Privacy Exemption

Also known as G.L. c. 4, § 7, cl. 26(c) Exemption C.

Thank you to Caitlin Russell for contributing to this entry. This guide is for informational purposes only, is general in nature, and is not legal opinion nor legal advice regarding any specific issue or factual circumstance.

The privacy exemption can apply to medical files personnel files, or any other information that if disclosed would be an unreasonable invasion of personal privacy. It generally includes employment application, disciplinary action, information related to the demotion or firing of a public employee, and work evaluations. This exemption is broadly defined, and applied differently on case by case basis.

Example Appeals

The [Police Department] cited G.L. c. 4, § 7, cl. 26(c) (the privacy exemption) to justify its decision to withhold information about [person or people arrested]. This exemption does not apply in this instance as [information such as names, phone numbers, birthdates, etc) are not “intimate details” of a “highly personal nature,” and most of this information is revealed in open court during the defendant's arraignment anyway.

It has been recognized by the courts and the Supervisor of Public Records, including in SPR 17/903, that public employees have a diminished expectation of privacy with respect to public employment matters. [See George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985).]

Certain otherwise personal information may be considered public if relating to an individual's official responsibilities. [See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (198); Globe Newspaper Co., 388 Mass. at 438.] The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee.[ Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Co. v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 417 (1979); 1976-77 Op. Atty Gen. Mass. 157 at 12.]

This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. [Id. at 292. ]

The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. [Id. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number)].

The requested records concern expenses filed by a public employee and funds reimbursed to this same public employee which were paid from taxpayer funds. There is a strong public interest in the monitoring of public expenditures. As a result, certain information that would ordinarily be considered personal may be a public record if it relates to a public employee's official responsibilities. [See Brogan, 401 Mass. 306, 309 (1987) (attendance records of public employees are public); see also Hastings & Sons Publishing Company v. City Treasurer of Lynn, 3 7 4 Mass. 812, 818 (1978) (payroll records of public employees are public record)].

Please provide the requested materials in a manner in accordance with the requirements and spirit of the public records law.

Proper Use

The privacy exemption excludes from disclosure any information that invades the privacy of an individual, or that could inhibit the government’s ability to function properly as an employer. It also applies to information determined to be “intimate details” of a “highly personal” nature. These “highly personal” details can include information about a person receiving government assistance, whether or not a person is married, paternity cases, and information about an employee’s substance abuse disorder. Medical records are nearly always exempt by both the privacy exemption and by statute.

Improper Use

Personnel records that are vital to ensuring the public’s trust in the government should not be exempt from disclosure. One example of an inappropriate application of this exemption would be if it were used to deny a person access to a police internal affairs investigation. Another example of an improper use of this exemption would be if it were applied to financial settlements. In these instances, the public interest in the files “substantially outweighs” an employee’s right to privacy. Also, despite exemptions protecting the privacy of government employees, as public servants they have a diminished expectation of privacy.

Key Citations

Massachusetts right to privacy law: G.L. c. 214, § 1B Massachusetts public records exemption C: G.L. c. 4, § 7, cl. 26(c) Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester Wakefield Teachers Association v. School Committee of Wakefield Brogan v. School Committee of Westport