Pintado v. National Carpentry Contractors, Inc.

26 Mass. L. Rptr. 255
CourtMassachusetts Superior Court
DecidedNovember 6, 2009
DocketNo. 073898
StatusPublished
Cited by1 cases

This text of 26 Mass. L. Rptr. 255 (Pintado v. National Carpentry Contractors, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pintado v. National Carpentry Contractors, Inc., 26 Mass. L. Rptr. 255 (Mass. Ct. App. 2009).

Opinion

Fremont-Smith, Thayer, J.

Oscar Pintado was at work as a carpenter in the construction of a building owned by AvalonBay Communities, Inc. (“Avalon-Bay”), when, on March 8, 2007 he fell down an elevator shaft and died as a result. Pintado’s estate alleges that National Carpentry Contractors, Inc.’s (“NCC”) and AvalonBay’s negligence resulted in Pintado’s fall and death. AvalonBay had contracted with NCC for this work, and NCC had, in turn, subcontracted the carpentry work to Caballero Construction, Inc. (“Caballero”) and supplied Pintado as a temporary worker to Caballero. The issue arises whether Pintado’s work was performed while he was an employee of NCC or as an independent contractor. Both AvalonBay and NCC were “named insureds” under an insurance policy issued by United National Insurance Company (“National”) which excluded coverage for bodily injury or death suffered by any independent contractor or any employee of an independent contractor. AvalonBay seeks to avoid the exclusion by establishing that Pin-tado was actually an employee of NCC, rather than an independent contractor, as he had been classified by NCC.1

On February 23,2009, the Massachusetts Attorney General’s office (“A.G.”), after an investigation, fined NCC $15,000 for intentional misclassification of particular employees whom NCC had classified as independent contractors rather than as employees so as to avoid paying them the wages to which they were entitled. Witness statements were also taken by the A.G. of NCC employees who were found to have been misclassified as independent contractors, but the names of these witnesses were redacted from the subpoenaed documents produced by the A.G. to AvalonBay.

Not surprisingly, the insured, AvalonBay, now seeks the unredacted records in order to glean the identities of individuals who could testify that NCC frequently misclassified persons such as Pintado as independent contractors in order to avoid wages. In denying production of the unredacted records, the A.G. alleges that the records, “insofar as they relate to a specifically named individual,” are withheld because “disclosure may constitute an unwarranted invasion of personal privacy pursuant to G.L.c. 4, §7(26)(c).”2

G.L.c. 66, § 10(a) requires, upon request, disclosure of any “public record,” as that term is definedin c. 4, §7(26). Pursuant to c. 66 §10(c), “there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies.” G.L.c. 66, § 10; In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2006).

G.L.c. 4, §7 provides the definition of public record. The statute defines the term broadly to include “documentary materials or data . . . made or received by an officer of employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth.” G.L.c. 4, §7. There are eighteen exemptions to the public records law and for this case, the relevant exemptions are c. 4, §7(26)(c) (the privacy exemption), and c. 4, §7(26)(f) (the investigative exemption).

The “privacy exemption” exempts data relating to a specifically named individual the disclosure of which may constitute an unwarranted invasion of privacy. G.L.c. 4, §7(26)(c). Information is considered private when it constitutes “intimate details of a highly personal nature.” Georgiou v. Commissioner of the Dep’t of Indus. Accidents, 67 Mass.App.Ct. 428, 433 (2006). Massachusetts courts have issued a number of opinions regarding the application of this exemption. “Application of the privacy exemption requires a balancing between any claimed invasion of privacy and the interest of the public in disclosure.” Globe Newspaper [256]*256Co. v. Police Comm’r of Boston, 419 Mass. 852, 858 (1995). Generally, names and addresses of adults are not considered to be intimate details of a highly personal nature. Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005), but “the expectations of the data subject are relevant in determining whether disclosure might be an invasion of privacy,” and thus such information “might be protected against disclosure as an unwarranted invasion of privacy in one context and not another.” The balancing of a privacy interest against the public interest in disclosure must be done on a case-by-case basis. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Georgiou, 67 Mass.App.Ct. at 433.

The “investigative exemption” exempts investigatory materials necessarily compiled out of the public view by law enforcement or other investigatoiy officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G.L.c. 4, §7(26)(f). Redactions maybe appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass.App.Ct. 244, 248 (2001) (citing Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (action to compel release of police records from an investigation into inappropriate discharge of weapons by police officers); Globe Newspaper Co., 419 Mass. at 862-63 (indicating that the exemption for investigative materials may outlive the investigation). Whether withholding records under the investigatory exemption is proper is a case-by-case determination, and the custodian of the records has the burden of showing that disclosure would so prejudice effective law enforcement that disclosure would not be in the public interest. Refuse v. Stryker, 61 Mass.App.Ct. 595, review denied, 442 Mass. 1112 (2004); Antell, 52 Mass.App.Ct. at 248. See also, Georgiou, 67 Mass.App.Ct. at 428 (the statute requires “a balancing between the seriousness of any invasion of privacy that may exist and the public’s right to know. It calls for a balancing of interests, rather than for an objective determination of fact”).

Whether disclosure is proper in this case will thus turn on the proper balance of the interest in protecting the privacy of the workers who participated in the A.G.’s investigation against the public interest in disclosing the redacted information. Globe Newspaper Co., 419 Mass. at 858.

To support releasing the complete records, Avalon-Bay argues that the A.G. has not met the specificity requirement of the public records law. G.L.c. 66, §10 (“the burden shall be upon the custodian to prove with specificity the exemption which applies”). The A.G., on the other hand, argues that both the privacy and investigatoiy exemptions apply. G.L.c. 4, §7(26)(a), (c). It urges that the disclosure of the names and contact information of the investigation witnesses will have “a chilling effect on citizens’ -willingness to come forward with their complaints, which is what the investigative exemption is designed to prevent, particularly where, as here, there is a vulnerable employee population (low-wage and/or immigrant workers) who are often reluctant to come forward given their particularly precarious socioeconomic position.”

In a recent decision, Larabee v. Attorney Gen., NOCV2007-01016-D (Mass.Super.Ct), Judge Brady stressed the importance of employees’ reliance on promises of confidentiality in similar circumstances as those here, and stated, at 3: “public policy discourages an outcome that would cause individuals to jeopardize their current employment status, or future prospects, merely for having exercised a legal right.”

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Related

Nichols v. Strehle
32 Mass. L. Rptr. 363 (Massachusetts Superior Court, 2014)

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Bluebook (online)
26 Mass. L. Rptr. 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pintado-v-national-carpentry-contractors-inc-masssuperct-2009.