On Privacy Exemption, Massachusetts High Court Giveth and Taketh Away

CLIENT ALERTS · June 20, 2019

On June 17, the Massachusetts Supreme Judicial Court (SJC) expanded the types of information that can be withheld from the public under the “privacy” exemption to the Public Records Law.  This malleable exemption applies to records the disclosure of which would “constitute an unwarranted invasion of privacy,” and it has been used to withhold information on subjects ranging from police misconduct to animal research.

The decision, Boston Globe Media Partners, LLC v. Department of Public Health, SJC-12622, involved a request by the Globe for birth and marriage data held by the Department of Public Health.  In a decision sending the case back to the Superior Court for more factfinding, the SJC held that the privacy exemption can apply to records that (1) don’t contain highly personal or intimate information, (2) don’t implicate privacy interests on their own, but only do so in combination with other documents, and (3) are already available to the public in another form.  However, in welcome news for journalists, the SJC expanded the kinds of public interests that courts must balance against asserted privacy interests in determining whether disclosure is warranted.

The case arose from the denial of the Globe’s request to the Department of Public Health (DPH) for birth and marriage indices for every person born or married in the Commonwealth from 1953 to the present.  The Globe had every reason to think this database would be released—after all, DPH makes its birth and marriage database available through public computer terminals, and through requests for individual birth and marriage certificates.  To advance its data-based journalism, the Globe was simply seeking an electronic copy of this public database so it could review trends, quickly identify people in the news, and determine whether DPH was accurately keeping these vital records.

Traditionally, Massachusetts courts have held that disclosure of a government record only amounts to an “unwarranted invasion of privacy” under the privacy exemption if it discloses “intimate details of a highly personal nature.”  If no highly personal information was involved in the request, the exemption didn’t apply.  If such information was sought, however, courts would balance the public interest in disclosure against privacy concerns.

In 2017, the SJC signaled a different approach.  In a case involving a request by People for the Ethical Treatment of Animals (PETA) for the names and business addresses of animal researchers, the Court hinted that the privacy exemption might require a balancing of the public and private interests in every case in which a privacy interest is asserted, even if no “highly personal” information was at issue.  However, the court didn’t overrule its previous decisions limiting the exemption.

In Globe, the Court affirmed that the privacy exemption now applies beyond highly personal information.  The Court recognized that birth and marriage information is not especially “intimate” or “personal.”  However, the Court expressed the concern that in certain cases, it would be possible to deduce medical or other private information by comparing one version of the database to a later version.  Such comparison, the Court suggested, could reveal the names of an adopted individual’s biological parents, or the sex assigned at birth to an individual who has since completed sex-reassignment surgery.  The SJC remanded the case to the lower court to make more findings on this issue.

In the course of analyzing the privacy exemption, the SJC also held for the first time that the greater the number of people whose information is sought, the more likely the privacy exemption applies.  The Globe had urged that the broad-yet-shallow database of information it had requested raised less privacy concern than detailed, “vertical” profiles of individuals, such as compilations of criminal histories.  The Court, however, found that the request sought “a fair amount of personal information,” and thus “it matters how many individuals the records implicate: the more people affected by disclosure, the greater the privacy concerns.”

Even as the Globe court expanded the reach of the “privacy” exemption, it broadened the range of public interests that can be invoked to defeat it.  DPH had argued that there was no public interest in the database because its release would not shed light on government functions.  The SJC rejected this narrow view of “public interest.”  The government collects and keeps a great deal of information relevant to societal issues, the Court observed, and “[i]nformation is the bread and butter of democracy.”  Thus, in balancing the public interest against privacy concerns, courts should consider the societal value of the requested information even if it doesn’t relate to questions of government efficiency.

In short, the SJC has expanded the terrain on which “privacy” battles must be fought, and has given the media new ammunition to win them.

To learn more about the information presented here, please contact Jeffrey J. Pyle, the author of this alert, at 617.456.8143 or jpyle@princelobel.com, or, Michael J. Lambert at 617.456.8116 or mlambert@princelobel.com, members of Prince Lobel’s Media and First Amendment Law Practice Group.