Thеse consolidated actions for declaratory and injunctive relief raise identical questions under the Massachusetts public records statute, G. L. c. 66, § 10. In each case, the plaintiff requested disclosure of a limited subset of information that the Department of Industrial Accidents (depart
Background. Under G. L. c. 152, § 6, inserted by St. 1991, c. 398, § 18, employers must promptly notify the department “of any injury alleged to have arisen out of and in the course of employment which incapacitates an employee from earning full wages for a period of five or more calendar days.” This notice, which is to be given on a prescribed form entitled “Employer’s First Report of Injury or Fatality,” must “contain the name and nature of the business of the employer, the name, age, sex, and occupation of the injured employee, and the date, nature, circumstances and cause of the injury and such additional information as the division shall prescribe.” Ibid. The employer must also provide this notice to its workers’ compensation insurance carrier
The record reflects that, for a number of years prior to 2003, the plaintiffs, each of whom is an attorney practicing in the Commonwealth, had regularly requested, pursuant to G. L. c. 66, § 10, that the department provide certain limited information from the first reports, specifically: the employee’s name and
Both plaintiffs appealed the department’s response to their public records request to the supervisor of records pursuant to G. L. c. 66, § 10(¿>). The supervisor of records then determined that the “responsive names and addresses of the injured employees may properly be redacted from the record prior to disclosure” under the second clause of exemptiоn (c), which is intended to protect “intimate details of a highly personal nature.” According to the supervisor of records, because “[t]he records in question disclose the names and addresses of employees who have suffered bodily injury and have applied for assistance under the Workers Compensation Law,” the names and addresses are “personal information in which the employeе has a legitimate privacy interest[,] . . . information that is not normally shared with members of the general public. Disclosure ... as recipients of workers compensation benefits could have adverse effects on these individuals. The public interest ... is minimal.”
The plaintiffs brought separate complaints for declaratory and injunctive relief in Superior Court, which were later consolidated; thereafter, thе judge heard cross motions for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c),
On appeal, the department claims error in the judge’s application of exemption (c) to the public records statute.
Analysis. We begin by noting that G. L. c. 66, § 10, the public records statute, was enacted “tо give the public broad access to government documents.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, Inc.,
In determining whether this exemption applies, two considerations are pertinent. First, “[g]iven the statutory presumption in favor of disclosure, exemptions must be strictly construed.” Attorney Gen. v. Assistant Commr. of the Real Property Dept. of Boston,
Second, the relevant clause of exemption (c) was amended in 1977 to modify the word “privacy” by adding before it the word “unwarranted.” This amendment “in essence broadened the range of information that might be available as public records.” Torres v. Attorney Gen.,
. . . particularly suggests a . . . balancing of the public’s right to know as reflected in the Commonwealth’s public records law, and the individual’s right to protection against an unwarranted intrusion into his privacy. The exemption of subclause (c) appears to be the only exemption in the definition of ‘public records’ calling for a balancing of interests rather than for an objective determination of fact.” Torres v. Attorney Gen., supra at 9. Accordingly, analysis of the applicability of the second
The motion judgе determined that there - was no privacy interest whatsoever implicated in the disclosure of the injured employees’ names and addresses and hence no need to engage in the aforesaid balancing. She used as her primary touchstone the inquiry whether such information constitutes “intimate details of a highly personal nature.” Concluding that the subject information is not comparable to matters that have been determined to fall into that category, id. at 626 n.2 (marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcohol consumption, family fights, and reputation), the judge determined that disclosure of injured employees’ names and addresses would not be an invasion of privacy.
The judge correctly observed that Massachusetts courts have generally concluded that names and home addresses are not inherently private or personal in nature. See, most recently, Cape Cod Times v. Sheriff of Barnstable County,
Whether a privacy interest is implicated in these circumstances requires a somewhat more nuanced examination. While disclosure of the names and addresses of adults does not, per se, establish an invasion of privacy, see Federal Labor Relations Authy. v. United States Dept. of the Navy,
Here, more than just the employees’ names and addresses would be disclosed — also disclosed, of necessity, would be the fact that the identified employees are sufficiently disabled to be out of work five or more days. It is, of course, to be expected that lists or compilations of names and addresses will be made or kept for a reason rather than on a randоm basis, and that they will thus be delimited by what the United States Court of Appeals for the District of Columbia Circuit has termed a “defining characteristic.” “The extent of any invasion of privacy . . . depends upon the nature of the defining characteristics, i.e., whether it is significant that an individual possess them.” National Assn. of Retired Fed. Employees v. Horner,
The affected employees here are not public employees who
Finally, while the requested information does not fall within the first clause of exemption (c) (exempting medical and personnel files), we discern at least a distant kinship to that clause notwithstanding the generality of the subject information as to the employees’ disability. See Globe Newspaper Co. v. Boston Retirement Bd.,
In view of the foregoing, we are satisfied that the judge erred in concluding that no privacy interest whatsoever would be implicated in the disclosure of the requested information. It follows from this that the judge was required to but did not balance that invasion of privacy — whatever its extent may be — with such public interest as might be furthered by disclosure. The matter, however, was before the judge on cross motions for judgment on the pleadings. From our examination of the record, it is plain that all that was before the judge on the latter point was contained in the attachments to Ellis’s complaint and referred to in the allegations of paragraph 8 of that complaint.
So ordered.
Notes
Within fourteen days of the insurer’s receipt of its insured’s first report, it must either begin paying the injured employee weekly benefits or give notice of its refusal to do so. G. L. c. 152, § 7(1).
It appears from the record on appeal that all that was before the judge in connection with these motions were the complaints, answers, and legal memoranda. Georgiou’s complaint incorporated his March 24, 2003, public records request to the department while Ellis’s complaint incorporated three attachments: his May 12, 2003, public recоrds request and the department’s May 20, 2003, response thereto; his May 29, 2003, appeal to the supervisor of records; and the supervisor’s July 10, 2003, administrative order.
The department also claims error in the judge’s purported failure to take into consideration restrictions placed on agency disclosure of personal identifying information by virtue of the Fair Information Practices Act, G. L. c. 66A, § 2(c) (FIFA). We observе in this regard that the department does not appear to have brought this point specifically to the motion judge’s attention. The record appendix contains no such reference. The legal memoranda before the motion judge that were fortuitously appended to one of the defendants’ appellate briefs suggests that the department only cited to case law that discussed FIFA along with the State public records statute; the department had neither indicated its reliance on FIFA itself nor based any legal argument on restrictions placed on the department by virtue of FIFA. The only basis on which the department ever resisted disclosure was G. L. c. 4, § 7, Twenty-sixth. This case, accordingly, arose under the State public records statute, unlike Torres v. Attorney Gen.,
We see nothing in the submissions before the motion judge to support this.
In general, G. L. c. 4, § 7, Twenty-sixth, is patterned after the Federal Freedom of Information Act, 5 U.S.C. § 552(b) (1976). Globe Newspaper Co. v. Boston Retirement Bd.,
In a 1977 opinion, the Attorney General advised the department that “disclosure of personal information concerning an employee’s name and home address ... is information in which the employee has a legitimate privacy interest.” Rep. A.G., Pub. Doc. No. 12, at 91 (1977).
Ellis set out examples of ways in which disclosure of the subject information was necessary to achieve and would promote both the public interest generally, and the legal and medical interests of the affected employees.