Lawlor v. Shannon

No. 86-2516-Mc (D. Mass. August 29, 1988)

The court holds that a provision in Massachusetts' right-to-know law making communication of information obtained about workplace chemical hazardous a criminal offense violates the First Amendment, and the unconstitutional provision is severable from the rest of the statute. The right-to-know law requires public and private employers who manufacture or use toxic or hazardous substances to inform employees and community residents of the nature and effect of those substances in the workplace or community. The law makes it a criminal offense to communicate information obtained under the statute to others, with penalties of up to $ 5,000 in fines and up to one year in jail. The court first holds that the Massachusetts law's restriction on communication is not analogous to protective orders under Federal Rule of Civil Procedure 26(c). The potential for abuse in civil discovery is significant, and discovery may implicate privacy interests of the parties, thus justifying protective orders limiting communication of information learned through discovery even where First Amendment rights are implicated. The nature of the information in the right-to-know law, however, is contained in the statute itself, and involves no substantial privacy interest of the employer. Moreover, Rule 26(c) protective orders are granted on a case-by-case, good-cause basis, whereas the right-to-know law contains a blanket prohibition. The court then holds that the disclosure provision is an unconstitutional abridgement of protected speech under the First Amendment. The restriction on dissemination of information regulates speech content, and thus must be scrutinized more carefully than mere time, place, or manner restrictions. Promulgation of the section is within the state's police power, but the section does not further an important or substantial governmental interest. There is no evidence that defendants' concerns about industrial sabotage are legitimate, and no other states with right-to-know laws have experienced such problems. There is also no evidence that more traditional enforcement strategies for ensuring compliance with the statute would not work. Finally, the court holds that the unlawful section is severable from the rest of the statute.

Counsel for Plaintiffs
Charles C. Caldart
Public Interest Litigation Project
29 Temple Pl., Boston MA 02111
(617) 292-4800

Counsel for Defendants
Suzanne E. Durrell, Ass't Attorney General
One Ashburton Pl., Rm. 2019, Boston MA 02108
(617) 727-2200

Counsel for Amici Curiae
Marcia Drake Seeler
New England Legal Foundation
55 Union St., Boston MA 02108
(617) 367-0174

[18 ELR 21496]

McNaught, J.:

Memorandum and Order

This matter came on to be heard on cross motions for summary judgment (docket documents #28 & #45). Also pending is defendants' motion to dismiss (docket document #04). The parties have submitted a statement of certain agreed facts, an agreed list of documents, a number of affidavits and copies of the relevant statutes, regulations and standards. A hearing was held June 9, 1988 at which both sides favored the court with oral argument and the matters were taken under advisement.

The plaintiffs here are six individuals and the Massachusetts Public Interest Research Group ("MASSPIRG"), a non-profit corporation organized under the laws of Massachusetts. They seek declaratory and injunctive relief against the Attorney General of the Commonwealth of Massachusetts, the Commissioner of the Massachusetts Department of Public Health ("DPH"), the Commissioner of the Massachusetts Department of Public Health ("DPH"), the Commissioner of the Massachusetts Department of Labor and Industries ("DLI") and the Commissioner of the Massachusetts Department of Environmental Quality Engineering ("DEQE") in their official and individual capacities.

The underlying action centers on Massachusetts General Laws c. 111F, the so-called "right to know" law, which went into effect September, 1984. In general, c. 111F requires all Massachusetts employers, whether public or private, who manufacture, process, use or store any "toxic or hazardous" substances to inform their "employees" and, in certain circumstances "community residents" (as those terms are defined in sec. 1 of c. 111F) of the nature and effect of such substances present in their workplace or community.

This is done via the posting at a central location in the workplace of a "material safety data sheet ("MSDS") which sets forth in lay terms certain required information about the substances stored on the premises, including the health risks posed by the substances and the possibility of fire or explosion. In certain circumstances where the identity of a substance would reveal a "trade secret," section 5 of c. 111F allows an employer to withhold the information from the MSDS, subject to the approval of the Commissioner of DPH. In addition to being posted prominently in the workplace, section 16 of the statute requires that each MSDS be filed with the DEQE office where the employer is located and, upon request, with the applicable "municipal coordinator," as defined in the statute.

Administration of c. 111F is the joint responsibility of the defendant state agencies and the municipal coordinators of each city and town in the Commonwealth. DPH, DLI and DEQE have each promulgated regulations under c. 111F. See 310 C.M.R. 33.00 et seq.; 105 C.M.R. 670.00 et seq.; 454 C.M.R. 21.00 et seq. While DPH, DLI and DEQE each have certain administrative and investigatory duties under c. 111F, the responsibility for enforcing the civil and criminal penalties in the statute lies exclusively with the Attorney General.

Specifically at issue here is the validity of section 21(b) of c. 111F, which places certain restrictions on the disclosure of information obtained under the law. Section 21(b) reads:

(b) Any person who has obtained possession of or has access to information pursuant to the provisions of this chapter shall not disclose said information to any person not specifically authorized to receive it hereunder. Violation of this provision shall be punishable by a fine of not more than five thousand dollars or imprisonment for not more than one year, or both. Provided, however, that disclosure by an employee to his or her spouse, or to a fellow employee exposed to the same toxic or hazardous substance as is involved in the disclosure, shall not constitute a violation of this chapter.

Plaintiffs contend that unlike any of the other jurisdictions that have enacted "right to know" laws, such as New Jersey, Philadelphia and Cincinnati, Massachusetts forbids those who use the law from communicating health and safety information to others. For example, they argue that under the terms of the statute's broad disclosure restriction, those who obtain information under c. 111F may not disclose such to their doctor, lawyer, neighbor or selectman. Claiming that section 21(b) was inserted to prevent open public discussion of issues related to the industrial use of hazardous chemicals, plaintiffs assert that the provision's prohibition and corresponding criminal penalties violate the First Amendment to the United States Constitution. They also contend that the section violates the Equal Protection clause of the Fourteenth Amendment and that it conflicts with regulations promulgated by the federal Occupational Health and Safety Administration (OSHA) and with a community right to know statute recently passed by Congress. Plaintiffs seek a declaratory ruling that the disclosure restriction is unconstitutional and an injunction preventing defendants from enforcing it against plaintiffs or others.

Terming this "essentially a First Amendment case," plaintiffs argue that the Constitution's strong presumption in favor of free and open communication of information and ideas renders section 21(b) invalid. They note that there is no interest in using right to know information for commercial purposes. Rather, plaintiffs claim to seek free communication of the information so that they and others may use it for public education regarding the potential dangers from hazardous chemical substances, for public discussion and debate of issues related to the use of these substances in Massachusetts and for organizing community campaigns directed toward these issues. The underlying focus of this communication, plaintiffs contend, is therefore of undeniable public importance.

[18 ELR 21497]

That being the case, plaintiffs assert that the free speech interests in this case strike close to the heart of the rights clearly intended to be protected by the First Amendment. They argue, accordingly, that the restriction of these interests through section 21(b) of c. 111F must be soundly and persuasively justified. According to plaintiffs, defendants cannot meet the burden of justification. Plaintiffs contend that defendants have offered no concrete evidence to indicate that this disclosure restriction actually serves any legitimate governmental interest. Rather, the evidence strongly suggests that the primary purpose of section 21(b) is to discourage and suppress precisely the kind of public discussion and debate that plaintiffs seek to promote.

In support of this position, plaintiffs point to what they term is defendants' principal evidence regarding the nature of the governmental interests allegedly served by section 21(b), the affidavit of Richard E. Mastrangelo, General Counsel of the Associated Industries of Massachusetts (AIM) (docket document #47). Plaintiffs argue that the affidavit tells nothing of the legislative intent behind section 21(b) and that it in fact confirms the suspicion that the chief purpose of the restriction is the curtailment of activities protected by the First Amendment. For example, at page four, Mr. Mastrangelo warns that:

. . . uncontrolled dissemination of MSDS's could exacerbate the already overly emotional issue of the use of chemicals in a community and prevent a rational focus on future regulation of such chemicals.

Such a statement, argue the plaintiffs, compels the conclusion that the business community sought to have section 21(b) added to the right to know law because it wanted to control the "focus" of political discussion in the Commonwealth on an issue of clear public concern. Later, Mr. Mastrangelo cites concerns that the dissemination of MSDS information "could promote frivolous lawsuits which would be economically damaging to employers in the Commonwealth." (p. 5) Plaintiffs call such an assertion "paternalistic disdain of the common sense of the average citizen of Massachusetts." Sixth Amendment and due process considerations aside, they argue that this is but another attempt to suppress protected speech.

Defendants take issue with a number of plaintiffs' contentions. They refer to c. 111F as a "carefully crafted statute that delicately balances, on the one hand, the interests of employees and community residents in having access to certain information which would enable them to protect their own health and safety . . . and, on the other hand, the legitimate proprietary, privacy, and public interests of business and government by protecting against the unauthorized disclosure of information to the general public." Defendants argue that section 21(b) is valid on its face and as applied because it furthers an important government interest unrelated to the suppression of expression and that the restrictions in section 21(b) are no greater than are necessary to further that government interest.

According to defendants, the line of First Amendment cases which is most analogous to the present action is that dealing with protective orders entered regarding discovery under F.R. Civ. P. 26. In support of this position, defendants rely most heavily on Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

Seattle Times involved the entry of a protective order during discovery to protect one of the parties' financial and privacy interests. The order prohibited the defendant newspaper from publishing or using the proscribed information in any way except as necessary to prepare and try the case. The newspaper argued that the protective order violated its First Amendment rights to free speech. The Court disagreed. It noted that the newspaper had obtained the information not because of any First Amendment right of access, but rather through the discovery processes, which are "a matter of legislative grace." 467 U.S. at 32. Concluding that the protective order rule furthers a substantial government interest and rejecting a heightened First Amendment scrutiny, the Court upheld the protective order.

Applying this "bitter with the sweet" principle to the present action, defendants argue that even if section 21(b) is considered a restraint on free expression, it nonetheless is true, as in Seattle Times, that an employee or community resident who obtains information under c. 111F does so not because of any First Amendment right of access, but by legislative grace. Defendants note that prior to the enactment of the right to know law, citizens had no right under Massachusetts law to such information because it was considered to "not traditionally public," to borrow a phrase from the Seattle Times decision. From this point of view, defendants argue that the present action "is not the classic prior restraint that requires exacting First Amendment scrutiny." Seattle Times, 467 U.S. at 32.

Under this less exacting First Amendment scrutiny, defendants claim that in its dual role as a government and an employer, the Commonwealth has legitimate concerns regarding section 21(b). Among them are:

(1) the disruption of essential services if information fell into the wrong hands;

(2) that the alteration of MSDS's would misinform and/or endanger the public and perhaps injure a business' reputation;

(3) that public safety could be jeopardized by crime and industrial sabotage; and

(4) that fear of unwarranted disclosure might discourage employers from speaking early and honestly with DPH, DLI and/or DEQE in a potentially dangerous situation affecting public health or safety.

Arguing that all of these concerns show a substantial governmental interest, and noting all the while that c. 111F is not a freedom of information act, defendants argue that the court should defer to the legislature's weighing of the competing needs and interests of the parties affected by that statute and rule that c. 111F is valid.

Upon review and consideration, I agree with the plaintiffs that the disclosure restriction in the Massachusetts right to know law must be evaluated on its own terms, and not by analogy to the civil discovery process addressed in Seattle Times.

The contrast between the two situations is striking. In the case of civil discovery, the potential for abuse is significant. As the Court noted, "[t]his abuse is not limited to matters of delay and expense; discovery may also seriously implicate privacy interests of litigants and third persons." Seattle Times, 467 U.S. at 34-5. In upholding the protective order in Seattle Times, the Court was careful to note that "judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a lesser extent than would restraints on dissemination of information in a different context." 467 U.S. at 34. (emphasis supplied)

We have here a "different context," for the nature of the information sought to be disseminated under c. 111F is contained in the statute itself, and involves no substantial privacy interest of the employer. In fact, under sec. 5 of c. 111F, manufacturers may request trade secret status from the DPH for certain information they wish to have omitted from the MSDS. According to the agreed statement of facts submitted by the parties, DPH received 1,134 such requests between November 26, 1984, and May 1, 1987. It has denied but two.

Another factor mitigating against the application of Seattle Times to this set of facts is the mechanism for restricting the distribution of information. Referring to "repeated expressions of concern about undue and uncontrolled discovery," the Court therein noted that "reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse." 467 U.S. at 35 n. 20, quoting Herbert v. Lando, 441 U.S. 153 (1979). Rule 26(c) protective orders, then, are to be issued for good cause on a case-by-case basis in the sound discretion of the trial judge. Such is not the case with the right to know law which, in section 21(b), contains what is essentially a blanket prohibition against disclosure, with no opportunity for the sound discretion of the trial judge to enter the formula on a case-by-case basis. The attendant potential for the subjugation of First Amendment interests is, indeed, far greater here than in the Seattle Times scenario.

Having determined that the present action does not fall within the ambit of a protective order under Rule 26(c), a more traditional First Amendment analysis requires a finding that section 21(b) of c. 111F is an unconstitutional abridgment of protected speech.

The restriction on dissemination of information set out in section 21(b) is undeniably a regulation of the content of speech; it therefore "must be scrutinized more carefully" than mere time, place or manner restrictions. Consolidated Edison Company v. Public Service Commission of New York, 447 U.S. 529 (1980). In determining whether section 21(b) survives such scrutiny, the court applies [18 ELR 21498] the test set forth in United States v. O'Brien, 391 U.S. 367 (1967). The Court therein wrote:

To characterize the quality of the government interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the Constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

391 U.S. at 376-77.

The first element of this four-pronged test is met here. Plaintiffs concede that promulgation of section 21(b) is within the police power of the Commonwealth. Based on the record and counsel's argument, however, defendants utterly fail to demonstrate that section 21(b) "furthers an important or substantial government interest." They repeatedly refer to the risk of sabotage or robbery without offering evidence that such concerns are legitimate. Plaintiffs point out that if risks of this nature actually existed, one could assume that other states with right to know laws would by now have experienced them. See e.g., New Jersey Worker and Community Right to Know Act, N.J. Stat. Ann., sec. 34:5A-1 to -31 (West 1984). Yet defendants offer no such evidence. In addition, several of the reasons articulated by defendants in support of the restriction are not "unrelated to the suppression of expression." For example, defendants argue that section 21(b) helps insure compliance with the whole of c. 111F. However, they offer no evidence to suggest that the traditional methods of ensuring compliance, such as enforcement, education and penalties for non-compliance, would be unworkable within the framework of the statute. The affidavit of Mr. Mastrangelo, supra, is likewise devoid of any factual bases for the largely conclusory statements contained therein.

Based on the foregoing, defendants' motion to dismiss is hereby denied; there being no genuine issues of material fact in controversy, plaintiffs' motion for summary judgment is granted. Furthermore, I hold section 21(b) of c. 111F to be unconstitutional on its face and order defendants to cease its enforcement.

I am left to determine the effect of this order on the remaining enforceable sections of the statute. The legislature included the following clause in the overall statutory scheme of c. 111F:

If any section of this act shall be held unconstitutional either on its face or as applied, the unconstitutionality of that section shall not affect the remaining sections of this act.

Section 3 of chapter 470 of the Acts of 1983.

Such legislative intent, coupled with the fact that the remaining sections of c. 111F "form a coherent and comprehensible regulatory system" when standing alone (see Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1023 (1st Cir. 1981), I hold that section 21(b) is severable from c. 111F and that the remainder of the statute shall remain unaffected by this order.

SO ORDERED.