Attorney General v. Collector of Lynn

• Decision Date: 26 January 1979
• Citation: 385 N.E.2d 505,377 Mass. 151
• Parties: , 4 Media L. Rep. 2563 ATTORNEY GENERAL v. COLLECTOR OF LYNN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 505

385 N.E.2d 505

377 Mass. 151, 4 Media L. Rep. 2563

ATTORNEY GENERAL v. COLLECTOR OF LYNN et al. ¹

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 4, 1978.

Decided Jan. 26, 1979.

Jonathan Brant, Asst. Atty. Gen., for plaintiff.

Nicholas Curuby, Asst. City Sol. of Lynn (Andrew J. Dilk, Town Counsel, Adams, Henry P. Grady, City Sol., Worcester, with him), for defendants.

Joseph Markarian, Jr., Boston, for Mass. Fair Share, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

The Attorney General appeals from a ruling that records of tax delinquents are not public records open to public inspection. See G.L. c. 66, § 10(A ); G.L. c. 4, § 7, Twenty-sixth. We reverse and declare that records of tax delinquents are public records open to inspection.

This action arises out of a request by individual members of Lynn Fair Share (an unincorporated association) to the collector of Lynn for lists of owners of real property in Lynn who were delinquent in the payment of their real estate taxes. The requested list included the names of the owners of real estate, addresses or descriptions of the parcels, and the total amounts of unpaid taxes respecting each of the parcels. The collector responded that the records were not available to the public. Members of Lynn Fair Share then requested a ruling from the supervisor of public records for the Commonwealth, who concluded that the records were public and ordered that they be made available for public inspection and copying. The collector did not comply with the ruling. The supervisor of public records requested the Attorney General to initiate procedures to enforce the ruling. See G.L. c. 66, § 10(B ). The Attorney General instituted this action.

At issue is whether records of tax delinquents are exempted from disclosure by G.L. c. 4, § 7, Twenty-sixth (A ) and (C ). The judge concluded that the records were exempted from the definition of public records specifically and by necessary implication of G.L. c. 60, § 8. See G.L. c. 4, § 7, Twenty-sixth (A ). The judge also ruled that the records were not public because disclosure would constitute an invasion of privacy. See G.L. c. 4, § 7, Twenty-sixth (C ). We disagree.

Effective in 1974, the definition of public records under G.L. c. 4, § 7, Twenty-sixth, was changed. St.1973, c. 1050, §§ 1, 7. Under the prior definition, public records were either "those in which 'any entry has been made . . . (pursuant to a legal requirement)' (or) . . . those in which 'any entry . . . is required to be made by law.' " Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 687, 282 N.E.2d 379, 383 (1972). Attorney Gen. v. Assessors of Woburn, --- Mass. ---, --- - --- ^A, 378 N.E.2d 45 (1978). Consequently, a determination of whether records were public records was based on an analysis of why the records were made and not on what information they contained.

The new definition of public records on the other hand is broader than the old and encompasses "all 'documentary materials or data, regardless of physical form or characteristics . . . received by any . . . authority of the commonwealth' unless the documents fall within certain stated exemptions." Wolfe v. Massachusetts Port Auth., 366 Mass. 417, 421 n.3, 319 N.E.2d 423, 426 (1974). Attorney Gen. v. School Comm. of Northampton, --- Mass. ---, --- - --- ^B, 375 N.E.2d 1188 (1978). Gougas v. Chief of Police of Lexington, 371 Mass. 59, ---, 354 N.E.2d 872 (1976).

Moreover, G.L. c. 66, § 10(A ) (as amended through St.1978, c. 294), provides in relevant part that "(e)very person having custody of any public record, as defined in clause twenty-sixth of section seven of chapter four, shall . . . furnish one copy thereof upon payment of a reasonable fee." General Laws c. 66, § 10(C ), as amended through St.1973, c. 1050, § 3, provides that "(i)n any court proceeding . . . there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies."

Of the nine exemptions ((A ) through (I ) set forth in G.L. c. 4, § 7, Twenty-sixth, the judge found two of the exceptions applicable to the facts presented. Those two exemptions to the public records definition found applicable by the judge were "(A ) specifically or by necessary implication exempted from disclosure by statute," and "(C ) . . . materials or data relating to a specifically named individual, the disclosure of which may constitute an invasion of personal privacy."

First, the judge found that the records sought were exempted from the definition of public records by necessary implication of G.L. c. 60, § 8, ² and thus the exemption in (A ) applied. General Laws c. 60, § 8, essentially provides that the records of a collector shall be open to inspection by the town auditor or other agent of the town at all reasonable times. Section 8 also requires that a collector exhibit the records on demand to other named town officials or to those designated by them, and a collector must afford those officials full opportunity to examine and copy those records.

The collectors argue that § 8 creates an exclusive list of those who may inspect a collector's records, necessarily implying a denial to all others of the right to inspect. In support of this contention, the collectors rely on Hardman v. Collector of Taxes of N. Adams, 317 Mass. 439, 58 N.E.2d 845 (1945). Hardman held that records kept by the collector which disclosed the tax due and the amount paid on a parcel of real estate were not public records. We concluded that G.L. c. 60, § 8, demonstrated an intent that only the officials listed therein or persons designated by them had a right to inspect the records. Id. at 445, 58 N.E.2d 848.

The collectors argue that the Legislature, in amending the definition of public records (G.L. c. 4, § 7, Twenty-sixth), demonstrated no intent to overrule Hardman or to repeal G.L. c. 60, § 8. They assert that if the Legislature intended to alter the Hardman holding or the meaning of § 8, it would have amended or repealed G.L. c. 60, § 102, which establishes penalties for any collector who does not comply with § 8.

We disagree. No language in § 8 suggests that the provision was meant to restrict the right to inspect records under G.L. c. 66, § 10. In fact, the right of officials to inspect under G.L. c. 60, § 8, complements the right of citizens to inspect under G.L. c. 66, § 10.

Officials responsible for managing town affairs have a greater need and responsibility to inspect town financial records than do ordinary citizens. Accordingly, G.L. c. 60, § 8, gives town officials faster and more expeditious access to those records than G.L. c. 66, § 10, gives to ordinary citizens. Under § 8, a collector's records must be open to the town auditor at all reasonable times, and must be open to other officials on demand during ordinary business hours. These officials must be given full opportunity to make copies of the records. If a collector refuses to allow examination and copying by the official, he may be fined. G.L. c. 60, § 102.

The citizen's right to inspect records under G.L. c. 66, § 10, is more limited. The custodian of records has ten days within which to comply with a request for inspection and must allow inspection "at reasonable times and without unreasonable delay." The citizen must inspect the records under the supervision of the custodian of those records, and is entitled to one copy of the records on payment of a reasonable fee. If the custodian refuses to allow inspection, the citizen may resort to administrative remedies.

In sum, § 8 creates an expedited inspection process for officials, recognizing the strong public interest favoring full knowledge of town financial records by such officials. Section 10 creates a more complex process for ordinary citizens, reflecting less public interest in such inspection. We think that G.L. c. 60, § 8, is harmonious with G.L. c. 66, § 10. We conclude that records of tax delinquents are not exempted from disclosure by necessary implication of G.L. c. 60, § 8. ³

Next, the collectors argue that the lists of tax delinquents are exempted from public inspection by G.L. c. 4, § 7, Twenty-sixth (C ), because disclosure would constitute an invasion of personal privacy. The judge below agreed.

Analysis under exemption (C ) requires a balancing between the seriousness of any invasion of privacy and the public right to know. See Hastings & Sons Pub. Co. v. City Treasurer of Lynn, --- Mass. --- ^C, 375 N.E.2d 299 (1978). The balancing process parallels that required by analogous Federal law. ⁴ Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest. Campbell v. United States Civil Serv. Comm'n, 539 F.2d 58, 62 (10th Cir. 1976).

Public disclosure of the lists of tax delinquents does involve some invasion of personal privacy. Publication of one's name on such a list would certainly result in personal embarrassment to an individual of normal sensibilities. See Wine Hobby USA, Inc. v. United States Internal Revenue Serv., 502 F.2d 133, 136-137 (3d Cir. 1974); Metropolitan Life Ins. Co. v. Usery, 426 F.Supp. 150, 167-169 (D.D.C.1976). However, we cannot say that disclosure publicized "intimate details" of a "highly personal" nature. ⁵ Compare Columbia Packing Co. v. United States Dep't of Agriculture,417 F.Supp. 651, 654 (D.Mass.1976), aff'd F.2d 495 (1st Cir. 1977); Rural Hous. Alliance v. United States Dep't of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73, 77 (1974). In HASTINGS & SONS PUB. CO. V. CITY TREASURER OF LYNN, --- MASS. ---, --- , 375 N.E.2D 299 (1978)^D, this court held that the...