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Protecting Your Privacy: General Help
The Right to Privacy
The right to privacy is emerging as a major legal and social issue. Contemporary concern results from the documented misuse of governmental and corporate/private power in regard to record-keeping, computer database interfacing, and investigations, and the rapid growth in the technology of gathering personal information in both governmental and private institutions. Serious questions about potential misuse of vast quantities of stored personal data must be faced as we enter the 21st century.
Massachusetts has been uniquely involved in the development of the legal concept of the right to privacy since an article was published in the Harvard Law Review in 1890 by two Boston lawyers, Louis D. Brandeis and Joseph Warren. Later, Brandeis, as a Justice of the United States Supreme Court, articulated in a dissenting opinion the basic concepts of the constitutional right to privacy. The constitutional right to privacy has been a major development in American law in recent years.
Government Records LAW
Both federal and state governments collect personal information about you. Some of it, such as welfare records, will indicate that you are a participant in a government program. Other records may be generated from a law enforcement investigation.
On the federal level, the Freedom of Information Act and the Privacy Act generally give you access to any records about you, including records of the FBI, unless such records were collect for purposes of a criminal investigation. Within Massachusetts, various laws, including the Fair Information Practices Act and the Public Records Law, give you a right of access to state government records. In addition to access, you also have the right to seek to protect against the dissemination of your federal and state governmental records.
ACTION
If you believe that any state or federal government agency has records concerning you and you want access to those records, contact the public information officer of the agency to request access. For FBI records, write the Freedom of Information/Privacy Act Section, J. Edgar Hoover Building, 10th and Pennsylvania Avenue, N.W., Washington, D.C. 20535. Requests must include your place and date of birth and be notarized and be accompanied by a fee. For information concerning Massachusetts law, contact the Supervisor of Public Records, Room 1719, One Ashburton Place, Boston, MA 02108.
Credit Reports LAW
Whenever you apply for credit, the potential creditor will probably seek a report about you from a credit reporting agency. (Credit reporting agencies are regulated by both federal and state law. With newly enacted amendments, the Massachusetts credit reporting laws generally provide greater protection to consumers' privacy.) A credit report will describe your credit history. Under Massachusetts law, credit reporting agencies must give a clear, plain-meaning, written explanation of all information in a credit report. Generally, credit information about you may be maintained in a credit report for only seven years.
You can discover the information contained in a credit report and challenge inaccuracies you believe exist. Whenever credit is denied because of a credit report, the creditor must inform you of that fact and supply the name and address of the credit reporting agency which prepared the report. You are entitled to a free copy of the report from the reporting agency if credit is denied.
ACTION
If you want access to your credit file, first determine which credit reporting agency has your file. The easiest way is to ask the creditor to which you applied for credit to give it to you. When you have obtained the name of the credit reporting agency, you may request a copy of your credit report over the telephone by toll-free number or in writing. Currently, the law in Massachusetts stipulates that residents are entitled to one free credit report per year from each of the national credit reporting agencies.
If you believe the information in the credit report is inaccurate or incomplete, request the credit reporting agency to reinvestigate its information and change the credit report. The agency must reinvestigate and correct the erroneous information within 30 business days. The agency must provide you, free of charge, with a written report of the results of its reinvestigation within 10 business days after its completion. Additionally, upon your request, the agency must send the new report within 15 business days to all persons who have received the old one within the past two years for employment purposes, and within the past six months for other purposes. If the agency decides that it need not change your credit report, it must give you an opportunity to have your version of the facts placed in your file.
If you believe that a credit reporting agency or creditor has not complied with its legal responsibilities, contact an attorney or the Office of the Attorney General, the Commonwealth of Massachusetts, One Ashburton Place, Boston, MA 02108.
School Records LAW
State and Federal laws and regulations protect a parent's right to inspect and copy school records in any educational institution that receives federal funds. This includes public and many private schools. In Massachusetts, you are entitled to inspect your public school records within two consecutive weekdays after your request, and students fourteen years or older may have access to their own public school records. Eligible students or parents have the right to add information to the student record and request that the principle delete or amend information in the file. The principal must answer in writing to a deletion request within one week. If the request is denied you may appeal to the superintendent.
Educational institutions may not disseminate most information without informed written consent of the eligible student or parent. There are some exceptions. After providing public notice and giving an opportunity to object, a school may disseminate certain basic "directory" information which includes your name, address, and telephone listing. Schools must comply, even without your consent, to court subpoenas requesting information, federal audit requests, law enforcement requests regarding missing students, and requests from health departments. Without your consent a school may disclose information to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. It may release information upon request from: the Department of Social Services when investigating an allegation of abuse; probation officers in the investigation of cases of delinquent children; a justice of any court if a student is awaiting adjudication or is under the supervision of the court; and the Department of Youth Services if a student is committed to that agency. School staff are required to report instances of abuse to DSS and file a report involving a student's possession or use of a dangerous weapon on school premises with the police, school counselors, DSS, and the school committee. If a school provides information to third parties pursuant to these exceptions, the information may not be disseminated to other third parties without the written consent of the eligible student or parent.
The law allows schools to ask that you waive your rights to have access to personal letters of recommendation. This provision of the law is controversial because its effect is to nullify your right to see your records. ACTION
If you want access to your records at any educational institution, you should request the institution to permit you to see the records. If you believe that any of the information is inaccurate, you should request that the institution correct your record. If the institution declines to do so, find out about the school's appeal procedure and make an appeal.
If you don't want your directory information to be made available by the school, simply request that it not be disseminated.
Insurance and Employment Reports LAW
When you apply for life insurance and occasionally when you apply for a job, an insurance company or an employer will want to learn details about your personal habits before determining whether to grant insurance or offer a job. A prospective employer or insurance company may ask a consumer reporting agency to compile an investigative report. These reports are compiled from information about your reputation, personal characteristics and habits from investigations with neighbors, co-workers and associates. However, an insurance company may not include in its investigative report any information relating to or identifying your sexual orientation or that of a beneficiary or information relating to counseling for AIDS.
Before an insurance company or potential employer has an investigative report prepared about you, it must inform you that it intends to do so. Upon your written request, it must tell you the name and address of the company which will prepare the report and the nature and scope of the investigation. You have a right to dispute its accuracy. Insurance companies must provide a copy of the investigative report within thirty days.
If insurance or employment is denied as the result of information contained in the report, the insurance company or employer must tell you the name and address of the company that prepared the report. You also have a right to learn the substance of the report.
ACTION
If you are told that an investigative report is going to be prepared about you, be sure to ask for the name and address of the company which will prepare the report and the "nature and substance" of the investigation. Often the nature of the report sought appears in small print on a application. Be sure to look for such notices.
If you want to know what is in a consumer reporting agency's investigative report proceed as described in the section on credit reports to obtain access. The challenge procedures are also the same.
Medical Information LAW
The right of an individual to his or her medical records is a rapidly changing area of the law. Keep in mind that this is general information on the laws regarding access to and control over medical records. For legal advice, you should seek the assistance of an attorney. Currently, Massachusetts law gives you an absolute right to see and obtain a copy of your medical records from a hospital. Regulations ensure you the right to either a summary or a copy of the records held by a private physician, at the doctor's discretion. However, individuals do not have an absolute right to their inpatient psychiatric records if held by facilities under the supervision of or licensed by the Department of Mental Health. Such records may be obtained by court order, through request by the patient's attorney, or when the Commissioner of the Department determines that such release is in the patient's best interest.
When you apply for life insurance, the results of your physical examination will probably be sent to a data bank known as the Medical Information Bureau. If this happens, the insurance company will send you a notice that will include the address of the Medical Information Bureau. In addition, researchers, government agencies, computer agencies, Social Security, and Medicare can all obtain access to your medical records without your knowledge.
ACTION
If you have been to a hospital and want access to your records, ask the hospital records librarian for permission to see your records. You or your attorney may obtain a copy of your records upon payment of a fee.
The decision to deny access to your inpatient mental health records may be appealed to the Department of Mental Health.
If you want access to and copies of your records from a particular physician, write the Medical Information Bureau, P.O. Box 105, Essex Station, Boston, MA 02112. If you find that some of the bureau's information about you is inaccurate, write them and request that the records be corrected.
Criminal Records LAW
Currently, over 6000 private organizations have access to individuals' criminal records. While a person is in custody in a correctional facility and for a period of time after release, any member of the public may receive a record of that person's convictions from the Criminal History System Board for a fee. An individual may obtain access to his or her own records.
Massachusetts does have legislation in place to protect the confidentiality of criminal records. State law provides that adult criminal records may be sealed 15 years after conviction for a felony or 10 years after conviction for a misdemeanor if an individual has not been convicted of any criminal offense in the interim. Juvenile criminal records may be sealed 3 years after conviction, if an individual has not been convicted of any criminal offense in the interim. A person with a sealed record may answer "no record" to any question on an employment application concerning his sealed record. Massachusetts law also forbids employers to ask about juvenile records, misdemeanors more than five years old if the applicant has no convictions in the interim, a first conviction for certain minor offenses, and any arrests which did not lead to conviction.
ACTION
If you have a criminal record and wish to see it, contact your local police department or the Criminal History Systems Board in Chelsea to obtain a Personal Criminal Record Request Form. If, after seeing your record, you believe that it is incomplete or inaccurate, you may request a modification of the record by contacting the Chief Probation Officer of the court where you were arraigned for the offense. If your request is denied, you may file a complaint with the Criminal History Systems Board. If you still have questions, contact the Board's Legal Department. You may also file a complaint with the Board if you believe information regarding your criminal record has been misused or your record has been given out to a person or agency not legally entitled to have access to it.
If you believe you are eligible to have your criminal record sealed, contact the Office of the Commissioner of Probation in Boston.
Employee Records LAW
Massachusetts law ensures employees the right of access to their personnel records when requested in writing to the employer. Any employer receiving a request from an employee shall provide the employee with an opportunity to review his or her personnel record.
It is unlawful for an employer to require a job applicant or employee to take a lie detector test as a condition of employment or continued employment.
ACTION
If you disagree with any information contained in your personnel record, such information can be removed or corrected if your employer agrees to do so. If your employer does not agree to make the requested changes, you may submit a written statement explaining your position, which must be placed in your personnel record.
Through litigation, such as unemployment hearings and discrimination claims, an employee may also secure personnel records from an employer.
Social Security Number LAW
Many people feel that the Social Security Number is a sort of national identification number and that this development threatens individual privacy.
Section 7 of the Federal Privacy Act of 1974 states that no government agency may require an individual to give his or her Social Security Number for any purpose unless required by a federal law or regulation in effect before January 1, 1975. However, as of a 1976 amendment, the act does not apply to government agencies for issues of general welfare, motor vehicles, and taxes.
Many uses of your Social Security Number are required by federal law. For example, it is required for income tax purposes and for certain welfare benefits. However, there are a number of non-mandatory uses of the Social Security Number. In Massachusetts, for example, the Registry of Motor Vehicles uses your Social Security Number as your driver's license number. However, on request, the Registry or Motor Vehicles will provide an alternative identification number on your driver's license. The RMV is not required by law to allow this service and is free to change this policy to require use of Social Security numbers on a license at any time. Massachusetts law prohibits any persons or business entities from requiring a person to provide a Social Security Number for the purpose of accepting or cashing a check. For these purposes, the only personal information you are required to provide is your name, address, driver's license number or state identification card number and telephone number.
The Privacy Act does not affect use of the Social Security Number by private organizations.
ACTION If you don't want your Social Security Number on your driver's license, you may request a different identification number when applying for your license, or you may amend your current license for a nominal fee.
When a governmental agency (whether federal, state or local) requests you to provide your Social Security Number, ask if the collection of the Social Security Number is mandatory. If not, you may decline to furnish the number.
How to Get Help
If you need a lawyer and don't know how to find one, you may contact the Massachusetts Bar Association's Lawyer Referral Service. The number in Boston is (617) 654-0400 or TDD (617) 338-0585. Outside Boston you may call toll-free 1-800-392-6164. There is no charge to call the Lawyer Referral Service, and your first half-hour consultation with an LRS attorney is only $25.
The Massachusetts Bar Association also offers free help through its Dial-a-Lawyer call-in program. On the first Wednesday of each month, from 5:30 to 7:30 p.m., volunteer lawyers are available to answer your basic legal questions by phone. Dial-a-Lawyer may be reached at (617) 338-0610.Posted on Apr 28, 2000 |
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