MEMORANDUM TO: FROM: DATE: [Redacted] Mara Stewart November 5, 2012

SUBJ: Invasion of privacy as cause of action against a public employer QUESTION Can a citizen of the Commonwealth of Massachusetts seek damages from a public employer in an invasion of privacy cause of action under FIPA or the Mass. Tort Claims Act? BRIEF ANSWER No. Under the Massachusetts Torts Claims Act, upheld in numerous court cases, an invasion of privacy is considered an intentional tort, and is therefore exempted as a cause of action against a public employer. FACTS The local Housing Authority violated a clients privacy when her personal information, an application packet containing demographic and disability information, was disclosed to an unauthorized party by mail. DISCUSSION The Fair Information Practices Act (FIPA), M.G.L. c. 66A, was enacted in 1975. It defines what entities in the Commonwealth are holders of personal data, and provides agencies and authorities with the power to promulgate regulations regarding the collection, use, and dissemination of personal data. However, FIPA itself does not specifically provide for civil remedies of violations of the statute. M.G.L. c. 214 3B provides for damages under FIPA. In 1978 the General Court passed the Massachusetts Tort Claims Act, M.G.L. c. 258. Prior to its passage, the Commonwealth and

municipalities enjoyed sovereign immunity from suit. With passage of the MTCA, public employers became liable for negligent or wrongful acts of an employee while the employee was engaged in activities within the scope of his or her duties (M.G.L. c.258 2). However, 10 of the MTCA exempts public employers from liability from intentional torts, including invasion of privacy claims. The MTCA and FIPA intersected in Spring v. Holyoke Geriatric Authority1. In Spring, the plaintiffs deceased husbands privacy was breached when staff of a municipally-run nursing home published information about his medical case in a local newspaper without his or his familys permission. The plaintiff claimed invasion of privacy under G.L. c.66A. The Authority filed a motion for summary judgment on the two counts of invasion of privacy, which the Court awarded. The Court awarded summary judgment to the Authority on the counts of invasion of privacy for two reasons. First, the Geriatric Authority, being a citylevel entity, was not governed under FIPA, which governs only statelevel Authorities, and local Housing Authorities. Second, the Court disagreed with the plaintiffs argument that the Authority, as a public employer under G.L. c. 258, 1, was subject to her invasion of privacy claims. Prior to Spring, there was no case law in this Commonwealth holding municipalities liable for the intentional torts of their employees. The MTCA exempted public employers from liability from intentional torts, but left open the question of individual employees being liable for them. The Court concluded that, consistent with the principles of sovereign immunity pre-dating the MTCA, public employers retained their immunity from suits arising from intentional torts.2 FIPA and the MTCA once more intersected in Tivnan vs. Registrar of Motor Vehicles3. An imposter duped the Registry of Motor Vehicles into issuing him a duplicate driver license with Andrew Tivnans name and personal data. Tivnan sued the Registrar in his official capacity, seeking damages for emotional distress under FIPA due to the invasion of privacy. The Registry answered that the MTCA had superseded G.L. c. 214 3B, the statute permitting such a claim under FIPA. Additionally, because of the restrictions in 10 of the MTCA, the statute provides only a remedy for a negligence claim; invasion of privacy, an intentional tort, is not provided for. The trial court agreed, and granted summary judgment in favor of the Registry. The Appeals court, citing Spring, affirmed the trial courts decision.4 The end result of Tivnan is that an invasion of privacy claim against a public employer, being
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475 N.E.2d 727 Mass. 1985 Id., at 734 734 N.E.2d 1182, Mass. App. Ct. 2000.

considered an intentional tort, is moot. The decisions in Spring and Tivnan were upheld in Amato v. District Attorney for Cape and Islands District5. Keith Amato brought action against the District Attorney for the Cape and Islands District on behalf of himself and others similarly situated, seeking damages for invasion of privacy after DNA information was mishandled in a criminal matter. The trial judge had previously determined that 10(c) of the MTCA prevented him from seeking damages for his FIPA and invasion of privacy claims6. Consequently, Amato withdrew his claim for damages and did not pursue the matter on appeal. Citing Spring and Tivnan, the Appeals court in Amato noted the trial courts ruling and did not reverse or remand it7. CONCLUSION The MTCA 10(c) abolishes claims for damages against public employers for intentional torts, which include invasion of privacy claims under FIPA. Only a claim of negligence may prevail for damages. Remedies for invasion of privacy claims against a public employer are limited to equitable relief only.

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Id., at 1186 952 N.E.2d 400, Mass. App. Ct. 2011 Id., at 403 Id.