Allen v. Holyoke Hospital

Hennessey, C.J.

A Superior Court judge has reported two questions pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), regarding whether the social worker privilege contained in G. L. c. 112, § 135, and the provisions of the Fair Information Practices Act (PIPA), G. L. c. 66A (1984 ed.), preclude the defendants from examining certain records of the Department of Social Services (department) relating to the decedent. The defendants seek to examine the department’s records to aid in defending a wrongful death action alleging that the defendants negligently caused the decedent’s death. We transferred the case here on our own motion.

On February 5, 1981, the decedent, Sean Allen, a four year old boy, was brought to Holyoke Pediatric Associates by his foster mother. He was immediately rushed to Holyoke Hospital where he remained in critical condition for several hours. Later that same day, the decedent’s condition, while still critical, was showing signs of improvement. At approximately 2:30 a.m. on February 6, however, the decedent’s condition deteriorated, and he expired at 4:20 a.m. The cause of death was later determined to be septic shock secondary to pyelonephritis (kidney infection).

The decedent was bom on January 18, 1977. Information obtained through pretrial discovery, indicates that the decedent was an unusually small, underdeveloped, and sickly child throughout his short life. On January 13, 1978, the decedent and his older brother were removed from the custody of their mother, the plaintiff in the action with which this interlocutory report is concerned, by the department for approximately six months. The department again removed the decedent and his brother from the plaintiff’s custody on December 3, 1980. At that time the decedent was placed with foster parents, with whom he was living at the time of his death.

Following the child’s death, the natural mother, Dawn M. Allen, commenced this action against the defendants on February 3, 1984, seeking recovery for conscious pain and suffering, wrongful death, punitive damages for wrongful death, emotional distress, and loss of companionship and society. Each of the defendants raised the defense of the contributory negligence of the plaintiff based on the allegedly deficient care and nurturing the decedent received during the early years of his life. The defendant, Holyoke Hospital, sought to depose the department’.s. area director in Northampton. In its notice of taking the deposition, Holyoke Hospital requested that the deponent bring with him any department files relating to the Allen family, including “all documents relating to any proceedings brought by or otherwise involving the Department of Social Services relating to the removal of Sean Allen [or his brother] from the custody of their parents Dawn M. Allen and/or Terry D. Allen.” The plaintiff renewed an earlier motion for a protective order in opposition to this effort to gain discovery of the department’s records. In support of this motion, the plaintiff maintained that the information in the department’s files is not subject to discovery because the information is within the privilege created by G. L. c. 112, § 135, for communications to social workers (social worker privilege) and because disclosure of the information is forbidden by the provisions of FIPA.

After reviewing the relevant department records in camera, the judge found that the records contained information which “would probably be of great assistance to [the defendants] in warding off the claims which the plaintiff has brought against them.” Specifically, the judge found that the information “might bear upon the cause of the decedent’s illness and death . . . and that it might bear on the issue of the monetary value to the plaintiff and the decedent’s father of the child’s society and companionship.” See G. L. c. 229, § 2 (1984 ed.). The judge also found that “[t]he defendants’ need is substantial

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Pursuant to Mass. R. Civ. P. 64, the judge elected to report certain questions, as follows: “(1) Is a licensed social worker in the employ of the Massachusetts Department of Social Services precluded by the provisions of G. L. c. 112, section 135 from disclosing information relative to a child who was the subject of a departmental investigation which the social worker acquired: (a) from the child’s maternal grandparents with whom the child did not reside; (b) from the child’s foster parents with whom the child had been placed by the department; and (c) from the social worker’s personal observations made within the home of the child’s parents in the course of the investigation? (2) Is the Department of Social Services-precluded, by the provisions of G. L. c. 66A, from allowing access to materials or data in its files, which relate to a specifically named individual, to the defendants in a civil action seeking damages for the alleged wrongful death of that individual, where such materials or data contain information which would probably be of substantial assistance to those defendants in defending against the claims brought against them and where such material and data are not otherwise specifically or by necessary implication exempted from disclosure by statute.” We examine separately the availability of the department’s records under G. L. c. 112, § 135, and FIFA, bearing in mind that information contained in the records should not be disclosed if disclosure is precluded by either statute.

1. Disclosure Under the Social Worker Privilege Created by G. L. c. 112, § 135.

In defending the wrongful death action initiated by the plaintiff, the defendants seek to examine the department’s records relating to the decedent to obtain whatever information is available regarding his condition prior to his death, his condition when he was removed from his mother, and to what extent, if any, the plaintiff’s parental neglect may have contributed to the child’s illness and death or may be a ground for reducing the plaintiff’s damages. The defendants contend that the social worker privilege does not protect these records from disclosure and, alternatively, that by instituting a civil action raising issues to which the records are relevant, the plaintiff has waived any privilege to which the records may ordinarily be subject.

To determine whether the records can be disclosed to the defendants, it is necessary to examine the scope of the statutory privilege for communications to social workers created in G. L. c. 112, § 135.⁴ Section 135 of c. 112 prohibits a social worker, except in certain specified circumstances, from disclosing information acquired from persons consulting the social worker in a professional capacity. In enacting § 135, the Legislature recognized that maintaining the confidentiality of communications acquired by a social worker is necessary for successful social work intervention. Commonwealth v. Collett, 387 Mass. 424, 428 (1982).

In Collett, we recited the history of the statute as supportive of our conclusion that the privilege extends beyond communications from the victim and the victim’s family, and we further concluded that it is only necessary that the communications have been acquired from persons consulting the social worker in her professional capacity. 387 Mass. at 428-430. See Commonwealth v. LeCain, 19 Mass. App. Ct. 1034, 1035 (1985). We said further that persons “consulting” the social worker included those who were first contacted by the social worker, who “generally makes the first foray.” Collett, supra at 429. Subsequent to our Collett decision, in St. 1985, c. 524, the Legislature reenacted § 135 with a significant change in wording relevant to this aspect of our discussion. In pertinent part § 135 now reads: “No social worker . . . shall disclose any information he may have acquired from a person consulting him in his professional capacity or whom he has served in his professional capacity ...” (emphasis supplied to show words added by amendment). We regard the reenactment as indicating that the Legislature agrees with our statutory interpretation in Collett (see Commonwealth v. Miller, 385 Mass. 521, 524 [1982]; Condon v. Haitsma, 325 Mass. 371, 373 [1950]), and that the language emphasized above is especially supportive of our conclusions in that case.

Taking into account our conclusions in Collett, the response to questions (1) (a) and (1) (b) must be in the affirmative. Communications to the department’s social workers from the decedent’s grandparents and foster parents while consulting with the social workers fall within the privilege created by c. 112, § 135, unless one of the statutorily enumerated exceptions to the privilege applies to the communications involved.⁵

Regarding the disclosure of information contained in the department’s records acquired through the personal observations of social workers in the plaintiff’s home, we reach a different result. The language of § 135 clearly limits the privilege to communications “from a person,” and the observations of the social worker are clearly not such.

The defendants argue that, by bringing this action and putting certain facts directly in issue, the plaintiff has waived any privilege under c. 112, § 135, with respect to information bearing on those facts. We disagree. The statutory language makes it clear that the privilege to have confidences respected belongs to those persons who make disclosures, and only they can waive them. See G. L. c. 112, § 135 (a).

Our answers to the questions concerning G. L. c. 112, § 135, are as follows: (1) (a), “Yes”; (1) (b), “Yes”; (l)(c), “No.”

2. Availability of Records Under FIPA.

Question (2) asks us to decide whether the provisions of G. L. c. 66A (FIPA) operate to bar the defendants’ access to information contained in the files of the Department of Social Services. In light of our conclusions in questions (1) (a) and (1) (b) that disclosure is precluded, we construe question (2) (see the words of that question which confine the inquiry to matter “not otherwise specifically or by necessary implication exempted from disclosure by statute”) as inquiring only whether disclosure of the information covered by question (l)(c) is barred by HPA. Our discussion will show that on this record we cannot give a definitive answer to this question.

FIFA requires that every holder of personal data,⁶ “not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations ... or is approved by the data subject whose personal data are sought.” G. L. c. 66A, § 2 (c). Information contained in public records is exempted from the definition of “personal data” contained in HPA. G. L. c. 66A, § 1. Thus, determining whether the record sought is protected by HPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7, Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A. Torres v. Attorney Gen., 391 Mass. 1, 7 (1984). “[I]f a record is made public by the public records law, the personal data in it would not be covered by HPA.” Special Legislative Commission on Privacy — Second Interim Report, 1977 House Doc. No. 6106, at 12. See Torres, supra at 7 n.9.

The defendants’ argument that disclosure of the records is not prohibited by PIPA because § 2 (k) contemplates disclosure of personal data in response to a demand for data by means of compulsory process is not persuasive. Section 2 (k) of G. L. c. 66A requires record holders to “maintain procedures to ensure that no personal data are made available in response to a demand for data made by means of compulsory legal process, unless the data subject has been notified of such demand in reasonable time that he may seek to have the process quashed.” This language does not add to or detract from any substantive right of access to records the parties possess under any other provisions of FIPA or other laws. Section 2 (k) is merely an administrative provision that requires agencies maintaining personal data to advise data subjects of a demand for information regarding them so that the data subject would have an opportunity to prevent disclosure. The section does not require that the records be disclosed, but in fact admits a possibility that the records may not be disclosed if the data subject objects to disclosure. Through § 2 (k), the Legislature imposed on agencies an obligation to create a procedure to ensure consideration of a data subject’s objections to disclosure. The Legislature contemplated that courts would apply the usual rules established by the substantive provisions of FIPA and other records statutes in ruling on demands for disclosure of records or information containing personal data made pursuant to § 2 (k). Section 2 (&) is not a provision requiring that records be disclosed because litigants request them.

The defendants also argue that they have shown such a substantial need for the records that it outweighs the plaintiff’s right of privacy. We do not agree. We decline to construe FIPA’s protection against disclosure so narrowly.⁷ In reporting the question whether the department’s records are protected from disclosure under FIPA, the judge stated that, on the basis of his in camera inspection of the records, “they contain information which, while perhaps not absolutely essential to the defendants’ defense, would probably be of great assistance to them in warding off the claims which the plaintiff has brought against them. The defendants’ need is substantial, the stakes are high and a trial of the case on its merits promises to be lengthy and expensive.” In the Torres case, we left undecided the question whether the reason that personal data are sought can ever warrant an invasion of privacy. We did question, however, “whether the Legislature intended a variable definition . . . depending on the . . . information seeker’s need.” Id. at 10. In addition, we observed that “[i]t may be that the public records law was intended only to make properly maintained information available to members of the public treated collectively and not intended to differentiate among the purposes for which information is requested.” Id. This view is the position taken by the Federal courts under the Federal Freedom of Information Act. See Kiraly v. FBI, 728 F.2d 273 (6th Cir. 1984); Kurzon v. Department of Health & Human Servs., 649 F.2d 65 (1st Cir. 1981); Brown v. FBI, 658 F.2d 71 (2d Cir. 1981); DePlanche v. Califano, 549 F. Supp. 685 (W.D. Mich. 1982); Columbia Packing Co. v. United States Dep’t of Agriculture, 417 F. Supp. 651 (D. Mass. 1976). By claiming a greater need for the information than the general public, the defendants do not enhance their right of access to the records.

Exempted from the definition of public records are “data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” G. L. c. 4, § 7, Twenty-sixth (c). We do not agree with the defendants that, by bringing this action, the plaintiff waived her right to have the information in the department’s file protected from disclosure under G. L. c. 66A. In each case where a party to litigation seeks materials arguably protected by FIFA, that party must demonstrate that, based on the particular circumstances of the case, the collective public interest in disclosure warrants an invasion of the data subject’s privacy. Torres, supra at 11.

It is in part a question of fact whether disclosure of records of the social worker’s personal observations made in the home of the child’s parents would be an unwarranted invasion of privacy. We do not know the circumstances under which the social worker entered the home nor what the records indicate she saw. We do know that FIFA does not bar the social worker from testifying concerning her observations. Because that informotion is subject to public disclosure, it may well be that disclosure of her recorded observations would not be an unwarranted invasion of the plaintiff’s privacy. The question is one as to which the defendants are entitled to a ruling prior to trial and, if their access to the records is denied before trial, circumstances at trial may indicate that the defendants have become entitled to access to the records.

In answer to question (2), we can say that FIFA applies to the information covered by question (l)(c), that the defendants’ claims of absolute right to that information must be rejected, and that a judge must decide whether disclosure of that information would be an unwarranted invasion of the plaintiff’s privacy. Question (2) is not capable of an affirmative or negative answer.

3. Conclusion.

Our responses to the reported questions are as follows: Question (1) (a) “Yes”; Question (1) (b) “Yes”; Question (1) (c) “No.” Question (2) is not capable of an affirmative or negative answer.

4 Section 135, as appearing in St. 1985, c. 524, reads as follows: “No social worker in any licensed category, including those in private practice, and no social worker employed in a state, county or municipal governmental agency, shall disclose any information he may have acquired from a person consulting him in' his professional capacity or whom he has served in his professional capacity except:

“(a) with the written consent of such person or, in the case of death or disability of such person, of his representative, other person authorized to sue, or die beneficiary of an insurance policy on his life, health, or physical condition;

“(b) that a licensed certified social worker, including one engaged in independent clinical practice, licensed social worker, licensed social work associate, or a social worker employed in a state, county, or municipal agency, shall not be required to treat as confidential a communication that reveals the contemplation or commission of a crime or harmful act;

“(c) when the person waives the privilege by bringing charges against the licensed certified social worker, including one engaged in independent clinical practice, the licensed social worker, the licensed social work associate or by a social worker employed in a state, county, or municipal agency;

“(d) to initiate a proceeding under subsection C of section twenty-three of chapter one hundred and nineteen or section twenty-four of said chapter one hundred and nineteen, or section three of chapter two hundred and ten and give testimony in connection therewith;

“(e) in any other child custody case in which, upon a hearing in chambers, the judge, in the exercise of his discretion, determines that the social worker has evidence bearing significantly on the person’s ability to provide suitable custody, and that it is more important to the welfare of the child that the information be disclosed than that the relationship between the person and social worker be protected;

“(f) where the social worker has acquired the information while conducting an investigation pursuant to section fifty-one B of chapter one hundred and nineteen.”

5 We do not discuss whether any of the exceptions in § 135 applies (e.g., exception [b] as to “harmful acts”; see note 4 supra), because the reported questions make no mention of the exceptions, and because the judge’s memorandum explaining his reasons for reporting the questions says that the statutory exceptions are “immaterial” to this case.

We add that, although the reported questions address only communications from grandparents and foster parents, the judge’s memorandum states that some communications in the department’s records came from police, teachers, neighbors, and others. Against the possibility that issues concerning such individuals may arise in this case, we comment that these confidential communications to social workers also fall within the privilege created by § 135 if the communications were received during consultations with the social workers.

6 “Personal data” are “any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter six.” G. L. c. 66A, § 1. The information in the department’s records the defendants seek is personal data and is not subject to disclosure unless it falls within the definition of “public records” in G. L. c. 4, § 7, Twenty-sixth.

7 Again, as in our answers to question (1), because the judge makes no mention of harmful acts, and the defendants do not argue in that vein, we do not address the issue whether FIPA would protect personal data showing harmful acts by a specifically named individual.