GLOBE NEWSPAPER COMPANY & others [Note 1] vs. BOSTON RETIREMENT BOARD (and two companion cases [Note 2]).

LIACOS, J. The Globe Newspaper Company and its reporter Stephen A. Kurkjian (Globe) commenced this action in the Superior Court seeking to obtain access to certain records held by the Boston retirement board and its members (Board), pertaining to disability pensions. After the Globe's action was consolidated with the actions discussed below, a judge of the Superior Court enjoined the Board from complying with an order issued by the Supervisor of Public Records of the Commonwealth (Supervisor) to disclose cursory statements of the medical reasons relied on to grant disability pensions to former employees of the city of Boston.

The procedural history may be summarized as follows. After the Globe filed its action, the Boston Firefighters, Local 718, International Association of Firefighters, AFL-CIO (Firefighters), and the Boston Police Patrolmen's Association, Incorporated (Patrolmen), filed separate actions against the Board, the Globe, and others seeking to restrain the disclosure of the medical statements.

A restraining order barring the release of the statements in issue was entered, [Note 3] and the cases were consolidated. The

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parties entered into a stipulation requiring the Board to file with the court certain information concerning the documents relating to disability pensions, as contained in its files. The Board also answered several interrogatories concerning the funding of pensions. The Globe then moved for summary judgment, Mass. R. Civ. P. 56, 365 Mass. 824 (1974), asserting that all of the requested records, as matter of law, consisted of nonexempt public records as defined by G. L. c. 4, Section 7, Twenty-sixth (c), [Note 4] and were subject to mandatory disclosure under G. L. c. 66, Section 10. [Note 5]

The judgment entered by the judge (1) ordered the Board to disclose to the Globe records containing the "names of those receiving disability pensions, the date of the disability pension award, the amount of the disability pension, and the department from which the pension came"; [Note 6] and (2)

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enjoined the Board from disclosing to the Globe "a cursory statement of the medical reason for granting the disability." [Note 7] The Globe brings this appeal; the appeal is here on our grant of an application for direct appellate review. We vacate the judgment for entry of a modified judgment on remand.

This controversy arose in the following circumstances. On June 26, 1978, the Globe formally requested access to certain information pertaining to former employees of the city of Boston who were receiving disability pensions. Specifically, the Globe sought (1) the names of all former employees receiving disability pensions from the city of Boston; (2) the dates on which each employee's pension had been approved; (3) the amount received annually by each pensioner; (4) the department in which each person was employed at the time of the person's pension application; and (5) "the medical reason given by each employee in applying and receiving his disability pension, e.g., bad back, heart problem, hypertension, etc." The Board did not formally respond to the request.

On January 12, 1979, the Globe filed a petition with the Supervisor of Public Records seeking an administrative determination as to whether the information sought was subject to mandatory disclosure pursuant to G. L. c. 66, Section 10. The Supervisor ordered the Board to make the requested information available to the Globe. The Board refused, and these actions followed. We address the contentions of the parties to the extent necessary to determine this appeal.

1. The public records statute, G. L. c. 66, Section 10, requires public access to various records and documents in the possession of public officials. The class of records to which the public must be afforded access is defined in G. L. c. 4, Section 7, Twenty-sixth. This section establishes a broad definition of

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public records but contains nine exemptions. Records falling within the scope of an exemption are not subject to mandatory public disclosure under G. L. c. 66, Section 10. [Note 8] At issue in this appeal is the scope of G. L. c. 4, Section 7, Twenty-sixth (c), as amended by St. 1977, c. 691, Section 1, which excludes from the definition of public records "personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."

We are asked to decide whether the clause, "the disclosure of which may constitute an unwarranted invasion of personal privacy," modifies the first phrase, "personnel and medical files or information," or only applies to the second phrase, "also any other materials or data relating to a specifically named individual." If the modifying clause does not apply to the first phrase, we must defer to the Legislature's decision that medical files or information are absolutely exempt from disclosure. [Note 9]

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We begin our analysis by applying "`the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation."' Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231 (1982), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133 (1949). Hopkins v. Hopkins, 287 Mass. 542, 547 (1934). See G. L. c. 4, Section 6. The use of a semicolon usually indicates that each clause is intended to be independent. Moulton v. Brookline Rent Control Bd., supra at 231-232. Commonwealth v. Kelley, 177 Mass. 221 (1900). We are aware, however, that matters of punctuation are not necessarily determinative and should not be allowed to defeat the true purpose and meaning of a statute. See Dowling v. Assessors of Boston, 268 Mass. 480, 488 (1929). We therefore consider whether other factors require that a different construction be adopted from that which is indicated by a literal, grammatical reading of the statute.

We continue with a comparison of the exemption with its Federal counterpart. [Note 10] Such comparison gives little solace to the Globe's cause. If the language of a statute differs in material respects from a previously enacted analogous Federal statute which the Legislature appears to have considered,

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a decision to reject the legal standards embodied or implicit in the language of the Federal statute may be inferred. [Note 11] International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 854-855 (1983). The Federal statute exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552 (b) (6) (1976). This language clearly implies that the words "personnel" and "medical" files are subject to the qualifying language of the modifying clause. Department of the Air Force v. Rose, 425 U.S. 352 (1976).

The Massachusetts exemption, however, differs in several material respects. First, it substitutes the phrase "files or information" for the word "files" in the Federal statute. Second, the Massachusetts statute contains a semicolon after the word "information"; the Federal statute contains no such punctuation. Third, the phrase "similar files" in the Federal statute is replaced in the Massachusetts statute by the phrase "also any other materials or data relating to a specifically named individual." These differences between the two statutes reflect a conscious decision by the Legislature to deviate from the standard embodied in the Federal statute concerning the disclosure of medical and personnel information. The absence of a semicolon from the Federal exemption strengthens the view that the semicolon at issue here is not without meaning. Its insertion by the Legislature in G. L. c. 4, Section 7, Twenty-sixth (c), manifests a desire to ensure that the first clause would not be subject to the language of the modifying clause.

The omission of the phrase "similar files" is consistent with this reading of the exemption. Under the Federal

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statute, the term "similar files" can be defined only with reference to the character of medical and personnel files and hinges on the personal nature of the information contained. Pacific Molasses Co. v. NLRB Regional Office # 15, 577 F.2d 1172, 1179-1181 (5th Cir. 1978), and cases cited. See Department of the Air Force v. Rose, supra at 376-377. Thus, in the Federal statute the phrase "personnel and medical files and similar files" must be read together as a whole. The insertion of the semicolon in our statute, however, shatters the unity of the phrase. It is apparent that the Legislature recognized that it would be inappropriate to use a term which could be interpreted only by referring back to the first phrase of the statute. It seems clear that the Legislature intentionally utilized this method to establish a third category of "materials or data relating to a specifically named individual" which could be applied independently of the first phrase. [Note 12] We conclude that this comparison with the Federal exemption is strong evidence that we should follow the plain language of our exemption and hold that medical files or information are absolutely exempt from disclosure.

The Globe advances several reasons why we should disregard what seems to be the clear intent of the Legislature to establish an absolute exemption for personnel or medical files or information. First, the Globe argues that giving the statute its plain meaning will frustrate the policy of disclosure underlying G. L. c. 66, Section 10, will lead to absurd results, and will require overruling our decision in Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 817-818 (1978), which held that documents containing the names and salaries of police officers are public records.

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The Globe's argument is that an absolute exemption for "personnel and medical files or information" would mean that, contrary to our decision in Hastings, records pertaining to public employees would become unavailable.

We think the Globe's argument gives too broad a meaning to the words "personnel and medical files or information." Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection. Cf. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65-66 (1976). [Note 13]

The Globe makes much of the Legislature's use of the phrase "files or information" (emphasis added). We do not believe that the addition of the words "or information" eliminates the requirement that information be of a personal nature. [Note 14] Rather, it appears that the Legislature wished to avoid the problems which would follow from a restrictive interpretation of the term "files." See Wine Hobby USA, Inc. v. United States Internal Revenue Serv., 502 F.2d 133, 135 (3d Cir. 1974) (broad interpretation of "files" deemed necessary to avoid a denial of statutory protection in a case where release of requested materials would result in a clearly unwarranted invasion of personal privacy). The Legislature's choice of words was intended to ensure that the scope of the exemption turn on the character of the information sought rather than on the question whether the documents containing the information constituted a file.

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The Globe argues also that the scope of the exemption is ambiguous and, as a consequence, we must interpret it in accordance with the manifest purpose of the public records law. We agree that the dominant purpose of the law is to afford the public broad access to governmental records. See Attorney Gen. v. Assistant Comm'r of the Real Property Dep't of Boston, 380 Mass. 623, 625 (1980). But this purpose should not be used as a means of disregarding the considered judgment of the Legislature that the public right of access should be restricted in certain circumstances. Bougas v. Chief of Police of Lexington, supra at 62-63. Fund for Constitutional Gov't v. National Archives, 656 F.2d 856, 862 (D.C. Cir. 1981). Gulf & W. Indus., Inc. v. United States, 615 F.2d 527 (D.C. Cir. 1979). In the case of "personnel and medical files or information," the Legislature decided that it, and not others, should strike the balance between the public interest in disclosure and the legitimate interest in personal privacy of individuals about whom the government maintains information. [Note 15] It is not within the province of this court to rewrite the statute to strike a different balance.

Next, the Globe points to the provisions of more recently enacted statutes which maintain the confidentiality of certain medical information required to be submitted to the Department of Public Health. See G. L. c. 111, Section 110B, inserted by St. 1978, c. 395 (treatment or examination of Reyes syndrome); G. L. c. 111, Section 111B, inserted by St. 1980, c. 393, Section 1 (registry of malignant diseases); G. L. c. 111, Section 202, inserted by St. 1977, c. 598, Section 5 (report of fetal deaths); G. L. c. 111D, Section 6, inserted by St. 1975, c. 881, Section 1 (report of infectious diseases). It argues that the inclusion of these confidentiality provisions would not have been necessary if medical files or information are absolutely

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exempt from disclosure. Thus, the provisions are to be taken as evidence that the Legislature has interpreted the statute as permitting the release of some medical files or information.

This argument is not persuasive. It would have more appeal if the confidentiality provisions had been enacted contemporaneously with the exemption. [Note 16] More importantly, an examination of these provisions reveals that their inclusion is not inconsistent with an absolute exemption for medical files or information. It is clear that the Legislature saw the need to establish a more sensitive and particularized balance between the public interest in disclosure and the individual's interest in personal privacy than is possible under a general exemption. For example, G. L. c. 111, Section 110B, provides that the Department of Public Health may release reports concerning the treatment of Reyes syndrome "to persons authorized by the commissioner to conduct research studies or to other persons." It places the additional restriction that "no report or record shall be released which allows identification of the subjects of said reports or records." G. L. c. 111, Section 110B, inserted by St. 1978, c. 395. This more delicate resolution of the interests implicated by disclosure is not easily accomplished under a general exemption. [Note 17] Cf. Bougas v. Chief of Police of Lexington, supra at 64 (public records law and its exemptions do not discriminate

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among persons seeking disclosure). Indeed, such enactments are entirely consistent with the more general exemption of G. L. c. 4, Section 7, Twenty-sixth (a), as appearing in St. 1973, c. 1050, Section 1, which exempts from the definition of public records those records which are "specifically or by necessary implication exempted from disclosure by statute."

We conclude that medical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual. But information which does not permit the identification of any individual is not exempt. United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602 & n.4 (1982). We must therefore consider whether the deletion of particular identifying details from the documents sought (the certificates issued by the medical panel) may bring the documents outside the exemption. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 293 (1979). G. L. c. 66, Section 10 (segregable portion of a record which is an independent public record must be disclosed). The inquiry as to what constitutes identifying information regarding an individual who has been granted a pension must be considered not only from the viewpoint of the public but also from the vantage of those who are familiar with the individual and his career. See Department of the Air Force v. Rose, 425 U.S. 352, 380 (1976). Alirez v. NLRB, 676 F.2d 423, 427-428 (10th Cir. 1982). In the present case, the Board is obligated to release considerable amounts of information concerning the awarding of individual pensions. We conclude that the release of the medical statements, even without other particular identifying details, creates a grave risk of indirect identification. The information is, therefore, exempt from disclosure by virtue of G. L. c. 4, Section 7, Twenty-sixth (c). [Note 18]

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2. The Globe argues, however, that we should disregard the exemption entirely. It relies on St. 1973, c. 1050, Section 6, which provided that the exemptions shall not be construed to exempt from the definition of public records, any record which was a public record on July 1, 1974, the effective date of that statute. [Note 19] It follows then that documents which were public records before July 1, 1974, remain public records today. Before that date, the term "public records" was defined in relevant part as follows: "`Public records' shall mean any written or printed book or paper, any map or plan of the commonwealth, or of any county, district, city, town or authority established by the general court to serve a public purpose, which is the property thereof, and in or on which any entry has been made or is required to be made by law, or which any officer or employee of the commonwealth or of a county, district, city, town or such authority has received or is required to receive for filing, any official correspondence of any officer or employee of the commonwealth or of a county, district, city, town or such authority has received or is required to receive for filing, any official correspondence of any officer or employee of the commonwealth or of a county, district, city, town or such authority, and any book, paper, record or copy mentioned in section eleven A of chapter thirty A, where applicable, section nine F of chapter thirty-four, section twenty-three A of chapter thirty-nine, or sections five to eight, inclusive, and sixteen of chapter sixty-six, including public records made by photographic process as provided in section three of said chapter." G. L. c. 4, Section 7, Twenty-sixth, as amended by St. 1969, c. 831, Section 2. The Globe's contention is that the "cursory statement of the medical reason" for the Board's decision to grant a disability pension is found in documents which fell within the prior definition of "public records" and which, as a consequence, remain public records today.

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This attempt to circumvent the exemption is unpersuasive. The Globe contends that the certificate which a medical panel is required to issue under G. L. c. 32, Sections 6 (3) (a) & 7 (1), describing the disability from which the applicant suffers, was a public record prior to July 1, 1974. This contention turns on whether the certificate is a document which the Board "has received or is required to receive for filing."

Our cases indicate that the records which are "receive[d] for filing" "relate[ ] to books, papers and maps which are intended for the use of the public." Round v. Police Comm'r for Boston, 197 Mass. 218, 220 (1908). [Note 20] But records which are filed with a governmental entity merely to aid that entity in the administration of its duties are not public records. Gerry v. Worcester Consol. St. Ry., 248 Mass. 559, 567 (1924). Thus, in Gerry we held that accident reports which employers were required to file with the Industrial Accident Board were not public records. We must, therefore, inquire whether the medical certificate is intended for the use of the public or for the use of the Board as an aid in the administration of its duties.

We think that Gerry disposes of the issue. The panel's certificate "provides an effective vehicle for determining the preliminary medical question which would normally be beyond the competence of the local board." Malden Retirement Bd. v. Contributory Retirement Appeal Bd., 1 Mass. App. Ct. 420, 424 (1973). [Note 21] The certificate is intended to

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aid the board in the administration of its duties. [Note 22] The certificate was, therefore, not a public record as the term was defined prior to July 1, 1974. [Note 23]

The Globe also advances another ground for contending that these documents were public records prior to July 1, 1974. The argument is as follows. Under G. L. c. 32, Section 20 (5) (a), the Board is required to keep a record of its proceedings. A record of a public proceeding which must be kept by statute constituted a public record under the old definition of public records. New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 703 (1943). Thus, since the medical certificate may be contained in the record of the Board's proceedings, the information must be disclosed.

The implications of this argument are far reaching. Under G. L. c. 32, Section 20 (5) (b), as amended through St. 1956, c. 422, Section 2, the Board is empowered "to take evidence, subpoena witnesses, administer oaths and examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute." Unless the word "proceedings" is restricted in meaning, all the evidence and testimony before the Board is a matter of public record, regardless of any privacy interest at stake. We do not think that the Legislature intended this result.

The word "proceedings" connotes that the Board is required by G. L. c. 32, Section 20 (5) (a), to keep a record of subjects acted on and the votes and other official actions taken by the Board. See G. L. c. 66, Section 5A. Thus, under New

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England Box Co., supra, which concerned whether a public board had taken a certain action, those matters are clearly public records. But it is not required by G. L. c. 32, Section 20 (5) (a), that a record of the medical certificate relied on for granting a disability pension be kept as part of the Board's proceedings. We conclude, therefore, that the medical statements sought here are not subject to mandatory disclosure as part of the Board's "proceedings."

3. The Globe commenced this action for injunctive and declaratory relief after the Board refused to comply with the order issued by the Supervisor of Public Records. We have determined that the Supervisor erred in concluding that G. L. c. 66, Section 10, required that the cursory medical statements be disclosed. The Board has not given any indication that it intends to disclose the cursory medical statements unless it is ordered to do so. If we venture further, we shall be required to decide several issues which are not strictly necessary to the disposition of this case and which have not been fully briefed by all parties. [Note 24] We, therefore, leave them for another day.

We vacate that portion of the judgment which enjoins the Board from disclosing "a cursory statement of the medical reason for granting the disability pension" and from "giving any medical information whatsoever concerning persons receiving disability pensions." The case is remanded to the Superior Court for the entry of a declaration of rights in conformity with this opinion. See Pina v. Liberty Mut. Ins. Co., post 1001 (1983).

So ordered.