Courts to consider whether some public records stop being public if provided in bulk

The Supreme Judicial Court today ordered a lower-court judge to reconsider her ruling that the state can refuse to give the Boston Globe copies of databases of birth and marriage records that are available as public records to anyone willing to pay $9 an hour to sit at a terminal in a state office on Columbia Point.

The state's highest court did so, though, with the caveat that it's inclined to agree with state officials that in certain instances, records defined as public available might lose that status if they are bundled into a database that could be more easily combined with other records to violate the privacy of people referenced in them.

The Globe had sought copies of all birth and marriage records contained in a database that, in addition to costing $9 per hour to search, is only available to the public for 11 hours a week at the Registry of Vital Records on Mt. Vernon Street on Columbia Point - and with a prohibition against using anything other than a paper and pen to record any data found through it.

The Secretary of State's office had agreed with the Globe the records are public and ordered the Department of Public Health - twice - to give the Globe copies. But DPH balked and a Superior Court judge agreed with the state that the records fall under an exemption in the public-records law aimed at protecting the privacy of individuals because the database consisted of "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 SJC's decision today was more of a series of questions to Superior Court Judge Karen Green to answer about the privacy implications of such records in bulk than a definitive ruling on an issue it acknowledge it has yet to really consider. But the court indicated it might use Green's revised ruling in the case to help it decide just how far the public's right to know goes when it comes to databases that can be combined and compared to tease out information that other state statutes already bar from release.

The application of [the exemption] 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.

The court said that Green needs to consider whether, as the state claims, the Globe could violate people's privacy by making several requests for the database and then comparing differences between them - to find, for example, people whose unmarried parents later changed birth certificates to show they had gotten married, or people who had undergone sex-change procedures.

With respect to [this exemption], 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 [this exemption]. ...

[T]he judge should 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.

The court continued:

If there is a privacy interest in the requested indices, then the judge should decide whether the public interest in disclosure substantially outweighs that interest.

Although they said they would wait for Green's reconsideration, the justices spent considerable time considering whether "public" records that are hard to obtain, such as current birth and marriage records, provide privacy that would be lost if somebody could gain easy access to a state database of such information.

The Globe contends there is a greater privacy interest in "vertical compilations" that "aggregate information about specific individuals," such as an individual's criminal record, than in "horizontal compilations" that "provide a limited amount of information about many people," such as a telephone book. We agree that a minimal amount of nonintrusive data does not become private merely because it relates to millions of people. But where requested records include a fair amount of personal information, it matters how many individuals the records implicate: the more people affected by disclosure, the greater the privacy concerns.

The requested indices here compile enough personal data for the number of people affected to influence the privacy analysis. The marriage index entries would likely include name, date of marriage, spouse, place where the license was filed, and certificate number. And at least some of the birth index entries would likely include name, date of birth, place of birth, gender, and parents' names.

So the court asked Green to look specifically at

(1) the extent to which multiple indices could be compared to reveal private information, (2) the availability from other sources of the information in the requested indices, (3) the risk from disclosure of identity theft or fraud, and (4) the extent to which disclosure could result in unwanted intrusions.

By intrusions, the court said it meant such things as marketing or sales pitches targeted at people based on criteria in the database, for example, people's ages - if not by the Globe then by somebody else who might request the same database.

At the same time, the court continued, the Globe, which said it wanted the records mainly to look at possible problems with state record keeping, could make a case where the public right to know outweighs the privacy concerns related to a particular database:

Information is the bread and butter of democracy, and the government is in a unique position to collect and aggregate information from which the public may benefit. As the request in this case demonstrates, reporters, scholars, and others seek to use this information to learn and teach. See Statement on World Press Freedom Day, 1 Pub. Papers of the Presidents 607 (2010) (then President Barack H. Obama recalling "the words of Thomas Jefferson: 'The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter'").

But with such power comes responsibility, the court said: The state can reject requests that show no specific public interest:

To ensure that the public-private balancing test reflects the various uses to which government information may be put, we conclude that where a requester articulates with specificity a public interest, even one unrelated to government operations, "that non-dispositive factor can add weight to whatever [public] interest exists on that side of the balancing test." PETA, 477 Mass. at 295. ...

[T]he judge should consider all the Globe's arguments for why disclosure would be in the public interest.

For instance, the Globe argues in its brief that disclosure "would assist in identifying individuals in news reports, ferreting out voter fraud, and studying birth and marriage trends." The judge also should make further findings with respect to the public interest argument already considered in the Superior Court, namely, the Globe's "contention that access [to the requested indices] would provide a check on whether the registry is properly recording births and marriages."