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04/18/78 HASTINGS & SONS PUBLISHING COMPANY v. CITY TREASURER OF LYNN

April 18, 1978

HASTINGS & SONS PUBLISHING COMPANY
v.
CITY TREASURER OF LYNN & OTHERS (AND A COMPANION CASE)



Essex. Two civil actions commenced in the Superior Court on May 12, 1975, and March 31, 1976, respectively. A motion to revoke a preliminary injunction in the first case and for judgment on the pleadings in the second was heard by Ronan, J.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Public Record. Police. Municipal Corporations, Public record, Police. Privacy.

The opinion of the court was delivered by: Liacos

Payroll records of municipal employees, including records of disbursements to police for off-duty work details, were public records within the meaning of G. L. c. 66, § 10. [815-817]

Payroll records of municipal employees, including records of disbursements to police for off-duty work details, were not exempt from disclosure as public records by the provisions of G. L. c. 4, § 7, Twenty-sixth (c) [817-818]; nor would disclosure of such records constitute an infringement of the right to privacy under G. L. c. 214, § 1B, or under the United States Constitution [818-820].

The defendant members of the Lynn police department bring this appeal from a judgment in the Superior Court ordering the defendant treasurer of the city of Lynn (treasurer) to allow the plaintiff access to city payroll records for the year 1975. The Lynn policemen also appeal an order revoking a preliminary injunction which prohibited the disclosure of the financial records of members of the Lynn police department. *fn2 We affirm the order and the judgment on the ground that payroll records of municipal employees, including records of disbursements to police for off-duty work details, are subject to disclosure under G. L. c. 66, § 10.

On January 6, 1976, the plaintiff formally requested the treasurer of Lynn to disclose the "ase salaries and overtime payments for the calendar year 1975 of any and all categories of employees of the City of Lynn, including employees of the School Department." The information the plaintiff sought can be found in the municipal employee payroll records, prepared and maintained by the treasurer. The treasurer also keeps records of the monies received by the city for work performed by municipal employees on off-duty work details or on special detail work. See G. L. c. 44, § 53C. *fn3 These financial statements contain the name, address, base pay, overtime pay, miscellaneous payments, and gross pay of every municipal employee in Lynn.

When the treasurer refused to comply with the request for access to these records, the plaintiff initiated this suit by filing a complaint in the Superior Court pursuant to G. L. c. 66, § 10. Thereafter, the plaintiff and the treasurer executed a stipulation of facts, and the plaintiff moved for judgment on the pleadings and the stipulation. See Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). The stipulation stated that the treasurer refused to furnish the requested records to the plaintiff due to an outstanding preliminary injunction prohibiting him from disclosing the payroll records of members of the Lynn police department. Members of the Lynn police force, "on behalf of themselves and on behalf of all other police officer" of Lynn, had obtained this injunction in their action against certain municipal officers of Lynn. The stipulation provided that on dissolution of such injunction the treasurer would comply with the plaintiff's demand for access to the city payroll records.

Since members of the Lynn police department claimed an interest relating to the subject matter of the action brought by the plaintiff, the trial Judge joined the police as parties defendant in the instant case for the limited purpose of asserting any defense predicated on G. L. c. 214, § 1B (the privacy statute), or on any enforceable right of privacy. *fn4 See Mass. R. Civ. P. 19, 21, 365 Mass. 765, 767 (1974). See also Mass. R. Civ. P. 22, 365 Mass. 767 (1974). The policemen then filed a memorandum in support of the right to privacy, a pleading entitled "Answer, Counterclaim, and Petition for Declaratory Relief" and an affidavit in support thereof. After oral argument, the Judge revoked the preliminary in junction and ordered the treasurer to permit the plaintiff to inspect and examine those records containing base salaries and overtime payments for the calendar year 1975 of all categories of employees of Lynn. The policemen appealed to the Appeals Court, and we transferred the case here.

1. Public records issue. For many years Massachusetts has, by statute, required public access to various records and documents in the possession of its public officials. The first such statute, passed in 1851, provided for the maintenance of and access to municipal, county and town records. St. 1851, c. 161. See also St. 1897, c. 439. The present form of the public records statute is found in G. L. c. 66, § 10, as appearing in St. 1973, c. 1050, § 3, and provides in part: "Every person having custody of any public records . . . shall, at reasonable times and without unreasonable delay, permit them to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof on payment of a reasonable fee. Every person for whom a search of public records is made shall, at the direction of the person having custody of such records, pay the actual expense of such search."

Prior to 1973, a record was not "public" unless an entry had been made pursuant to a requirement of law, Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 687 (1972), or the record had been received or required to be received for filing, Dunn v. Assessors of Sterling, 361 Mass. 692, 694 (1972); Lord v. Registrar of Motor Vehicles, 347 Mass. 608, 611 (1964). The 1973 amendment to the statutory definition of public records brings a great many more documents to public view. See Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976); Wolfe v. Massachusetts Port Auth., 366 Mass. 417, 421 n.3 (1974). This broad definition of public records found in G. L. c. 4, § 7, Twenty-sixth, as amended through St. 1973, c. 1050, § 1, provides, in relevant part: "'Public records' shall mean all . . . financial statements . . . regardless of physical form or characteristics, made or received by any officer or employee of . . . any political subdivision . . . [of the Commonwealth] . . . [with certain exceptions]." *fn5

The intent to expand the disclosure of records in the 1973 amendments is clearly evident in the statute's express provision that the definition of public records, as amended, "shall not be construed to exempt any record which was a public record." St. 1973, c. 1050, § 6.

In light of these amendments to the Public Records Act favoring disclosure, we are not persuaded by the policemen's argument that municipal payroll records are not public records. They contend that the repeal in 1973 of G. L. c. 66, ยง 17B (h), which had specifically designated wage and salary records as public records, demonstrates a legislative intent to limit the scope of the statutory definition of "public record." An examination of the legislative history of the Public Records Act reveals the error in the policemen's interpretation of this statute. Section 17B created public access to certain records which did not meet the legal requirement test for public records. Town Crier, Inc. v. Chief of Police of Weston, supra at 688-689. However, the expansive definition of public records in the 1973 amendment to G. L. c. 4, ยง 7, eliminated the ...


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