GARY F. DUNN vs. BOARD OF ASSESSORS OF STERLING.

TAURO, C.J. The petitioner seeks a writ of mandamus ordering the board of assessors of the town of Sterling to make available for the petitioner's examination field record cards which a private consulting firm prepared at the direction of the respondent for its use in making assessments. A judge of the Superior Court ruled that the field record cards are public records within the meaning of G. L. c. 4, Section 7, Twenty-sixth, as amended through St. 1969, c. 831, Section 2, and that the petitioner has the right under G. L. c. 66, Section 10, as appearing in St. 1948, c. 550, Section 5, to inspect and examine them. [Note 1] The respondent has appealed

Page 693

from the judge's order directing that a writ of mandamus issue.

The following facts appear from the evidence which is reported in full. [Note 2] Under a contract with the town dated April 3, 1969, private consultants inspected all properties in Sterling as part of a reappraisal and revaluation study in which the board of assessors was to act as "Appraisers-in-chief" and to make all final assessments. Pursuant to this contract, the respondent was furnished field record cards for each property inspected. These cards contain, inter alia, data pertaining to the land and neighborhood, data pertaining to the construction, age, and condition of buildings on the land, and valuation computations and totals for both land and buildings. On February 23, 1971, at a meeting of the board, the petitioner requested permission to examine all field record cards in the board's possession. [Note 3] The respondent has refused to comply with the petitioner's demand.

As in Town Crier, Inc. v. Chief of Police of Weston, ante, 682, the sole issue before us is whether certain records of a town are public records under the laws of the Commonwealth. In the Town Crier case, we held that, under our statutory definition of public records, a record kept by a public officer or employee is a public record only if the entries contained therein were made pursuant to a requirement of law. G. L. c. 4, Section 7, Twenty-sixth. We are of opinion that this holding is dispositive in the circumstances of the instant case.

Assessors are not mere public employees but are public officers whose powers and duties are defined by statute. See Cox v. Segee, 206 Mass. 380, 382; Williams v. City Manager of Haverhill, 330 Mass. 14, 15. There is no statutory mandate which requires that the board of assessors

Page 694

keep field record cards such as those involved in instant case. Compare G. L. c. 59, Section 43-46 and 49-52, requiring the making of valuation and assessment lists, and c. 59, Section 60, requiring the recording of all abatements of taxes. [Note 4] It is not enough that the field record cards are the property of the town and were obtained in the regular course of the board's business. As we have construed G. L. c. 4, Section 7, Twenty-sixty, the field record cards are not public records in the absence of a requirement of law that the board keep such cards. Further, while it may be that the board uses the information collected on these cards in making the valuation and assessment lists required under G. L. c. 59, Sections 43-46 and 49-52, we have held that a record containing information which later becomes part of a public record is not a public record merely by virtue of such relation but must itself satisfy the statutory definition in all respects. Town Crier, Inc. v. Chief of Police of Weston, ante, at 689-690. Cf. Mariano v. Building Inspector of Marlborough, 353 Mass. 663, 665-666. Accord, Steiner v. McMillan, 59 Mont. 30, 36; Matter of Andrews v. Police Dept. of the City of New York, 50 Misc. 2d (N. Y.) 343; Steel v. Johnson, 9 Wash. 2d 347, 355-356.

Apart from records containing entries "made or . . . required to be made by law," the statutory definition also encompasses records which a public officer or employee "has received or is required to receive for filing" and the official correspondence of public officers and employees. G. L. c. 4, Section 7, Twenty-sixth. See Lord v. Registrar of Motor Vehicles, 347 Mass. 608, 611. The field record cards in this case, however, plainly do not come within either category. Nor are they one of the classes of records which, although not covered by the statutory definition, have been made public records by G. L. c. 66, Section 17B,

Page 695

as amended through St. 1970, c. 778. See Town Crier, Inc. v. Chief of Police of Weston, ante, at 688-689.

The question whether such field record cards are public records has arisen in New Jersey under a statutory definition of public records nearly identical to our own. See N. J. Sts. Ann. Section 47:3-1. We agree with the Supreme Court of New Jersey which said: "[The statutory language contains] . . . no mandate embracing the information . . . in the controversial documents. . . . The cards were the result of a contract between the township and a third party as an extracurricular endeavor to facilitate the new tax program contemplated by the public body. Admittedly they were paid for by the taxpayers' money but the mere paying by the township does not of itself constitute them public records. All information and documents kept by the municipality are not public records, yet presumably all are paid for directly or indirectly with public funds. We cannot, under the circumstances, classify the cards . . . as a public record." Tagliabue v. North Bergin, 9 N. J. 32, 35-36. [Note 5]

For these reasons, we conclude that the field record cards in the instant case do not constitute public records and there exists no right of public access under G. L. c. 66, Section 10. [Note 6]

Page 696

The order for issuance of the writ of mandamus is reversed. Judgment dismissing the petition is to be entered.

So ordered.