Keywords:   Public Records. Department of Public Health. Privacy. Statute, Construction
In a decision issued today from the SJC, the Court has remanded a Superior Court decision which, briefly, allowed withholding of certain birth and marriage data. The Superior Court relied on 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 Superior Court did not agree with the public body as to exemption (a), which provides in part “exempts from the definition of public records “materials or data” that are “specifically or by necessary implication exempted from disclosure by statute.” In remanding the case back to the Superior Court, the SJC instructed that both exemptions need to be reconsidered by the Superior Court. “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.”

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.”

The decision appears to provide further guidance on the applicability of various exemptions to the Public Records Law.

Click here for the full text of the Court’s decision.

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