Tribune-Review Publishing Co. v. Westmoreland County Housing Authority , 574 Pa. 661 ( 2003 )

Justice LAMB

dissenting.

Because I believe the confidential settlement agreement between the Westmoreland County Housing Authority’s (Housing Authority) insurer, the Housing And Redevelopment Insurance Exchange (HARIE), and a complainant is not a public record subject to disclosure under the Right to Know Law, 63 P.S. §§ 66.1, 66.2,¹1 dissent.

The version of the Right to Know Act in effect in 2000 provided that a public record is a minute, order, decision, account, voucher or contract of a public agency which fixes the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons and which is not subject to a statutory or court-ordered non-disclosure. 65 P.S. § 66.1(2); North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037, 1039 (1999).

An agency was defined as any “municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.” 65 P.S. § 66.1(1).

Pursuant to the Right to Know Act, to be available for inspection, the records must be both public records and records of a state agency. Sapp Roofing Co., Inc. v. Sheet Metal Workers’ International Association, 552 Pa. 105, 713 A.2d 627, 629 (1998).

In Dynamic Student Services v. State System of Higher Education, 548 Pa. 347, 697 A.2d 239 (1997), this Court distinguished the records in the hands of the bookstores from the cancelled township checks in the hands of the bank in Carbondale Township v. Murray, 64 Pa.Cmwlth. 465, 440 A.2d 1273 (1982). There, the Commonwealth Court correctly held that the township retained control over the cancelled checks and could authorize the bank to produce them. The records sought in Dynamic Student Services were not those of the university but were sent directly to the bookstores. Since the bookstores were not public agencies they were, therefore, not in possession of the records of a state agency. Dynamic Student Services, 697 A.2d at 242 n. 4.

The Housing Authority’s argument that the Commonwealth Court failed to apply the holding of Dynamic Student Services is well taken. In Dynamic Student Services this court held that records of an independent entity do not become public records solely because that entity works closely with a public agency to carry out its stated purposes.² Likewise in this case, the records of HARIE do not become public records solely because of HARIE’s relationship with public agencies. A greater involvement is required, such as the expenditure of funds or the underwriting of liability found in Morning Call, Inc. v. Lower Saucon Township, 156 Pa.Cmwlth. 397, 627 A.2d 297 (1993).

In Morning Call, the settlement was subject to a Five Thousand Dollar ($5,000) deductible, payable by the township. Morning Call, 627 A.2d at 299. More importantly, in Morning Call, the township was a signatory to the Settlement Agreement, and would have been obligated for the full amount had its carrier failed to pay. Id. at 300. Thus, the agreement in Morning Call required the disbursement of public funds. 65 P.S. § 66.1(2).

The Ohio, West Virginia, and Washington cases that the majority cites all involve settlement agreements to which the public body was a signer. In this case, the Housing Authority did not see or sign the agreement. It is also true that in this case there was no evidence presented that the agreement had any financial impact on the Housing Authority.

The Housing Authority’s second question, whether the relationship between the Housing Authority and HARIE makes HARIE a public agency, is also answered in the negative by this Court’s decision in Dynamic Student Services. HARIE is a reciprocal insurer for housing authorities and, as a consequence, works closely with the public agencies it insures. HARIE does not become a public agency by association any more than the independent bookstores became public agencies because they supplied services to students at public universities. Dynamic Student Services, 697 A.2d at 242.

In Pennsylvania State University v. Derry Township School District, 557 Pa. 91, 731 A.2d 1272, 1274 (1999), this Court held that “[t]he mere funding of an institution does not make it an agency or instrumentality of the state.... The Commonwealth funds countless programs and institutions, but few of these are so closely aligned with the government as to be agencies thereof .. . [A]n entity’s status as an agency or instrumentality varies, depending on the issue for which the determination is being made.” See also Community College of Philadelphia v. Brown, 544 Pa. 31, 674 A.2d 670, 672 (1996) (holding that community colleges are not subject to the Right to Know Law because they are not “agencies” as that term is defined in the act).

The test for public agency is whether the entity is “[a] municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.” 65 P.S. § 66.1. There is no language from which it could be inferred that HARIE is performing an essential government function which would make it a public agency for the purposes of the Right to Know Law.

There is no suggestion in the case that either the creation of HARIE or the agreement was designed to shield public records from public view. When a public agency is not a party to, and no public funds are expended on account of, a settlement agreement that is maintained exclusively in the records of the agency’s insurer then that agreement should not be deemed a public record.

Accordingly, I would reverse the Order of the Commonwealth Court.

Chief Justice CAPPY joins this dissenting opinion.

1 . Act of June 21, 1957, P.L. 390, No. 212, as amended by the Act of June 17, 1971, P.L. 160, No. 9, 65 P.S. §§ 66.1-66.4. The legislature significantly amended the Right to Know Act in ihe Act of June 29, 2002, P.L. 663, No. 100, effective in 180 days, Section 7 of which provides: "If an agency receives a request for a record that is subject to a confidentiality agreement executed before the effective dale of this act, the law in effect at the time the agreement was executed, including judicial interpretation of the law, shall govern access to the record, even if the record is a public record, unless all parties to the confidentiality agreement agree in writing to be governed by this act.”

Since the agreement which is the subject of this dispute was executed on October 30, 2000, under Section 7 access to the record is governed by the Right to Know Law in effect at that time.

2 . By its holding today, the majority appears to have overruled Dynamic Student Services sub silentio.