Mass. court: info about those injured at work not public

Lists of names and addresses of employees injured on the job, as reported to the Massachusetts Department of Industrial Accidents, are not open to the public due to personal privacy concerns, the Massachusetts Court of Appeals ruled last week in Georgiou v. Commissioner the Department of Industrial Accidents.

Workman's compensation attorneys in Massachusetts had received the lists upon request to the agency on a monthly basis for at least 10 years prior to the agency stopping the practice in 2003.

Employers in Massachusetts are required by law to file with the DIA a "first report of injury," which details "any injury alleged to have arisen out of and in the course of employment which incapacitates an employee from earning full wages." All employers in the state are subject to the requirement except certain nonprofit organizations that are staffed exclusively by volunteers.

Until the DIA's decision to stop providing the names and addresses in 2003, Attorney Peter Georgiou of Cambridge, Mass., had been paying the DIA $20 per month since the early 1990's to receive the list in order to direct informational mailings — essentially advertisements — about the workers' compensation process. "I only got names and addresses. I couldn't tell where the person worked, what happened or the extent of their injury," he said.

When the DIA suddenly stopped providing the lists, Georgiou sued. Initially, a trial court found that the names and addresses were not "intimate details of a highly personal nature" and therefore no invasion of privacy had occurred. However, because the trial judge did not conduct a full balancing test between the privacy concerns for the workers involved and the public interest of having the names and addresses released — she had merely discounted the privacy interests outright — the Massachusetts Court of Appeals sent the case back down to the trial court level, ordering it to conduct a proper balancing test.

Facing the issue a second time, the same trial court judge found differently. The judge found that privacy interests were implicated that outweighed any benefit to the public, and held that the names and addresses should be withheld. The judge also held that the only true public interest implicated was that of determining whether public employees were doing their job and, in this case, the interest in keeping names and addresses of workers private outweighed that single public interest.

On appeal, Georgiou argued that the trial court disregarded the very real public interest in allowing him and other workman's compensation attorneys to distribute information to those hurt.

"Insurance companies in general take advantage of people not represented by lawyers skilled in workman's compensation issues," he said. Georgiou said that, while there is no harm in releasing the names, there is real harm to taxpayers in withholding them.

"Forty to fifty-percent of those who call me owe back-taxes or child support. Without the case being settled properly, the government will never get that money back." Georgiou claims. "If someone sees that not one dime of the settlement money will actually go to them, they'll just walk away and not settle."

The three-judge panel at the Massachusetts Court of Appeals held that while there is precedent in the commonwealth of making names and addresses open to public records requests, that does not apply in all cases. The appellate court agreed with the trial judge that the circumstances surrounding the names and addresses are important to determining whether they should be open. The court upheld the lower court's reasoning that "the aggregate effect of disclosing an employee's name and address as well as the fact that the identified employee suffered a work-related injury intensifies the invasion of privacy."

The court also held that Georgiou and co-plaintiff James Ellis — two separate suits against the DIA had been combined at the lower level — failed to show any public interest in the names and addresses, as their reasoning served only individual interests: for the plaintiffs themselves as attorneys and for the individual workers that would be receiving benefits of counsel. "Such benefits . . . depend on the individualized nature of the assistance provided and do not extend to the general public," the court said.

Georgiou claimed that taxpayers, as a whole, benefit from the work he and other workers' compensation attorneys do to bring money back to the state, and that the true victims of the ruling are taxpayers and the children who are denied money when insurance companies undercut injured workers. "The system would be making money if not for this case," he said.

"The court misinterpreted the law and failed to see the big picture," Georgiou added.

Georgiou is unsure whether or not he will appeal the ruling to the Massachusetts Supreme Judicial Court. "I'm not sure if the SJC will see the case in a different light now that a trial court judge and two appeals panels have said they think it should be private."