Doe v. Registrar of Motor Vehicles

Decision Date30 September 1988
Docket NumberNo. 87-919,87-919
Citation26 Mass.App.Ct. 415,528 N.E.2d 880
PartiesJohn DOE et al. v. REGISTRAR OF MOTOR VEHICLES.
CourtAppeals Court of Massachusetts

Robert L. Hernandez, Malden, (Marian L. Klausner, Cambridge, with him) for plaintiffs.

Countess C. Williams, Asst. Atty. Gen., for Registrar of Motor Vehicles.

Before GRANT, PERRETTA and DREBEN, JJ.

DREBEN, Justice.

For a fee, 1 the Registrar of Motor Vehicles makes available to anyone, including businesses, the following personal data contained in applications for motor vehicle operators' licenses: the name, address, social security number, 2 date of birth, and height of the applicant. At the argument, the plaintiffs waived any claim that the disclosure of their names and addresses violated G.L. c. 66A, § 2, with the result that only the three remaining items are now in issue. The plaintiffs, alleging that this information is "personal data" which may not be disclosed under the Fair Information Practices Act (FIPA), G.L. c. 66A, 3 brought this action under G.L. c. 214, § 3B, seeking declaratory and other relief.

A judge of the Superior Court on cross motions allowed the defendant's motion for summary judgment on the ground that the information was contained in a public record and that FIPA does not protect "personal data" contained in public records. Relying on Direct-Mail Serv., Inc. v. Registrar of Motor Vehicles, 296 Mass. 353, 354-355, 5 N.E.2d 545 (1937), which held that a person engaged in the business of selling information concerning automobile registrations may make copies "of all certificates and licenses of motor vehicles" issued by the Registrar, and also relying on G.L. c. 90, §§ 8 and 30 (the motor vehicle statutes), the judge ruled that these authorities accorded the material public record status and that it was not protected under FIPA. As to the plaintiffs' factual claims--he mentioned only one--he found that intrusive target advertising was not "immediate and present as distinguished from speculative" 4 and, quoting from the language of G.L. c. 214, § 1B, inserted by St.1974, c. 193, § 1, found that being subjected to target advertising is not "an unreasonable, substantial, or serious interference" with the privacy of any of the plaintiffs. 5

In our view the authorities cited by the judge do not confer upon the data public record status. We also conclude that when the materials are considered under the more general definition of "public records" as set forth in G.L. c. 4, § 7, Twenty-sixth, and paragraph (c ) thereof, as amended by St.1977, c. 691, § 1, 6 the plaintiffs have shown a sufficient invasion of privacy to place upon the defendant the burden of justifying that invasion. See Torres v. Attorney Gen., 391 Mass. 1, 10-11, 460 N.E.2d 1032 (1984). Paragraph (c ) exempts from public record status personal data, which, if disclosed, "may constitute an unwarranted invasion of personal privacy." Our focus on appeal on G.L. c. 4, § 7, Twenty-sixth, requires a balancing of the public and private interests involved. When the defendant relied on the motor vehicle statutes and on the Direct-Mail case, no balancing was required, and the defendant was not obliged to show on the record that disclosure is warranted. For this reason and also because the plaintiffs no longer seek protection for their names and addresses, 7 the defendant, if he so requests, is to be given an opportunity in the Superior Court to make an evidentiary showing that disclosure of social security number, date of birth, and height is warranted. If the plaintiffs' social security numbers are to be revealed, the registrar must also show that he has complied with a Federal statute not mentioned by the parties, namely § 7 of the Privacy Act of 1974, Pub.L. No. 93-579, 88 Stat. 1896, 1909, 5 U.S.C. § 552a note (1982).

1. Information not a public record under the motor vehicle statutes. As indicated earlier, the judge ruled that the motor vehicle statutes make the material here in question a public record and, hence, not protected as "personal data" under FIPA. Although FIPA refers only to public records as defined in c. 4, § 7, Twenty-sixth, see note 6 supra, we agree with the judge that if any statute makes the record public, FIPA will not afford protection to the data.

We therefore look to the authorities cited by the judge, also taking into account § 6 of St.1973, c. 1050. In expanding the definition of "public records" in 1973, and in establishing certain exemptions, the Legislature provided in § 6, 8 that the exemptions were not to be construed to exempt any record which fell within the definition of a public record on the effective date of the act, July 1, 1974. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 439, 446 N.E.2d 1051 (1983). 9 Thus, if the material here sought had public record status under the motor vehicle statutes prior to July 1, 1974, it would not be protected under FIPA.

The relevant sections of c. 90 are §§ 8 and 30. Section 8 10 governs the application for a license to operate a motor vehicle. That statute leaves the qualifications of the applicant, for the most part, to the Registrar and does not mention social security numbers or height. The references to age include a minimum age requirement and a direction to the Registrar to determine an applicant's qualifications "without discriminating as to age." Since 1973, submission of evidence of age has been required. Section 8 also describes, to some extent, the contents of a license. Age, social security number, and height are not mentioned, and again, for the most part, the Registrar is to determine the form and contents of the license. 11

A sample of a current license application is included in the record. 12 The application seeks, inter alia, the following information: name, address, social security number, date of birth, height, sex, whether the applicant has been convicted of any crime within the last ten years other than a parking violation, whether the applicant has any physical disability that may prevent safe operation of a motor vehicle, whether he has been treated in the last five years for any heart disorder, epilepsy or fainting spells, alcoholism, drug dependency, or mental illness. In addition, the applicant is questioned concerning the suspension or revocation of prior licenses and whether he is currently taking medication for a mental, nervous, or physical disorder.

Section 30 of G.L. c. 90 makes certain information a public record and, in relevant part, provides:

"A proper record of all applications and of all certificates and licenses issued shall be kept by the Registrar at his main office, and such records shall be open to the inspection of any person during reasonable business hours."

The same provision was in effect at the time of Direct-Mail Serv., Inc. v. Registrar of Motor Vehicles, 296 Mass. 353, 5 N.E.2d 545 (1937).

The section makes public a record of all applications and licenses but does not make the applications or the licenses themselves public documents. Indeed, as the judge found, much of the material contained in the application is not disclosed by the Registrar.

While the data sold may be considered less intrusive by the Registrar than the items not supplied, there is nothing in G.L. c. 90, § 30, which makes the items at issue--age, height, and social security number--public records. Compare Dunhill v. Director, Dist. of Columbia Dept. of Transp., 416 A.2d 244 (D.C.App.1980). We recognize that the Direct-Mail Serv. case, in holding that a person engaged in the business of selling information concerning registrations may make copies of "all certificates and licenses of motor vehicles," used broad language: "the registrar's records are fully impressed with the character of public records, and ... the public generally has with respect to them all the privileges of examination and use which that status affords. G.L. (Ter.Ed.) c. 66, § 10." 296 Mass. at 354, 355, 5 N.E.2d 545.

The persons whose privacy interests were implicated were not before the court, and the broad language of the decision was written in an era prior to the advent of modern data processing technology which permits "the aggregation of pieces of personal information into large central data banks." See Special Legislative Commission on Privacy, First Interim Report, 1975 House Doc. No. 5417, at 15, and at 10, making reference to automobile licenses, and also at 22, where the commission recommended that the use of social security numbers be restricted. We think it doubtful that the Legislature, in enacting § 6 of St.1973, c. 1050, see note 8, supra, intended to incorporate, without subsequent judicial examination, all statements in earlier opinions no matter how old or how expansive. Cf. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 441, 446 N.E.2d 1051.

In any event, we do not consider the Direct Mail Serv. case dispositive of the question whether the items at issue were public records prior to 1974, the effective date of the expanded definition of "public records" and the establishment of certain exemptions. We have examined the record on appeal in that case, and nothing therein suggests that age, height, or social security information 13 was contained in the registry records at the time the case arose. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 2 Mass.App.Ct. 868, 868-869, 316 N.E.2d 625 (1974); O'Neill v. Mencher, 21 Mass.App.Ct. 610, 613, 488 N.E.2d 1187 (1986) (court may take judicial notice of the record of a case).

2. Public record status under G.L. c. 4, § 7, Twenty-sixth. Since we have concluded that neither c. 90, § 30, nor the law prior to July 1, 1974, accords the information relating to age, height, or social security public record status, we look to the general definition of "public records" set out in G.L. c. 4, § 7, Twenty-sixth. That statute, set forth in note...

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