DOE v. REGISTRAR OF MOTOR VEHICLES, 26 Mass. App. Ct. 415 (1988)

528 N.E.2d 880

No. 87-919.Appeals Court of Massachusetts. Middlesex.May 6, 1988.
September 30, 1988.

Present: GRANT, PERRETTA, DREBEN, JJ.

Registrar of Motor Vehicles, Records. Public Records. Fair Information Practices Act, Availability of remedy, Data subject. Statute, Construction. Privacy. Words, “Public records.”

Information kept by the Registrar of Motor Vehicles concerning the social security numbers, dates of birth, and physical heights of applicants for motor vehicle operators’ licenses, as contained in their applications for the licenses, did not acquire status as a public record either by virtue of G.L.c. 90, § 30, making public a record of all motor vehicle applications and licenses (but not the applications or licenses themselves) or by virtue of any statutory or decisional law existing prior to the effective date of St. 1973, c. 1050, an act defining public records and establishing prospectively certain exemptions from public record status. [419-422] Information contained in applications for motor vehicle operators’ licenses, which included applicants’ social security numbers, dates of birth, and physical heights, and which the Registrar of Motor Vehicles had made available to anyone, for a fee, when considered under the general definition of “public records” as set forth in G.L.c. 4, § 7, Twenty-sixth, and paragraph (c) thereof, was exempt from public record status as “personal data,” which, if disclosed, “may constitute an unwarranted invasion of personal privacy,” and thus was not subject to disclosure in the absence of any showing by the Registrar that disclosure would serve some public or governmental purpose. [422-428] On an appeal from summary judgment in favor of the Registrar of Motor Vehicles in an action by individuals seeking to prevent disclosure of certain data, where this court concluded that information kept by the Registrar concerning the social security numbers, dates of birth, and physical heights of applicants for motor vehicle operators’ licenses is, under G.L.c. 4, § 7, Twenty-sixth, and paragraph (c) thereof, “personal data” subject to disclosure only if the Registrar establishes that disclosure would serve some public or governmental purpose, the Registrar, on remand, was to have the opportunity to make the necessary showing; he was also to have the opportunity to establish that, as to the social

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security numbers, he had complied with the applicable notification provisions of Federal law as contained in the Privacy Act of 1974. [428-429]

CIVIL ACTION commenced in the Superior Court Department on June 10, 1985.

The case was heard by William H. Welch, J., on a motion for summary judgment.

Robert LeRoux Hernandez (Marian L. Klausner with him) for the plaintiffs.

Countess C. Williams, Assistant Attorney General, for the Registrar of Motor Vehicles.

DREBEN, J.

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.

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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 (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

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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 (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 Stats. 1896, 1909, 5 U.S.C. § 552a note (1982).

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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 (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.

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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.

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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
(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.

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

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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.

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 (1974); O’Neill v. Mencher, 21 Mass. App. Ct. 610, 613 (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 6, supra, makes all data received by the Registrar public records unless covered by one of the specific exemptions. The only relevant provision is (c), which excludes from public record status any “data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” As explained in Torres v. Attorney Gen., 391 Mass.

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at 9, the use of the word “‘unwarranted’ . . . suggests a weighing of the circumstances of the data subject[14] — a balancing of the public’s right to know as reflected in the Commonwealth’s public records law, and the individual’s right to protection against an unwarranted intrusion into his privacy.” This is the only exemption “calling for a balancing of interests rather than for an objective determination of fact.”Ibid.[15] Often, it calls for a factual determination to be made by the trial judge. See Attorney Gen. v. Assistant Commr. of the Real Property Dept. of Boston, 380 Mass. 623, 627 (1980) Rural Housing Alliance v. United States Dept. of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974). Such a determination will be necessary if the defendant can provide some justification for disclosure. Otherwise, we think this is a case, like Torres,
391 Mass. at 10, where the plaintiffs have shown enough of an invasion of privacy[16] so that the burden of demonstrating that the invasion is warranted falls on the Registrar. Unless that burden is met, the plaintiffs will be entitled to judgment.

A number of factors leads us to this conclusion. It has been said, most often in the context of public employees, that the kinds of private facts that are considered exempt by paragraph

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(c) are “intimate details of a highly personal nature”. Se Hastings Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978); Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 157 (1979) (delinquent real estate taxpayers, not public employees); Attorney Gen. v. Assistant Commr. of the Real Property Dept. of Boston, 380 Mass. at 625-626; Pottle v School Comm. of Braintree, 395 Mass. 861, 865-866 (1985) Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). But see Department of State v. Washington Post Co., 456 U.S. 595, 600 (1982), suggesting, under Federal law, that the balancing exercise must be undertaken even for data which are “not normally regarded as highly personal” because such information “if contained in a `personnel’ or `medical’ file would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy.”[17]

Whether age, height, or social security numbers, or any one or more of them, are such intimate details that their disclosure would be considered an invasion of privacy by “an individual of normal sensibilities,” see Attorney Gen. v. Collector of Lynn, 377 Mass. at 157, is to be determined in light of “community mores and sensibilities”. See Rose v. Department of the Air Force, 495 F.2d 261, 266 (2d Cir. 1974), aff’d, 425 U.S. 352
(1976); Kestenbaum v. Michigan State Univ., 414 Mich. 510, 528 n. 7 (1981). Both age, see Multnomah County Medical Soc. v. Scott, 825 F.2d 1410, 1415-1416 (9th Cir. 1987) (Medicare beneficiaries); and social security numbers, se Swisher v. Department of the Air Force, 495 F. Supp. 337, 340 (W.D. Mo. 1980), aff’d, 660 F.2d 369 (8th Cir. 1981), have been protected, the courts finding more than a minimal invasion of privacy by their disclosure. The Attorney General has also given an opinion that access to age should not be given by a board of registration because such information is exempt from mandatory disclosure under G.L.c. 4, § 7,

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Twenty-sixth, (c). Rep. A.G., Pub. Doc. No. 12 at 162 (1977).

Even if the items here at issue are not considered “intimate details of a highly personal nature,” the aggregate effect on the privacy of the total number of people whose data are disseminated weighs against disclosure. Although this is not a class action,[18] the harms to Massachusetts licensees which may result from disclosure are relevant on the public interest side of the balance. There is a negative public interest in placing the private affairs of so many individuals in computer banks available for public scrutiny.[19] Consideration of privacy interests on both sides of the balance cannot be avoided because the vast numbers of persons who hold motor vehicle licenses are themselves a significant part of the public. In large part theirs is the public interest which is being weighed.

The aggregation of facts included in the Registrar’s releases intensifies the invasion of privacy. See Aronson v. United

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States Dept. of Housing Urban Dev., 822 F.2d 182, 186 (1st Cir. 1987). The Registrar, on request, see G.L.c. 90, § 30, quoted at 8, supra, will disclose information as to automobile registrations. When an individual’s street address and make and year of automobile are known, much may be gleaned concerning his or her financial condition. If age is also factored in, such a person, particularly one of advanced years, may become the target of those who would like to share in his or her wealth.[20] Se Aronson, supra. Although the authorities are in conflict,[21]
some courts protect even names and addresses, when combined with financial or other data. E.g., ibid. (limitation of disclosure of lists of mortgagors entitled to receive shares of surplus under National Housing Act); Wine Hobby USA, Inc. v. United States Int. Rev. Serv., 502 F.2d 133 (3d Cir. 1974) (upholding refusal to disclose the names and addresses of persons registered with the United States Bureau of Alcohol, Tobacco, and Firearms to produce wine for family use in the Mid-Atlantic region) Minnis v. United States Dept. of Agriculture, 737 F.2d 784, 788 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985) (upholding refusal to disclose names and addresses of persons who applied for permits to travel on the Rogue River during the regulated season); HMG Marketing Assoc. v. Freeman, 523 F. Supp. 11, 15 (S.D.N.Y. 1980) (upholding refusal to disclose mailing list of names and addresses of persons wishing to purchase silver dollars). Including

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ages and social security numbers gives the purchaser significant information and may permit him access to additional files. “Data available on a single tape can be combined with data on other tapes in such a way as to create new more comprehensive banks of information.” Kestenbaum v. Michigan State Univ., 414 Mich. at 531.

Also relevant to our decision is the plaintiffs’ expectation of privacy. See Attorney Gen. v. Collector of Lynn, 377 Mass. at 157; Torres, 391 Mass. at 9. While the plaintiffs, so their counsel stated, are willing to disclose the material to the Registrar on the theory that such information may facilitate the administration of his duties, they, as alleged in affidavits, consider it far more intrusive for the material to be used, perhaps repeatedly, where no public purpose is served.[22] Cf Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 441 n. 22. That the information may be derived elsewhere reduces the expectation of privacy, Attorney Gen. v. Collector of Lynn, 377 Mass. at 158; Torres, 391 Mass. at 8, but is not dispositive. The Registrar urges that the material is available under G.L.c. 51, §§ 4 6.[23] Using that route to obtain the data would require inquiry of many sources, a far more cumbersome procedure; hence the present disclosure may still be viewed as a significant invasion. See Kestenbaum v. Michigan State Univ.,
414 Mich. at 533. Cf. Department of State v. Washington Post Co., 456 U.S. at 602-603 n. 5. Moreover, courts may protect the same information from disclosure as an unwarranted invasion of privacy in one context but not in another. Torres, 391 Mass. at 9. In sum, we conclude the plaintiffs have shown an invasion of privacy which requires a showing of some public or governmental purpose in disclosure.

Before considering the justifications offered by the Registrar to support the public’s right to know, we emphasize that our

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cases require the public to be treated “collectively,” without intent to differentiate “among the purposes for which information is requested.” Allen v. Holyoke Hosp., 398 Mass. 372, 381 (1986), quoting from Torres, 391 Mass. at 10. That the use intended is commercial may not be considered in determining th public interest, although this fact may bear on the way in which private interests can be harmed. See note 22, supra,
citing Aronson, 822 F.2d at 186.

The Registrar in his motion for summary judgment sought to rely on an affidavit of the first deputy general counsel of the Department of Public Welfare to show a need for disclosure of licensees’ social security numbers. Material authorized to be collected by one agency of government may not, however, in the absence of statute, achieve public record status by reason of the needs of another agency of government. Cf. G.L.c. 66A, § 2 (c), which precludes a holder of personal data from allowing any othe agency or individual from having access to personal data unless authorized by statute or otherwise. Only the Registrar’s own governmental purpose in having the items available to the public, see note 7, supra, can properly be considered.

The needs of the Department of Public Welfare,[24] if present statutes are insufficient, should be presented to the Legislature. Disclosure by the Registrar to that department can be authorized without making the social security number of each holder of a Massachusetts license a public record available to all persons for all purposes. Cf. G.L.c. 167B, § 14, inserted by St. 1981, c. 530, § 2, a Legislative indication that the use of social security numbers is to be restricted, at least in the banking context.

The disclosure of the social security numbers of the plaintiffs presents an additional problem. See Cleveland Welfare Rights Organization v. Bauer, 462 F. Supp. 1313, 1320 (N.D. Ohio 1978); Doe v. Sharp, 491 F. Supp. 346, 349-350 (D. Mass. 1980); Yeager v. Hackensack Water Co., 615 F. Supp. 1087,

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1092 (D.N.J. 1985). Use of social security numbers is permissible by the Registrar, see 42 U.S.C. § 405(c)(2)(c)(i) (1982). See also Ostric v. Board of Appeals on Motor Vehicle Liab. Policies Bonds, 361 Mass. 459, 463 (1972). Section 7 of the Privacy Act of 1974, 5 U.S.C. § 552a note (1982), however, requires the Registrar, in requesting such numbers, to inform the individual in advance “whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited and what uses will be made of it.” An affidavit of one plaintiff avers that he was not so informed, and the record strongly suggests that most licensees also were uninformed. No individualized notice was given, see Cleveland Welfare Rights Organization v. Bauer, 462 F. Supp. at 1320; Doyle v Wilson, 529 F. Supp. 1343, 1348-1350 (1982), and the license application does not reveal the information required by the Federal statute. The Registrar, in answers to the plaintiffs’ requests for admissions, stated that he did not have enough information to know whether a sign was posted at each registry office informing applicants for licenses that they could be assigned different numbers. Unless on remand the Registrar shows compliance with the statute (as well as justification for disclosure), social security numbers may not be released.

As to age and height,[25] the Registrar has supplied no justification whatsoever for disclosure. Despite the failure of the Registrar to show on the record a public or governmental need for disclosure of the three items, we think, as indicated earlier, he should be given an opportunity to do so. The shift in focus on appeal from the motor vehicle statutes where no balancing is needed to the balancing required under paragraph (c) of G.L.c. 4, § 7, Twenty-sixth, as well as the plaintiffs’ waiver of their claims of privacy as to names and addresses, warrants this procedure.

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Accordingly, the judgment is vacated and the case is remanded to the Superior Court. If the defendant, within sixty days from the date of the rescript, files an affidavit alleging that he has evidence that the disclosures are warranted, a judge of the Superior Court shall conduct further proceedings consistent with this opinion.[26] If the defendant does not file such an affidavit, a judgment declaring that the material is not a public record shall be entered upon the expiration of the sixty-day period. Additional relief consistent with this opinion may also be provided.

So ordered.

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