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Boston Globe Media Partners, LLC v. Department of Public Health

Supreme Judicial Court of Massachusetts, Suffolk

June 17, 2019

BOSTON GLOBE MEDIA PARTNERS, LLC
v.
DEPARTMENT OF PUBLIC HEALTH.

          Heard: January 10, 2019.

         The 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 defendant.

          Bruce 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, & Cypher, JJ.

          LOWY, J.

         In this 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) .

         We 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.[1] We conclude that, in certain circumstances, there is.

         With 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) .

         With 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.

         If 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.[2]

         Background.

         The 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.

         The 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.[3] 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.[4]

         Birth 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 town.

         After 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) .

         The 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.

         For the reasons discussed below, we remand for further proceedings with respect to exemptions (a) and (c) .

         Discussion.

         We 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) .

         The 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").[5] 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).

         1. Exemption (a).[6]

         DPH 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.[7] 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.

         a. VIP database statute.

         General 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).

         b. Statutes expressly removing certain birth data from public records law.

         DPH 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.

         Birth data sent to the Commissioner of Public Health (c)mmissioner) is exempt from the public records law. G. L. c. Ill. § 24B.[8] 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.[9]

         The 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.[10] 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.

         Because 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.[11]

         c. Statutes addressing impoundment and amendment of vital records.

         Absent 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.[12] 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.[13] 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 records'").

         General 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 ...


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