Are Terror Suspects’ Government Benefits a “Public Record”?

April 26, 2013

Friday, April 25, 2013

The Boston Herald’s report that Tamerlan Tsarnaev and his parents received state welfare benefits has set off a public debate over whether, as the Herald put it, Tsarnaev “financed his radicalization on taxpayer money” – and (to put it less ideologically) whether taxpayers have a right to know  what government benefits the brothers may have received over recent years.

A Herald reporter called me yesterday to ask whether such data is public record under state law, and I answered him as best I could on short notice.  With this post, I’m sharing my thoughts in somewhat greater detail than the Herald could reproduce in today’s article.  And I’m also reaching out to other public records experts for their insights.  (Is it possible to crowdsource an answer to a legal question?)  I invite those with knowledge of the applicable law to contribute their insights in the “comments” below.

Here’s the background.  On Tuesday, April 23, 2013, in response to the Herald’s inquiries, the state Executive Office of Health and Human Services issued a statement saying that while neither of the Tsarnaev brothers received transitional assistance benefits during 2013, both of them had received such benefits “through their parents when they were younger,” and Tamerlan, the now-deceased bomber, along with his wife and child, “received benefits until 2012, when the family became ineligible based on their income.” 4.26.13

On Thursday, the Herald reported that its survey of federal, state, and local agencies about benefits received by the Tsarnaevs yielded few answers.  The Cambridge Housing Authority declined to say whether the family received Section 8 housing assistance.  The Federal Communications Commission wouldn’t tell whether the Tsarnaevs participated in a program providing free cell phones to individuals on government assistance.  The Department of Unemployment Assistance said state law forbade it from revealing whether the brothers received unemployment benefits.  UMass Dartmouth declined to reveal whether Dzokhar Tsarnaev received financial aid there, citing federal privacy laws – presumably FERPA.  And so on.

The Globe reported on Thursday that the state’s Department of Transitional Assistance was “walking back the release” of the welfare information.  In a statement, the agency said,
“State and federal laws prohibit disclosing information about individuals accessing a wide array of benefits. This week, the Department of Transitional Assistance, in an effort to be responsive to public inquiries, inappropriately confirmed information about the Tsarnaev family. Disclosing such information is not allowed by law. Regardless of the circumstances, we are obligated to follow state and federal law.”

Boston Herald

As the issue increasingly became politically sensitive, the Globe’s news story said Gov. Deval Patrick had justified the decision not to release further information as having “nothing to do with the accused terrorists’ privacy rights, and everything to do with abiding by the law.”

This morning’s Herald says the Patrick Administration has decided to release the welfare benefits records to a legislative oversight committee, but not to the public.  According to today’s article, the governor’s spokesperson said the  law permits disclosure of the welfare information to lawmakers, but not to the public generally.

The Legal Landscape

The state’s Public Records Law is built around the presumption that records held by public agencies are open to the public.  Like most such laws, however, the statute contains dozens of exceptions, the first of which says that a document is not a public record if it is “specifically or by necessary implication exempted from disclosure by statute.”  In other words, if the law establishing a particular government benefits program says that information about recipients is categorically private, that’s the end of the analysis.  I assume that the Patrick Administration’s latest position on release of welfare benefits – disclosable to legislators but not the public — is based on such a provision in the DTA’s governing statute, which provides, at Gen. Laws c.66, sec. 17A, that  while welfare records are “public records,” they are open only to “public officials.”   Similarly, the refusal by UMass-Dartmouth to reveal Dzokhar Tsarnaev’s financial aid package is probably related to its interpretation of provisions of the federal Family Educational Rights and Privacy Act (FERPA), which generally prohibits the release of a college student’s education records without the student’s consent.

Some of the other benefits programs into which the Herald was inquiring may be subject to particular legal restrictions on release of that information – restrictions that are baked into the statutory schemes – and I won’t pretend to be an expert on each of those statutes.  But if that’s the case, the government ought to identify what those particular legal provisions are.

In the absence of specific legal restrictions built into the laws themselves, though, the question under Massachusetts law comes down to whether these suspects’ privacy rights trump the people’s right to know whether the suspects were receiving government benefits.  Whether an individual is receiving unemployment,  welfare payments, or other government benefits, appears to be recognized as “private” information under Massachusetts law, but that doesn’t necessarily mean it is off-limits to the public.  As the Supreme Judicial Court said in one case, “Where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest.”  Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979).

Under state law, putting aside any disclosure restrictions in the benefit programs themselves, there are two laws at play.  The first is the state’s information privacy law, G.L. c. 66A, which says, broadly speaking,  that state agencies may not divulge personal data about individuals unless the information falls within the definition of a “public record.”  The second is the state public records law, G.L. c. 66, and G.L. c. 4, sec. 7, cl. 26, which says that records held by the state are public records, and must be disclosed, unless a particular exemption applies.  One such exemption is if the government can show that disclosure would be an “unwarranted” invasion of an individual’s privacy.

Interpreting those two laws together, the state’s Supreme Judicial Court ruled in 1984 that the government must withhold personal data about individuals unless it’s shown  that there’s a public interest in disclosure that outweighs the individual’s privacy interests.   Torres v. Attorney General, 391 Mass. 1 (1984). But once that showing is made, the information must be made public.  Interestingly, the personal privacy exemption is one of very few places within the definition of “public records” where, as the Supreme Judicial Court explained, the statute calls “for a balancing of interests rather than for an objective determination of fact.”

The comments columns of the Herald and this week’s debates on Fox News are evidence that there’s a significant public interest in whether taxpayer dollars may have, even indirectly, helped to fund the Boston Marathon bombings and the murder of Officer Collier.  (What political conclusions one draws from that information is, of course, another story.)  On the other side of the scale are the privacy interests of one suspect who is deceased, perhaps that suspect’s surviving wife and child, and a second suspect who has been charged with using weapons of mass destruction.

Obviously, my thoughts here only scratch the surface of this legal issue.  I invite readers who are experienced in the intricacies of Massachusetts and federal public records laws to add your insights in  the comments below.

If you have questions, please contact Robert A. Bertsche , a partner in Prince Lobel’s Media Practice. You can reach Rob at 617 456 8018 or

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