Torres v. Attorney General

• Decision Date: 30 January 1984
• Citation: 460 N.E.2d 1032,391 Mass. 1
• Parties: Jose TORRES 1 v. ATTORNEY GENERAL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1032

460 N.E.2d 1032

391 Mass. 1

Jose TORRES ¹ v. ATTORNEY GENERAL et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 13, 1983.

Decided Jan. 30, 1984.

Linda M. Irvin, Asst. Atty. Gen. (John P. Graceffa, Asst. Atty. Gen., with her), for defendants.

Nadine Cohen, Boston (Paula Mackin, Boston, with her) for plaintiff.

Ernest Winsor, Boston, for Coalition for Basic Human Needs, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

In the course of the defense of an action brought by the plaintiff, Jose Torres, in the United States District Court for the District of Massachusetts against certain State officials, the defendant Assistant Attorney General Fox requested and received in the form of an affidavit from the defendant Prostack, an employee of the Department of Social Services (DSS), certain information in the DSS files concerning Torres. The parties have agreed, "[o]n information and belief," that the affidavit contained "information including, but not limited to, a chronology of ... Torres' geographic location." ³

Information concerning Torres's whereabouts at various times (and whatever other information may have been in the affidavit) may have significance in the determination of his rights in the Federal action. Torres argues that the disclosure of the information concerning him in the DSS affidavit violated the Fair Information Practices Act (FIPA) (G.L. c. 66A, inserted by St.1975, c. 776, § 1). We agree with the decision of the Superior Court judge that the disclosure was made in violation of the FIPA.

The case appears to have been presented solely on a stipulation to relevant facts which the judge largely adopted. In August, 1979, Torres and others commenced the Federal Court action against the Commissioner of the Massachusetts Department of Mental Health, the Commissioner of the Massachusetts Department of Education, the Secretary of the Executive Office of Human Services, and the Governor. Civil Action No. 79-1652-K (D.Mass., August 16, 1979). The Federal Court action seeks the delivery of "appropriate education and mental health services" which, it is alleged, Torres and other emotionally disturbed children and adolescents have been unlawfully denied. The office of the Attorney General through the defendant Fox represents the defendants in the Federal Court action.

Torres, who apparently has attained the age of eighteen while this State proceeding has been pending, had been a client of the DSS. The defendant Prostack, the DSS social worker assigned to Torres's case, had assembled a case file containing confidential and personal information about Torres. A case file typically contains such information as a client's name and address, his residential history, family situation and background, educational history, evaluations by social workers, psychologists, and psychiatrists, and records of any court involvement. It is from Torres's case file that the information contained in the DSS affidavit was obtained. In seeking the information contained in the affidavit, the office of the Attorney General was acting solely for the purpose of defending the Federal Court action.

In February, 1981, Torres's counsel learned of the affidavit and objected to the disclosures made in it. It is agreed that neither Torres nor his parents consented to the release of information concerning him in the DSS files. Neither the affidavit nor its substance has been used in the Federal Court litigation. Although the defendants Fox and the Attorney General declined to agree not to use the information in the DSS affidavit in the Federal Court action, they did agree to give advance notice to Torres's counsel if the defendant Fox should decide to submit the affidavit in court. Attempts to resolve the dispute concerning the DSS affidavit were unsuccessful, and this action followed.

Torres sought equitable and declaratory relief and damages for the alleged release of personal data in violation of the FIPA. The trial judge concluded that the information in the DSS affidavit was "personal data," as defined in the FIPA (G.L. c. 66A, § 1). He further concluded that the disclosure of the information in the DSS affidavit was a violation of the FIPA because that disclosure was not approved by Torres or otherwise authorized by statute or regulation. He entered a judgment enjoining the defendant Fox and the Attorney General from disseminating or using the information taken from Torres's DSS file, in the absence of an appropriate court order. He also enjoined the defendant Prostack and the Commissioner of DSS from disseminating personal and confidential DSS information concerning Torres to the Attorney General in the absence of an appropriate court order. He further ordered the defendant Fox and the Attorney General to destroy all copies of personal and confidential information taken from Torres's DSS file. ⁴ By a subsequent order the judge directed the defendants to pay exemplary damages of $100, attorney's fees of $1,500, and court costs of $40. The trial judge stayed execution of his order pending appeal.

The defendants have appealed, challenging the judge's determination that there had been a violation of the FIPA and further challenging his award of exemplary damages and attorney's fees. Torres has also appealed, arguing that the amount awarded for attorney's fees is unreasonably low. We granted the defendants' application for direct appellate review. We agree with the trial judge's determination that there was a violation of the FIPA. We also agree that Torres is entitled to an award of attorney's fees (and costs), but the obligation to pay that award should be placed solely on the DSS. We agree with Torres that an award of attorney's fees of $1,500 was not adequate on the record, and we remand the case for a redetermination of the amount to be awarded for attorney's fees.

1. We consider first whether the information set forth in the DSS affidavit concerning Torres was of a character generally protected from disclosure under the FIPA. One major objective of the FIPA was to limit access to personal data maintained by a State agency (the holding agency or "holder," as defined in G.L. c. 66A, § 1). Generally, no other agency and no individual not employed by the holding agency is allowed access to personal data "unless such access is authorized by statute or regulations which are consistent with the purpose of [G.L. c. 66A] or is approved by the data subject whose personal data are sought." G.L. c. 66A, § 2 (c ), as appearing in St. 1977, c. 691, § 8. Penalties are provided for violations of any provision of the FIPA. G.L. c. 214, § 3B.

Our concern is whether the information disclosed by the DSS affidavit concerning Torres is "personal data." The question arises under the definition of "personal data" as amended in 1977. G.L. c. 66A, § 1, as appearing in St. 1977, c. 691, § 6. ⁵ The 1977 amendment added language which, for our purposes, states that information contained in a public record, as defined in G.L. c. 4, § 7, Twenty-sixth, is not personal data. ⁶

Our attention is thus turned to the definition of "public records" in G.L. c. 4, § 7, Twenty-sixth, as amended through St. 1977, c. 691, § 1. The portions of the definition that are relevant to the arguments in this case are set forth in the margin. ⁷ No longer can clause Twenty-sixth (a ) apply because, due to the 1977 amendment of G.L. c. 66A, § 1, there is no specific statutory exemption from disclosure, apart from any exemption supplied by some other subclause of the definition of "public records." ⁸ Nor do we see any exemption by necessary implication. The legislative directive that we consider the definition of "public records" in determining what personal data are leaves no room for such an implication. ⁹

The language on which the parties' disagreement must be resolved is the concluding portion of clause Twenty-sixth (c ), which excludes from "public records" those "materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." The word "unwarranted" was added to subclause (c ) of G.L. c. 4, § 7, clause twenty-sixth, by the same 1977 act that amended the definition of "personal data." St. 1977, c. 691, § 1. These two 1977 amendments in essence broadened the range of information that might be available as public records and reduced the scope of data that are "personal data."

In any attempt to determine whether disclosure of the information about Torres contained in the DSS affidavit may constitute an unwarranted invasion of privacy, or, as the statute redundantly says, "personal privacy," it would be helpful to know just what the information was, who provided it in what circumstances, and whether it was otherwise available. We are advised with certainty only that the information concerned Torres's whereabouts at certain times. Disclosure of information provided to DSS in connection with obtaining government services or benefits would normally be regarded as an invasion of privacy. ¹⁰ Torres is a member of a class of persons for whom the protections of the FIPA were particularly intended. ¹¹ No member of the public could have come in off the street and rightfully obtained any information from DSS concerning a private individual.

Certainly the expectations of the data subject are relevant in determining whether disclosure of information might be an invasion of privacy. Compare Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 817-818, 375 N.E.2d 299 (1978) (disclosure of policemen's payroll records not shown to constitute an invasion of privacy), with Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127, 132, 375 N.E.2d 1188 (1978) (disclosure of names of applicants for position of superintendent of schools might constitute an invasion of...