
about the extent to which the indices requested here could be
compared against later-requested indices to reveal
information protected from public disclosure by the statutes
addressing the impoundment and amendment of vital records.
VIP database statute.
Laws c. 46, § 33, first par., mandates that the Registry
establish a "centralized, automated database for the
system of vital records and statistics." The registry
implements § 33 through the VIP database. Because the
VIP database is not available on the registry's public
computers, the Globe is not requesting data from it.
Therefore, § 33 does not prohibit disclosure of the
requested indices. DPH argues that § 33 "reflects a
policy against bulk dissemination of birth and marriage
information, regardless of where a discrete record happens to
be registered at a particular time." We disagree. Even
if the VIP database may not be accessed through the public
records law, an issue we do not decide, information in the
database that is not otherwise exempt from disclosure may
still constitute a public record if stored in a repository
that is subject to a public records request. Cf. Hastings
& Sons Publ. Co. v. City Treas. of Lynn,
374 Mass. 812, 820 n.10 (1978) (where tax returns are
confidential by statute and "information contained in
[requested] payroll records can also be found in tax
returns," payroll records may still be disclosed).
Statutes expressly removing certain birth data from
public records law.
suggests that two statutes, G. L. c. Ill. § 24B, and G.
L. c. 46, § 4A, that expressly remove from the public
records law certain birth information, also remove from the
publics records law the birth data in the requested indices.
Because the birth data in the indices does not appear to be
governed by either § 24B or § 4A, we disagree.
data sent to the Commissioner of Public Health (c)mmissioner)
is exempt from the public records law. G. L. c. Ill. §
By contrast, birth data is transmitted to the registry,
either directly or through local clerks, pursuant to statutes
that do not implicate the public records law. See, e.g., G.
L. c. 46, § 3A ("person in charge of a
hospital" must file birth reports "with the town
clerk of the city or town wherein the birth occurred"
and, "[i]f the hospital . . . delivers more than
[ninety-nine] births per year, [the birth] report shall be
prepared on an electronic system of birth registration . . .
and transmitted to the [S]tate registrar [of vital records
and statistics]"); G. L. c. 46, § 17 ("clerk
of each town and of each city shall . . . transmit to the
[S]tate registrar [of vital records and statistics] . . . the
original records of . . . births"). These latter
statutes seem to apply to the registry birth information from
which the requested indices are derived.
same reasoning applies to G. L. c. 46, § 4A, which
removes from the public records law birth lists sent from
town clerks to local boards of health. Unlike these
lists, birth information transmitted from town clerks to the
registry is governed by statutes that do not mention public
records. See, e.g., G. L. c. 46, § 17.
G. L. c. Ill. § 24B, and G. L. c. 46, § 4A, do not
appear to govern the transfer of birth information to the
Registry, they likely do not preclude the disclosure of
indices derived from Registry databases. As discussed
supra, information in repositories exempt from the
public records law may still be public if located in a
repository that is not exempt. And by removing from the
public records law birth information transmitted to the
commissioner and to local boards of health, but not removing
from the public records law birth information transmitted to
the registry, the Legislature demonstrated an intent not to
exempt the latter information.
Statutes addressing impoundment and amendment of vital
a court order, G. L. c. 46, § 2A, permits only specified
individuals to examine particular vital records, including
those of children born to unmarried parents. Unlike the
statutes we have already addressed, § 2A restricts
access to particular records regardless of where those
records are deposited or how they are transmitted. Cf.
District Attorney for the Middle Dist., 439 Mass. at
383 (under criminal offender record information [CORI]
statute, "court record's status as a public record
does not depend on the identity of the custodian from whom
that public record is sought"). Although § 2A does
not address the public records law, it exempts certain
records from disclosure by impounding them. Cf.
District Attorney for the Middle Dist.,
supra at 381, 383, quoting G. L. c. 4, § 7,
Twenty-sixth (a) (where criminal offender record information
may be disseminated only to particular individuals and
entities under CORI statute, that statute "operates as
an exception to the definition of '[p]ublic
Laws c. 46, § 13 (h), requires local clerks or the
registry to amend vital records. Other subsections of G. L.
c. 46, § 13, set forth the specific changes that warrant
amendment: a change in status from having been born to
unmarried parents to having been born to married parents,
which may occur if certain procedures are followed after
parents marry, G. L. c. 46, § 13 (c); acknowledgment or
judgment of paternity, G. L. c. 46, § 13 (d); medical
intervention for sex reassignment, G. L. c. 46, § 13
(e_); withdrawal of acknowledgment of paternity or judgment
of nonpaternity, G. L. c. 46, § 13 (f_); and adoption,
G. L. c. 46, § 13 (g_) . Absent court order, § 13
(h) allows only particular individuals to examine the