Are Terror Suspects’ Government Benefits a “Public Record”?

Friday, April 25, 2013

The Boston Herald’s report that Tamerlan Tsarnaev and his parents received state welfare benefits has set off a public debate over whether, as the Herald put it, Tsarnaev “financed his radicalization on taxpayer money” – and (to put it less ideologically) whether taxpayers have a right to know  what government benefits the brothers may have received over recent years.

A Herald reporter called me yesterday to ask whether such data is public record under state law, and I answered him as best I could on short notice.  With this post, I’m sharing my thoughts in somewhat greater detail than the Herald could reproduce in today’s article.  And I’m also reaching out to other public records experts for their insights.  (Is it possible to crowdsource an answer to a legal question?)  I invite those with knowledge of the applicable law to contribute their insights in the “comments” below.

Here’s the background.  On Tuesday, April 23, 2013, in response to the Herald’s inquiries, BostonHerald.com 4.26.13the state Executive Office of Health and Human Services issued a statement saying that while neither of the Tsarnaev brothers received transitional assistance benefits during 2013, both of them had received such benefits “through their parents when they were younger,” and Tamerlan, the now-deceased bomber, along with his wife and child, “received benefits until 2012, when the family became ineligible based on their income.”

On Thursday, the Herald reported that its survey of federal, state, and local agencies about benefits received by the Tsarnaevs yielded few answers.  The Cambridge Housing Authority declined to say whether the family received Section 8 housing assistance.  The Federal Communications Commission wouldn’t tell whether the Tsarnaevs participated in a program providing free cell phones to individuals on government assistance.  The Department of Unemployment Assistance said state law forbade it from revealing whether the brothers received unemployment benefits.  UMass Dartmouth declined to reveal whether Dzokhar Tsarnaev received financial aid there, citing federal privacy laws – presumably FERPA.  And so on.

The Globe reported on Thursday that the state’s Department of Transitional Assistance was “walking back the release” of the welfare information.  In a statement, the agency said, Boston Herald “State and federal laws prohibit disclosing information about individuals accessing a wide array of benefits. This week, the Department of Transitional Assistance, in an effort to be responsive to public inquiries, inappropriately confirmed information about the Tsarnaev family. Disclosing such information is not allowed by law. Regardless of the circumstances, we are obligated to follow state and federal law.”

As the issue increasingly became politically sensitive, the Globe’s news story said Gov. Deval Patrick had justified the decision not to release further information as having “nothing to do with the accused terrorists’ privacy rights, and everything to do with abiding by the law.”

This morning’s Herald says the Patrick Administration has decided to release the welfare benefits records to a legislative oversight committee, but not to the public.  According to today’s article, the governor’s spokesperson said the  law permits disclosure of the welfare information to lawmakers, but not to the public generally.

The Legal Landscape

The state’s Public Records Law is built around the presumption that records held by public agencies are open to the public.  Like most such laws, however, the statute contains dozens of exceptions, the first of which says that a document is not a public record if it is “specifically or by necessary implication exempted from disclosure by statute.”  In other words, if the law establishing a particular government benefits program says that information about recipients is categorically private, that’s the end of the analysis.  I assume that the Patrick Administration’s latest position on release of welfare benefits – disclosable to legislators but not the public — is based on such a provision in the DTA’s governing statute, which provides, at Gen. Laws c.66, sec. 17A, that  while welfare records are “public records,” they are open only to “public officials.”   Similarly, the refusal by UMass-Dartmouth to reveal Dzokhar Tsarnaev’s financial aid package is probably related to its interpretation of provisions of the federal Family Educational Rights and Privacy Act (FERPA), which generally prohibits the release of a college student’s education records without the student’s consent.

Some of the other benefits programs into which the Herald was inquiring may be subject to particular legal restrictions on release of that information – restrictions that are baked into the statutory schemes – and I won’t pretend to be an expert on each of those statutes.  But if that’s the case, the government ought to identify what those particular legal provisions are.

In the absence of specific legal restrictions built into the laws themselves, though, the question under Massachusetts law comes down to whether these suspects’ privacy rights trump the people’s right to know whether the suspects were receiving government benefits.  Whether an individual is receiving unemployment,  welfare payments, or other government benefits, appears to be recognized as “private” information under Massachusetts law, but that doesn’t necessarily mean it is off-limits to the public.  As the Supreme Judicial Court said in one case, “Where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest.”  Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979).

Under state law, putting aside any disclosure restrictions in the benefit programs themselves, there are two laws at play.  The first is the state’s information privacy law, G.L. c. 66A, which says, broadly speaking,  that state agencies may not divulge personal data about individuals unless the information falls within the definition of a “public record.”  The second is the state public records law, G.L. c. 66, and G.L. c. 4, sec. 7, cl. 26, which says that records held by the state are public records, and must be disclosed, unless a particular exemption applies.  One such exemption is if the government can show that disclosure would be an “unwarranted” invasion of an individual’s privacy.

Interpreting those two laws together, the state’s Supreme Judicial Court ruled in 1984 that the government must withhold personal data about individuals unless it’s shown  that there’s a public interest in disclosure that outweighs the individual’s privacy interests.   Torres v. Attorney General, 391 Mass. 1 (1984). But once that showing is made, the information must be made public.  Interestingly, the personal privacy exemption is one of very few places within the definition of “public records” where, as the Supreme Judicial Court explained, the statute calls “for a balancing of interests rather than for an objective determination of fact.”

The comments columns of the Herald and this week’s debates on Fox News are evidence that there’s a significant public interest in whether taxpayer dollars may have, even indirectly, helped to fund the Boston Marathon bombings and the murder of Officer Collier.  (What political conclusions one draws from that information is, of course, another story.)  On the other side of the scale are the privacy interests of one suspect who is deceased, perhaps that suspect’s surviving wife and child, and a second suspect who has been charged with using weapons of mass destruction.

Obviously, my thoughts here only scratch the surface of this legal issue.  I invite readers who are experienced in the intricacies of Massachusetts and federal public records laws to add your insights in  the comments below.

Robert A. Bertsche
Robert A. Bertsche

If you have questions, please contact Robert A. Bertsche , a partner in Prince Lobel’s Media Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

9 thoughts on “Are Terror Suspects’ Government Benefits a “Public Record”?”

  1. Bob: this is worthwhile blog on an issue that deserves intense discussion. My initial reaction is whether the question is inspired by scapegoating instincts having little to do with the causality of the tragedy. BadGuy #1’s mother got welfare benefits which allowed BG1 to go to school and leave the country and become a terrorist; thus, taxpayer dollars caused the bombing. At the base of every violent tragedy, some govermental nexus–in this case, tax or welfare dollars– can be shown to have caused, contributed to, facilitated or aided some evil cause. But where does this paradigm lead us? Foreign students and people on welfare helped save many lives at the Marathon. Federal dollars have subsidized chemical plants that seem to blow up in Texas and Lousiana on a regular basis, without state or EPA oversight. We’ve wasted hundreds of billions of unaccounted for taxpayer dollars in Iraq and Afganistan in “saving” those countries.

    The narrower question is whether the public assistance records of those accused of crimes should be public information under Massachusetts law? This classification of records are not ordinarily available to the public, but are to lawmakers. It would seem in this case that any notions of privacy surrounding the accused brothers and close family members vanished when they were identified last week, so from a common law notion of privacy, these are the most extreme examples of vortex public figures. That does not address the much more basic question of whether the mere accusation of a heimous crime against a person not previously a public figure, allows the disclosure of otherwise private documents under Mass. law. I’ll leave that to you and your able Mass. collegues.

    Warmest wishes,

    Alan Neigher
    Byelas and Neigher
    1804 Post Road East
    Westport, CT 06880
    203/259-0599

    1. In reply to Alan:

      You raise some very important questions. I share your misgivings about the logic that impliedly underlies the interest in whether the Tsarnaevs received various forms of public assistance. I, too, am unpersuaded by the argument that somehow the welfare system aided and abetted these tragedies. But that, by itself, is no reason not to release the raw data. I suspect you’d agree with me that the question of whether the public has a right to know this information should not be affected by our discomfort with the conclusions that some people may draw from the information once released.

      Rob

  2. Rob, great job presenting the issues and the law.

    To me, it would seem that the specific language of G.L. c. 66, sec. 17A, barring disclosure except to public officials, would trump the public records law’s presumption of openness, particularly given that the law exempts from the definition of public records anything “specifically or by necessary implication exempted from disclosure by statute.”

    I’m not sure that the Torres case gets you around that. Its discussion of the balancing test is dictum that the court concludes “we need not decide.” Plus, it doesn’t address the specific language of sec. 17A. There certainly is a strong argument for asserting a public interest in these records, but it would be difficult to convince a court that the public interest creates an exemption to sec. 17A.

    The question that stymies me is why there is a need to protect the privacy of a dead man. As you indicate, perhaps there is a need to protect the privacy of the suspect’s wife and child. And perhaps the state could argue that it has its own right in maintain the privacy of records that have been deemed private by statute.

    This is yet another example of why our state’s public records law needs a thorough overhaul. It is outdated, confusing, and so riddled with exemptions that even a straightforward question such as this cannot be easily answered.

    1. In reply to Bob (Ambrogi):

      As to DTA benefits, I agree that G.L. c. 66, sec. 17A, establishes that the state is not *required* to divulge welfare benefits information to the general public. But is the state *foreclosed* from doing so? I would argue that by designating this information as “public record” (even if restricted to officials), Sec. 17A takes DTA information out from under the information privacy law (Chapter 66A) and thereby removes any requirement that the information be kept confidential. That would mean that while the state is not obligated to disclose the welfare data, it has the discretion to make a policy decision to release the data — which would mean that state officials can’t hide behind the law as an excuse for not doing so.

      As to the other kinds of benefits (Section 8 housing, free cell phones, unemployment assistance, student financial aid), are there specific statutory provisions barring the government from releasing those kinds of information? Does anyone out there know the answer? (I mention FERPA in my post; my casual research suggests that its confidentiality cloak extends to financial records, and its health/safety exception doesn’t appear to apply where there is no imminent emergency requiring disclosure.) If those other benefit programs don’t have their own non-disclosure mandates, then I’d argue that the availability of such records, to the extent it is governed by Massachusetts law, is decided based on the public-interest-versus-personal-privacy balancing test.

      (By the way, our mutual friend Dan Kennedy — journalist, professor, and noted media critic — sent me this link http://t.co/MICoRBCfak as possibly shedding some light on whether food stamp records are public records. The link recounts the ordeal endured by Michael Morisy and muckrock.com after Michael successfully obtained food stamp records pursuant to a public records request.)

      You ask a very good question about how one is to go about gauging the privacy interests of a dead man. As to the surviving brother, are his privacy interests diminished by the fact that he is a criminal defendant charged with a crime of such enormity? Or do those circumstances simply go to the weightiness of the countervailing public interest?

  3. Rob,

    This example illustrates the continuing difficulty journalists face when seeking information about newsworthy individuals under state and federal public records laws. If the “public interests” to be considered in the balance are only those interests that will “shed light on government operations” then general newsworthiness, no matter how intense, will often not suffice. It is unfortunate that too many jurisdictions have adopted such a limited view of the value of public records and their derivative uses or readily minimize “government operations” arguments when engaging in a balance. .

    Another record the public will likely never see is Dzhokhar Tsarnaev’s federal mugshot. Citing privacy, the U.S. Marshals Service now essentially refuses to release the mugshot of anyone in federal custody despite a federal appellate court ruling that says they must be released under certain conditions under federal FOIA. Could the public have a greater interest in seeing the condition of the individual who was for two days the most wanted man in the world?

    Similarly, federal mugshot FOIA requests were recently denied for Abu Ghaith, Osama bin Laden’s son-in-law and a ranking Al-Qaeda operative. He was was extradited to the U.S. in March and is now facing terrorism charges in New York federal court. Once again privacy ruled the day. The Marshals Service determined that the public interest in its disclosure did not outweigh the privacy rights of an Al-Qaeda spokesmen.

    RCFP wrote the Attorney General about the Marshals actions. We are still waiting for a substantive response. You can read about the controversy and view the letter we sent here: http://www.rcfp.org/reporters-committee-asks-doj-overturn-new-marshals-service-policy-blocking-release-federal-mug-shots

    Unfortunately, government continues to stretch the notion of what should be considered “private” under open records laws.

    1. Rob — Great job presenting this issue. Since this is a free speech forum, let me express what may be an unpopular view: I do not think that information about terrorist suspects’ public assistance benefits is public under Massachusetts law and I think it would be very difficult to legislate such a right that protects the interests of the vast majority of public assistance beneficiaries who are not criminals. I think we also might see constitutional objections if such a right was asserted with respect to living public assistance beneficiaries.

      M.G.L. ch. 66, § 17A provides that “records of the department of transitional assistance, relative to all public assistance, . . . shall be public records; provided that they shall be open to inspection only by public officials of the commonwealth, which term shall include members of the general court, representatives of the federal government [and certain others].” (Emphasis added.) I expect there are departmental regulations to the same effect, but have not done that research.

      Given §17A, it seems that the records here fall under Exemption (a) to the Public Records Law (records “specifically or by necessary implication exempted from disclosure by
      Statute”). If so, the records also constitute “personal data” under the Fair Information Practices Act (ch. 66A), the disclosure of which exposes government actors to civil liability.

      So far, no balancing of privacy interests is required – the statutes do all the work and say that public assistance records are not public. That result, however, is consistent with language in SJC cases describing welfare benefits as a type of information the privacy exemption is intended to protect. See Attorney General v. Assistant Com’r of Real Property Dept. of Boston, 380 Mass. 623, 626 n.2 (1980) (“The types of personal information which the privacy exemption is designed to protect include . . . welfare payments”); Torres v. Attorney General, 391 Mass. 1, 8-9 (1984) (“Disclosure of information provided to DSS in connection with obtaining government services or benefits would normally be regarded as an invasion of privacy.”).

      Obviously, I’m not suggesting that keeping private public aid to terrorists is good public policy. The challenge is how to separate the terrorists from the rest of us. Single parents, victims of disease and, I suppose, victims of terrorist attacks, may receive public assistance from time to time. The consensus to date seems to have been that the public interest in investigating the efficacy of spending tax dollars on families facing these situations does not outweigh the (for lack of a better term) privacy interests of the recipients. Making the system sensitive to terrorists or other criminals would be extremely difficult. Is disclosure made at the stage someone becomes a “person of interest”? At the indictment stage? Upon achieving Reddit celebrity status?

      Bob Ambrogi raises the issue of whether a different rule should apply once the recipient dies. Extending privacy interests beyond death seems like magical thinking to me. But surviving spouses and children might feel differently, at least in the absence of criminal charges against the deceased relative.

      Finally, there is at least a potential constitutional issue in removing all confidentiality restrictions on information concerning public assistance recipients. The Supreme Court’s dicta in Whalen v. Roe, 429 U.S. 589, 605 (1977) suggested that when the government requires disclosure of certain personal information as a condition of receiving a governmental benefit of some kind, there may be constitutionally required concomitant obligations to impose restrictions on disclosure of that information.

      We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data whether intentional or unintentional or by a system that did not contain comparable security provisions. Id. at 605.

      1. In reply to Jon:

        You raise an important point about the difficulty of line-drawing: How do we fashion a coherent, neutrally enforceable rule that would require disclosure of whether terror suspects received government benefits, but would not require disclosure of the same information about their innocent victims? Where exactly do we draw the line, and how do we apply that distinction consistently and in accordance with our law and values?

        To be sure, that is a challenging question–but, I believe, it is one that is unavoidable, and that the public records law already requires us to make. Under the Massachusetts public records law, as under the federal Freedom of Information Act, the fact that particular information is private (even that it may involve “intimate details” of a “highly personal” nature) does not insulate it from public disclosure. Rather, to avoid disclosure, the government must show not only that release of the information would infringe on privacy, but also that the invasion of privacy caused by the release would be “unwarranted” in light of the countervailing public interest.

        The cases you cite–AG v. Real Property Dep’t of Boston, Torres, even Whalen–all support a conclusion that receipt of government benefits is “private” information, but each of them goes on to require an “equitable balancing of the opposing interests” (Real Property Dep’t) to determine whether the disclosure of the private information would be “unwarranted” (Whalen, Torres). Indeed, the SJC points out in Torres that the personal privacy exemption to the state public records law “appears to be the only exemption in the definition of ‘public records’ calling for a balancing of interests rather than for an objective determination of fact.”

        Thus, we have no choice but to draw lines. “[T]he same information about a person…might be protected from disclosure as an unwarranted invasion of privacy in one context and not in another. The word ‘unwarranted’… particularly suggests a weighing of the circumstances of the data subject–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.” Torres, 391 Mass. at 9.

        The only way to avoid the line-drawing entirely is to give a particularly strained reading to the DTA statute which, as you point out, says two opposing things: first, that records of DTA benefits are “public records,” and second, that the records are only available to public officials and not to the general public. M.G.L. ch. 66, § 17A. How in the world is one to interpret that self-contradictory language?

        You and Bob Ambrogi suggest that Section 17A falls under the “statutory exemption” (exemption (a)) of the public records law, which says a document is not a “public record” if it is “specifically or by necessary implication exempted from disclosure by Statute”). If that’s right, then no balancing is necessary; the documents are private, and are not subject to release.

        But couldn’t it be argued, at least as persuasively, that when Section 17A says the documents are “public records,” it actually means that they are, well, “public records”? And that, because they are “public records,” whether they must be released depends on how, under exemption (c), one balances the public interest in disclosure against the private interest in confidentiality? In other words, that the law does not allow us to avoid the line-drawing and the hard policy questions?

        Rob

      2. Rob — I agree that the intro to 17A gets one’s hopes up, but I think they are dashed by the time one gets to the end of the sentence – what’s that old saying – the first clause giveth, but the second clause taketh away? But I definitely agree that if your more optimistic interpretation of 17A is correct, the balancing test of exemption (c) applies, and, unlike in Torres, the burden would be on the government to prove that the exemption applies in these extraordinary circumstances. Thanks for generating this discussion.

  4. I’m glad some, you, Rob, has asked the question–many of us have been thinking about it. Anyone and everyone paid by the state’s taxpayers for working in Massachusetts is entirely searchable, ie, anyone can see what he/she is paid and what pension awaits. Those who receive funds without working, entitled to the help and in need though they may be, ought likewise be subject to public review. I recognize this can be embarrassing, even border-line humiliating for people and I’d hope the information was never cruelly misused. However, the benefits to the taxpayers will be substantial as the inevitable fraudsters and system abusers are identified and removed from the rolls thus freeing more funds for the truly needy. Recall, ten percent of the letters recently sent out to welfare recipients by the DTA were returned meaning a huge amount of taxpayer cash is being funneled to — who knows where. Total waste and has to be minimized.

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