: ADDRESSING THE DISCLOSURE OF MEDICAL CONDITIONS, MENTAL HEALTH TREATMENT, AND SUBSTANCE ABUSE HISTORY IN THE ONLINE PUBLICATION OF COURT DOCUMENTS IN MASSACHUSETTS.

• Author: Hurtado, Diana

1. INTRODUCTION

   Posting personal information online--whether by choice or through unwilling participation--paints a "detailed picture" of who people are for the public. (1) The risks of exposing sensitive information to the general public have increased drastically as more personal data becomes digitized. (2) Data regarding people's mental health, substance use, and medical conditions are of particular concern. (3) The troubling reality is that many companies collect and store data about an individual's medical and psychiatric histories based on online searches. (4) Digitized medical records, genetic information, and mental health data pose a greater risk of privacy breaches than similar data stored as physical records. (5) When an individual's identifiable medical or mental health information is made public on an online forum, such exposure may lead to stigma, isolation, and discrimination. (6) These consequences can negatively impact individuals' lifestyles and their ability to find or maintain work. (7) As a result, people may be dissuaded from seeking professional help or continuing their medications. (8) With 47.6 million adults in the United States experiencing mental illness, 20.3 million struggling with substance abuse disorders, and approximately 133 million suffering from chronic illness, it is impossible to ignore the negative impact of this stigma. (9)

   In Massachusetts, the risk of exposing information about someone's mental illness, substance abuse, or medical history online encompasses more than digital medical records and social media posts. (10) In the sphere of public records, the Commonwealth only recently recognized digital records. (11) The term "public records" now includes records produced "by electronic means" as of the 2017 amendment to the public records law. (12) Additionally, the amendment introduced new requirements for designing, maintaining, and servicing electronic record keeping systems. (13) Now, agencies must provide searchable electronic copies for certain types of records. (14) These records include final opinions and decisions from agency proceedings, annual reports, and any "public record information of significant interest that the agency deems appropriate to post." (15) The Commonwealth also requires agencies to maintain online electronic records to "provide maximum public access." (16) Individuals have the right to inspect the public records of "any Commonwealth agency, executive office, department, board, commission, bureau, division or authority, or any of their political subdivisions [and] any authority established by the general court to serve a public purpose." (17) These agencies and offices must also designate a "records access officer" to comply with all public record requests. (18)

   While the public has access to records covered under the statute, the right to view all the information contained within them is not absolute. (19) Records access officers may refuse disclosure or release redacted copies of records to ensure public safety and protect an individual's personal information. (20) The public records law and its exemptions do not apply to the Commonwealth's legislature, its committees, or its courts--despite the public's interest in their records. (21) Court records accessible to the public include "docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings." (22) While not bound by the public records law, the Supreme Judicial Court of Massachusetts provides direction for protecting personal information through impoundment and redaction proceedings. (23)

   This note seeks to analyze Massachusetts's public records law and the exemptions intended to protect sensitive medical, mental health, and substance abuse information in public records. This note also suggests how Massachusetts courts could utilize these exemptions to protect personal information in court documents published online. (24)

2. THE FREEDOM OF INFORMATION ACT AND MASSACHUSETTS' PUBLIC RECORDS LAW

   1. The Freedom of Information Act

      The Commonwealth's public record exemptions are based in part on the federal Freedom of Information Act. (25) The Freedom of Information Act ("FOIA") was enacted in 1966 and requires government agencies to make certain records available to the public. (26) To ensure public access, FOIA also requires agencies to post certain categories of records online. (27) These electronic records include final opinions made in the adjudication of cases, agency statements of policy and interpretations, administrative staff manuals, and copies of all previously released records. (28)

      It should be noted, however, that federal agencies are not required to disclose nine types of information explicitly exempted under FOIA. (29) These exemptions, found under 5 U.S.C. [section] 552(b)(1)-(9), include health information that "would constitute a clearly unwarranted invasion of personal privacy," arguably including an individual's psychological history, medical conditions, and substance use. (30) The exemption was designed to prevent the "unnecessary disclosure of files" from agencies, such as the Veterans Administration, because the records could contain "intimate details of a highly personal nature." (31)

      Courts across the United States have held that the FOIA medical-records exemption goes beyond health records and other documents detailing medical information. (32) A decision from the Court of Appeals for District of Columbia Circuit (D.C. Circuit), Rural Housing Alliance v. U.S. Department of Agriculture, emphasized that the exemption "was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files." (33) The court reasoned that the exemption was phrased broadly to protect individuals from a "wide range of embarrassing disclosures." (34) Information protected under the extensive coverage of the exemption includes intimate details such as "marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, [and] reputation." (35)

      The D.C. Circuit previously dissected the exemption's "clearly unwarranted invasion" provision in Getman v. NLRB (36) Here, the court determined that a balancing test was necessary to determine whether the disclosure constituted an "unwarranted invasion" of personal privacy. (37) Under the test, a court must balance the individual's right of privacy against the public's right to be informed. (38) When applying the balancing test, the court should first inquire whether the disclosure would constitute an invasion of privacy, and if so, assess the severity of the invasion. (39) The second inquiry requires the court to determine whether the public interest in the information outweighs the severity of disclosure. (40) This balancing test is unique for a FOIA exemption, as "normally no inquiry into the use of information is made" for the other FOIA exemptions. (41)

      FOIA and subsequent amendments to the statute provide guidance for redacting both physical and electronic copies of records. (42) Updates to federal public record redaction practices emerged after President Obama signed the FOIA Improvement Act of 2016 into law. (43) One notable amendment included codification of the Department of Justice's "Foreseeable Harm Standard." (44) Agencies are required to redact information "only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law." (45) The amendments also state that agencies must consider partial disclosure when full disclosure of a record is not possible. (46) The agency must then take reasonable steps to "segregate and release nonexempt information." (47) For electronic and online records, FOIA states that agencies may redact information as needed to prevent an "unwarranted invasion of personal privacy" prior to publication. (48) Where technically feasible, agencies shall indicate the extent of the deletion where it was made in the document. (49) These provisions only require mandatory redaction for the nine explicit exemptions, which does not include information that results in unwarranted invasions of privacy. (50) When agencies choose to redact information to protect the privacy of an individual, they should also consider whether the redacted portions are "sufficient to protect the privacy of individuals" before disclosing it the public. (51)

   2. Massachusetts Public Records Law - Mass. Gen. Laws ch. 4, [section] 7 para. 26(c)

      The Massachusetts Public Records Law is described as the "Commonwealth's counterpart" to FOIA. (52) This comparison is appropriate, as the exemptions in the Commonwealth's public records law adopts the FOIA's statutory language. (53) Like FOIA, the list of public record exemptions for the Commonwealth are strictly construed. (54) The Massachusetts exemptions similarly provide a basis for agencies to withhold records wholly, or in part, before disclosing to the public. (55) Also like FOIA, nonexempt portions of the record must be released once exempt portions are removed. (56) Paragraph 26(c) of the Massachusetts Public Records Law also provides a privacy exemption with similar language to its federal counterpart in [section] 552(b)(6). (57) The exemption requires mandatory non-disclosure for "medical files or information and other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy...." (58)

      Over the years, Massachusetts courts parsed the medical files exemption into two distinct clauses. (59) The first clause provides an absolute exemption for medical files and related data. (60) For this first clause, Massachusetts courts generally...