Globe Newspaper Co. v. Boston Retirement Bd.

• Decision Date: 14 March 1983
• Citation: 388 Mass. 427,446 N.E.2d 1051
• Parties: , 9 Media L. Rep. 2309 GLOBE NEWSPAPER COMPANY, et al. 1 v. BOSTON RETIREMENT BOARD (and two companion cases 2 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1051

446 N.E.2d 1051

388 Mass. 427, 9 Media L. Rep. 2309

GLOBE NEWSPAPER COMPANY, et al. ¹ v. BOSTON RETIREMENT BOARD (and two companion cases

²

).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 4, 1982.

Decided March 14, 1983.

James F. McHugh, Boston (Jeanie M. Duncan, Newton, with him), for Globe Newspaper Company & another.

Stephen M. Limon, Asst. Atty. Gen., for the Attorney General.

Robert J. Muldoon, Jr., Boston (Devra G. Bailin, Cambridge, with him), for Boston Firefighters, Local 718, Intern. Ass'n of Firefighters, AFL-CIO.

Thomas R. Paxman, Boston (Philip P. Rossetti, Boston, with him), for Boston Retirement Bd.

Frank J. McGee, Marshfield, for Boston Police Patrolmen's Ass'n, Inc., intervener, submitted a brief.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LIACOS, Judge.

The Globe Newspaper Company and its reporter Stephen A. Kurkjian (Globe) commenced this action in the Superior Court seeking to obtain access to certain records held by the Boston retirement board and its members (Board), pertaining to disability pensions. After the Globe's action was consolidated with the actions discussed below, a judge of the Superior Court enjoined the Board from complying with an order issued by the Supervisor of Public Records of the Commonwealth (Supervisor) to disclose cursory statements of the medical reasons relied on to grant disability pensions to former employees of the city of Boston.

The procedural history may be summarized as follows. After the Globe filed its action, the Boston Firefighters, Local 718, International Association of Firefighters, AFL-CIO (Firefighters), and the Boston Police Patrolmen's Association, Incorporated (Patrolmen), filed separate actions against the Board, the Globe, and others seeking to restrain the disclosure of the medical statements.

A restraining order barring the release of the statements in issue was entered, ³ and the cases were consolidated. The parties entered into a stipulation requiring the Board to file with the court certain information concerning the documents relating to disability pensions, as contained in its files. The Board also answered several interrogatories concerning the funding of pensions. The Globe then moved for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 824 (1974), asserting that all of the requested records, as matter of law, consisted of nonexempt public records as defined by G.L. c. 4, § 7, Twenty-sixth (c), ⁴ and were subject to mandatory disclosure under G.L. c. 66, § 10. ⁵

The judgment entered by the judge (1) ordered the Board to disclose to the Globe records containing the "names of those receiving disability pensions, the date of the disability pension award, the amount of the disability pension, and the department from which the pension came"; ⁶ and (2) enjoined the Board from disclosing to the Globe "a cursory statement of the medical reason for granting the disability." ⁷ The Globe brings this appeal; the appeal is here on our grant of an application for direct appellate review. We vacate the judgment for entry of a modified judgment on remand.

This controversy arose in the following circumstances. On June 26, 1978, the Globe formally requested access to certain information pertaining to former employees of the city of Boston who were receiving disability pensions. Specifically, the Globe sought (1) the names of all former employees receiving disability pensions from the city of Boston; (2) the dates on which each employee's pension had been approved; (3) the amount received annually by each pensioner; (4) the department in which each person was employed at the time of the person's pension application; and (5) "the medical reason given by each employee in applying and receiving his disability pension, e.g., bad back, heart problem, hypertension, etc." The Board did not formally respond to the request.

On January 12, 1979, the Globe filed a petition with the Supervisor of Public Records seeking an administrative determination as to whether the information sought was subject to mandatory disclosure pursuant to G.L. c. 66, § 10. The Supervisor ordered the Board to make the requested information available to the Globe. The Board refused, and these actions followed. We address the contentions of the parties to the extent necessary to determine this appeal.

1. The public records statute, G.L. c. 66, § 10, requires public access to various records and documents in the possession of public officials. The class of records to which the public must be afforded access is defined in G.L. c. 4, § 7, Twenty-sixth. This section establishes a broad definition of public records but contains nine exemptions. Records falling within the scope of an exemption are not subject to mandatory public disclosure under G.L. c. 66, § 10. ⁸ At issue in this appeal is the scope of G.L. c. 4, § 7, Twenty-sixth (c ), as amended by St.1977, c. 691, § 1, which excludes from the definition of public records "personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."

We are asked to decide whether the clause, "the disclosure of which may constitute an unwarranted invasion of personal privacy," modifies the first phrase, "personnel and medical files or information," or only applies to the second phrase, "also any other materials or data relating to a specifically named individual." If the modifying clause does not apply to the first phrase, we must defer to the Legislature's decision that medical files or information are absolutely exempt from disclosure. ⁹

We begin our analysis by applying "the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231, 431 N.E.2d 225 (1982), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133, 85 N.E.2d 232 (1949). Hopkins v. Hopkins, 287 Mass. 542, 547, 192 N.E. 145 (1934). See G.L. c. 4, § 6. The use of a semicolon usually indicates that each clause is intended to be independent. Moulton v. Brookline Rent Control Bd., supra, 385 Mass. at 231-232, 431 N.E.2d 225. Commonwealth v. Kelley, 177 Mass. 221, 58 N.E. 691 (1900). We are aware, however, that matters of punctuation are not necessarily determinative and should not be allowed to defeat the true purpose and meaning of a statute. See Dowling v. Assessors of Boston, 268 Mass. 480, 488, 168 N.E. 73 (1929). We therefore consider whether other factors require that a different construction be adopted from that which is indicated by a literal, grammatical reading of the statute.

We continue with a comparison of the exemption with its Federal counterpart. ¹⁰ Such comparison gives little solace to the Globe's cause. If the language of a statute differs in material respects from a previously enacted analogous Federal statute which the Legislature appears to have considered, a decision to reject the legal standards embodied or implicit in the language of the Federal statute may be inferred. ¹¹ International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 854-855, 443 N.E.2d 1308 (1983). The Federal statute exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6) (1976). This language clearly implies that the words "personnel" and "medical" files are subject to the qualifying language of the modifying clause. Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

The Massachusetts exemption, however, differs in several material respects. First, it substitutes the phrase "files or information" for the word "files" in the Federal statute. Second, the Massachusetts statute contains a semicolon after the word "information"; the Federal statute contains no such punctuation. Third, the phrase "similar files" in the Federal statute is replaced in the Massachusetts statute by the phrase "also any other materials or data relating to a specifically named individual." These differences between the two statutes reflect a conscious decision by the Legislature to deviate from the standard embodied in the Federal statute concerning the disclosure of medical and personnel information. The absence of a semicolon from the Federal exemption strengthens the view that the semicolon at issue here is not without meaning. Its insertion by the Legislature in G.L. c. 4, § 7, Twenty-sixth (c ), manifests a desire to ensure that the first clause would not be subject to the language of the modifying clause.

The omission of the phrase "similar files" is consistent with this reading of the exemption. Under the Federal statute, the term "similar files" can be defined only with reference to the character of medical and personnel files and hinges on the personal nature of the information contained. Pacific Molasses Co. v. NLRB Regional Office # 15, 577 F.2d 1172, 1179-1181 (5th Cir.1978), and cases cited. See Department of the Air Force v. Rose, supra, 425 U.S. at 376-377, 96 S.Ct. at 1606. Thus, in the Federal statute the phrase "personnel and medical files and similar files" must be read together as a whole. The insertion of the semicolon in our statute, however, shatters the unity of the phrase. It is apparent that the Legislature recognized that it would be inappropriate to use a term which could be interpreted only by referring back to the first phrase of the statute. It seems clear that the Legislature intentionally utilized this method to establish a third category of "materials or data relating to a specifically named individual" which could be applied independently of the first phrase. ¹² We...