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05/09/78 WESTINGHOUSE BROADCASTING COMPANY v.

May 9, 1978

WESTINGHOUSE BROADCASTING COMPANY, INC.
v.
SERGEANT-AT-ARMS OF THE GENERAL COURT OF MASSACHUSETTS



Suffolk. Civil action commenced in the Superior Court on July 29, 1977. The case was heard by George, J., a District Court Judge sitting under statutory authority. The Supreme Judicial Court granted a request for direct appellate review.

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

SYLLABUS BY THE COURT

Public Record. General Court.

The opinion of the court was delivered by: Liacos

Detailed sheets of long distance telephone calls made by members of the General Court were not records within control of the comptroller's division of the Executive Office for Administration and Finance where the comptroller had no duty to receive them and did not in fact receive them. [182-184]

Detailed sheets of long distance telephone calls made by members of the General Court which were delivered to the custody of the sergeant-at-arms and retained by him were part of the records of the Legislature and, as such, were not subject to public inspection under the provisions of G. L. c. 66, § 10. [184-186]

This is an action brought under G. L. c. 66, § 10, for an order in the nature of mandamus to compel the defendant, sergeant-at-arms of the General Court, to give the plaintiff access to certain telephone billing records. After a hearing, a Judge of the Superior Court ordered the defendant to make these records available to a representative of the plaintiff for inspection and copying. The defendant appealed this judgment, and the trial Judge granted a stay pending the appeal. We granted the plaintiff's application for direct appellate review.

The judgment is reversed on the ground that the records sought are records of the General Court and thus not subject to public disclosure under G. L. c. 66, § 10. We summarize the facts stated in the stipulation of agreed facts as supplemented by the findings of the Judge.

On June 27, 1977, the plaintiff requested permission from the sergeant-at-arms of the General Court to inspect all telephone billings incurred under account 0161-1000 for the months of December, 1976, and January and February, 1977, including "the total bill and the individual listing of charge calls and their origin as provided by the telephone company." *fn1 Account 0161-1000 is the budget item number for appropriations for the telephone and telegraph service of the General Court. The records which are the subject of this litigation are certain monthly telephone billings sent to the sergeant-at-arms by the New England Telephone and Telegraph Company. The billings consist of a summary billing card, stating the total amount of the bill for the period in question (cover sheet) and detailed sheets containing particulars as to all long distance telephone calls made for the billing period (detailed sheets). Information contained on the detailed sheets includes the date, time, place called, area code, telephone number, minutes, and cost of each long distance telephone call made in the relevant period.

The State comptroller in the Executive Office for Administration and Finance paid the telephone bills according to the following procedure. For each month in question, the sergeant-at-arms transmitted the cover sheet to the State comptroller, together with a standard invoice form and a batch transmittal form requesting that payment be made. The sergeant-at-arms, however, retained possession of the detailed sheets relating to each bill. Payment of the bills was then recommended by the comptroller. *fn2

When the defendant sergeant-at-arms refused to comply with the plaintiff's request for disclosure of these telephone billings, the plaintiff petitioned the supervisor of public records pursuant to G. L. c. 66, § 10 (c), for a determination whether the records requested are public. The supervisor determined that "by the express provisions of chapter 66, section 18, authority . . . [to administer the State Freedom of Information Act] does not extend to the records of the General Court." As a result of that determination the plaintiff commenced the present action.

The question for decision is whether the detailed sheets of long distance telephone calls made by the Legislature are public records within the meaning of G. L. c. 4, § 7, Twenty-sixth, as appearing in St. 1973, c. 1050, § 1, and are thereby subject to public disclosure under G. L. c. 66, § 10 (a). *fn3 The provisions of G. L. c. 4, § 7, Twenty-sixth, require disclosure of records "made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, . . . [unless one or more of nine statutory exemptions apply]."

1. Executive Records.

Although the Judge determined that the sergeant-at-arms is the custodian of the telephone bills, including the detailed sheets, he concluded that they "should be regarded as Executive Branch records and, hence, subject to public scrutiny." He based this Conclusion on the ground that "hese itemized bills are the supporting evidence of the Commonwealth's obligations, required by law, to be obtained by the Comptroller prior to payment." *fn4 An examination of the statutory framework for the payment of ...


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