City of Harrisburg v. J. Prince, Esq. , 186 A.3d 544 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Harrisburg :
:
v. : No. 1982 C.D. 2015
: Argued: June 7, 2017
Joshua Prince, Esq., :
:
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK FILED: May 10, 2018
Joshua Prince, Esq. (Requester) appeals the order of the Dauphin
County Court of Common Pleas (trial court) affirming in part, and reversing in part,
a Final Determination of the Pennsylvania Office of Open Records (OOR). The trial
court affirmed that portion of OOR’s Final Determination finding that no other
responsive records exist in the custody or control of the City of Harrisburg (City)
and reversed that portion of the Final Determination directing that the identity of the
names and addresses of donors to the “Protect Harrisburg Legal Defense Fund”
(Fund) contained in a spreadsheet that lists check dates, check numbers, names,
addresses, phone numbers, and amounts of monetary contributions (Spreadsheet) be
disclosed pursuant to the Right-to-Know Law (RTKL).1 We affirm.
On February 25, 2015, Requester submitted a request to the City
(Request) under the RTKL that sought the following records:
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
This is a request for all records, including, but not limited
to, financial records pursuant to Section 102,[2] since
January of 2015, relating to the US Law Shield, et al. v.
City of Harrisburg, et al. and Firearm Owners Against
Crime, et al. v. City of Harrisburg, et al. [cases] including,
but not limited to the following: (1) All records, including,
but not limited to, [the City’s Fund] . . . [a]s provided for
by Section 102, this specifically includes, but is not limited
to, the names, addresses, and amounts of any donations
to/receipts by the [City]; (2) All records, including, but not
limited to, all financial accounts and financial institutions
utilized by the [City] in relation to request (1); (3) All
records, including, but not limited to, contracts,
communications, and billings from or to Lavery, Faherty,
Patterson or any other law firm or attorney hired to review
the legal issues relating to request (1); and (4) Any other
record in any way relating to the current litigation
specified above.
Reproduced Record (R.R.) at 9a (emphasis added).
On February 26, 2015, the City partially denied the request pursuant to
Section 708(b)(13) of the RTKL, 65 P.S. §67.708(b)(13),3 and provided Requester
2
Section 102 of the RTKL defines “financial record,” in pertinent part, as “[a]ny account,
voucher or contract dealing with . . . the receipt or disbursement of funds by an agency [] or . . . an
agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.” 65
P.S. §67.102.
3
Section 708(b)(13) states:
(b) Exceptions.—Except as provided in subsections (c) and (d), the
following are exempt from access by a requester under this act:
***
(13) Records that would disclose the identity of an individual who
lawfully makes a donation to an agency unless the donation is
intended for or restricted to providing remuneration or personal
tangible benefit to a named public official or employee of the
agency, including lists of potential donors compiled by an agency to
2
with a redacted donor list. R.R. at 10a, 14a, 18a. The City’s open records officer
(Records Officer) redacted the names, addresses, check numbers, and telephone
numbers4 of the donors who contributed to the Fund and provided the donation
amounts to Requester. Id. at 12a. The Records Officer also explained that the City
did not have any formal agreement or letter with the Lavery law firm, in that the
City’s former insurance company retained the firm; the City’s new insurance
company continued with the firm; the firm’s hourly rate is $125.00; and, currently,
there is no bill. Id. at 16a. On March 2, 2015, the Records Officer provided
Requester with an updated, redacted donor list via email and indicated that the City
uses Citizens Bank for the Fund account; there is currently no bill from the Lavery
firm; no other firm is working on anything relating to the Fund; and asserted that
any communications from the Lavery firm are protected by the attorney-client
privilege. Id. at 19a-22a. Requester did not subsequently clarify the Request.
On March 11, 2015, Requester appealed to the OOR, challenging the
City’s partial denial of the Request and asserting grounds for disclosure. R.R. at
24a, 36a. On March 12, 2015, the OOR invited the parties to supplement the record
and directed the City to notify third parties of their ability to participate in the appeal.
pursue donations, donor profile information or personal identifying
information relating to a donor.
In turn, Section 708(c) states:
(c) Financial records.—The exceptions set forth in subsection (b)
shall not apply to financial records, except that an agency may redact
that portion of a financial record protected under subsection (b)(1),
(2), (3), (4), (5), (6), (16) or (17).
65 P.S. §67.708(c).
4
The donor telephone numbers are not at issue in this appeal.
3
Id. at 32a-33a. On March 18, 2015, the Records Officer reiterated his reason for
redacting the donor records, stating that he was unsure what contracts or bank
institution information was requested, and asking Requester to be specific so that he
can try to get the requested documents. Id. at 31a.
On March 23, 2015, Requester submitted a brief in support of his
appeal, arguing that the City did not meet its burden of proving that the requested
records were exempt from disclosure, and that the exception under Section
708(b)(13) of the RTKL does not apply because the donations to the Fund are
intended for the personal tangible benefit of the Mayor and City Council members
who are public officials and employees of the City. R.R. at 41a. Requester also
asserted that the City did not provide all of the requested records, including “account
numbers, account totals, and other information relating to the financial accounts
utilized by the City” with respect to the Fund; all “records relating to the
implementation, control, maintenance and function” of the Fund; documents
executed in establishing the Fund; contracts, communications, and billings from or
to the Lavery firm; and any other records relating to the U.S. Law Shield litigation,
including City Council meeting minutes. R.R. at 42a-43a. Requester also argued
that the communications between the City’s insurance company and the Lavery firm
would be subject to disclosure under Section 506(d)(1) and (3) of the RTKL. Id. at
43a.5 Finally, Requester claimed that, to the extent that the Records Officer failed
5
65 P.S. §67.506(d)(1), (3). Section 506(d)(1) and (3) state, in pertinent part:
(d) Agency possession.—
(1) A public record that is not in the possession of an agency but is
in the possession of a party with whom the agency has contracted to
perform a governmental function on behalf of the agency, and which
4
to disclose any other records relating to the litigation, this lack of response must be
viewed as a deemed denial and that the Records Officer should be ordered to disclose
those documents. Id.
In order to fully develop the record on appeal, the OOR requested the
following additional information from the City in the form of an affidavit: (1) what
the Fund is; (2) whether the Fund is a City financial account or one of a third party
for profit or non-profit; (3) whether the amounts are donated to the City or a third
party; and (4) whether the donors on the redacted list are individuals, corporations,
entities, etc. R.R. at 45a.
In response, the City’s Solicitor, Neil Grover, provided an unsworn
statement providing the following: (1) the Fund is “a subaccount/line item of the
Police Protection Special Revenue Fund (SPF) of the City”; (2) “[a]ll SPFs have
their own bank account. All expenditures from this fund are line item appropriated
by Council as per the normal budgeting process”; (3) “[a]ll revenues received for
this SPF are donated directly to the City, deposited by Treasury (checks are written
to ‘City Treasurer’) and accounted for in the City’s General Ledger/accounting
system”; and (4) all donors on the redacted list provided are individuals, not
corporations or any other entities. R.R. at 72a. The Solicitor asserted that because
the donor information is exempt from disclosure, the City is not required to give
directly relates to the governmental function and is not exempt under
this act, shall be considered a public record of the agency for
purposes of this act.
***
(3) A request for a public record in possession of a party other than
the agency shall be submitted to the open records officer of the
agency.
5
third parties notice pursuant to Section 707(a) of the RTKL, 65 P.S. §67.707(a). Id.
at 75a-76a.
The Solicitor also provided a sworn attestation made under the penalty
of perjury, stating that the Records Officer, in consultation with Solicitor Grover,
thoroughly examined the files in the possession, custody, and control of the City for
records responsive to the request, that inquiries with relevant City personnel and
third-party contractors were made in determining whether any responsive records
were in their possession, and that the City made a good faith effort in providing all
responsive records, in addition to the supplemental information requested by OOR.
R.R. at 78a-79a.
On April 9, April 17, and April 27, 2015, Requester submitted further
support for his appeal including, inter alia, the trial court’s opinion in U.S. Law
Shield of Pennsylvania, LLC v. City of Harrisburg, (C.C.P. Dauph., No. 2015 CV
00255 EQ, filed February 25, 2015) (holding that at least three of the City’s gun
ordinances were unlawful and granting a preliminary injunction in relation to the
enforcement of those ordinances),6 arguing that the donations being made to the City
in relation to the City’s ordinances are unlawful in light of U.S. Law Shield, and that
Section 708(b)(13) does not apply because it only applies to “lawful” donations.
R.R. at 50a, 55a. Requester argued that the City failed to notify any third parties in
the matter pursuant to Section 1101(c) of the RTKL, 65 P.S. §67.1101(c).7 R.R. at
6
On appeal to this Court, U.S. Law Shield was vacated and remanded to the trial court by
per curiam order in U.S. Law Shield of Pennsylvania v. City of Harrisburg, (Pa. Cmwlth., No. 449
C.D. 2015, filed October 28, 2015), based on this Court’s opinion and order declaring Act 192 of
2014 unconstitutional in Leach v. Commonwealth, 118 A.3d 1271 (Pa. Cmwlth. 2015), which was
affirmed by our Supreme Court in Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016).
7
Section 1101(c)(1) states:
6
50a, 85a. Requester also claimed that in response to an almost identical request to
the City of Lancaster, that city produced 418 pages of applicable records. Id. at 84a,
87a. Requester challenged the veracity of the Solicitor’s attestation, requested an in
camera review of all records in the City’s possession relating to his RTKL request,
and again questioned whether notice was given to third parties. Id. at 84a-85a.
On April 27, 2015, OOR issued its Final Determination granting in part,
and denying in part, Requester’s appeal. R.R. at 122a, 124a-125a. OOR concluded
that because the City submitted only an unsworn attestation from its solicitor and
not a sworn affidavit or statement establishing that Section 708(b)(13) applies, the
City failed to meet its burden of proving that the requested donor information is
exempt from disclosure under the RTKL. R.R. at 123a. OOR also concluded that
the City had demonstrated that no other responsive records exist in its possession,
custody, or control, relying on the Solicitor’s sworn attestation included at the end
of his response to the OOR’s request for additional information. R.R. at 124a. The
OOR directed that the City provide an unredacted donor list to Requester within 30
days of the determination, subject to this Court’s holding in Pennsylvania State
Education Association ex rel. Wilson v. Department of Community and Economic
Development, 110 A.3d 1076 (Pa. Cmwlth. 2015) (PSEA II)8 (enjoining the OOR
(1) A person other than the agency or requester with a direct interest
in the record subject to an appeal under this section may, within 15
days following receipt of actual knowledge of the appeal but no later
than the date the appeals officer issues an order, file a written request
to provide information or to appear before the appeals officer or to
file information in support of the requester’s or agency’s position.
65 P.S. §67.1101(c)(1).
8
On October 18, 2016, the Pennsylvania Supreme Court reversed this Court’s decision in
PSEA II in Pennsylvania State Education Association ex rel. Wilson v. Department of Community
and Economic Development, 148 A.3d 142 (Pa. 2016).
7
and public school districts from disclosing the home addresses of public school
employees until the affected employees have had written notice and a meaningful
opportunity to object at the request stage as required by Article I, Section 1 of the
Pennsylvania Constitution). R.R. at 123a, 125a. On May 27, 2015, the City
appealed the OOR’s Final Determination to the trial court.
In its petition for review, the City argued, inter alia, that OOR erred as
a matter of law and abused its discretion in: (1) disregarding the donor exception in
Section 708(b)(13) of the RTKL and in directing the release of that information to
Requester, which would “subject[] [the donors] to harassment and den[y] them the
statutory right to non-disclosure”; and (2) “misapplying municipal law on the
protections afforded local officials . . . who are identified in claims against a
municipal government,” as the City is the sole party responsible for paying the legal
fees associated with the actions for which the Fund was created. R.R. at 131a-133a.
In his cross-petition for review, Requester argued, inter alia, that OOR
erred as a matter of law, and that the City still has other responsive documents in its
possession. R.R. at 262a-267a. Requester also submitted a brief in support of
OOR’s Decision and an affidavit, arguing for the first time that the donor exception
in Section 708(b)(13) does not apply to financial records under Section 708(c),
which “prevents the application of [65 P.S.] §67.708(b)(13) to financial records as a
matter of law.” R.R. at 12b, 43b-48b.9 The City filed another brief and a sworn
affidavit of the Solicitor,10 in which he maintained that the donor names and
9
Requester also filed a motion to disqualify the Solicitor, which the trial court denied based
on Requester’s failure to follow the local rules.
10
The affidavit stated, “the City set up and promoted . . . [the F]und to help the City defray
legal expenses associated with defending challenges to local firearm ordinances,” because the City
is legally obligated to cover the cost of defending City officials in civil actions and, thus, the
8
addresses were properly redacted pursuant to the donor exception in Section
708(b)(13) of the RTKL, the City conducted a good faith review of the City’s
records, and that the City properly raised the attorney-client and attorney work
product privileges. Id. at 421a-423a, 133b.
On September 24, 2015, following two hearings and oral argument, the
trial court issued a Memorandum and Order disposing of the City’s appeal. The trial
court affirmed OOR’s determination that no other responsive records exist in the
custody or control of the City, and reversed the OOR’s determination that the
identity of the donors to the Fund must be disclosed. Trial Court 9/24/15
Memorandum and Order at 3, 4. The trial court concluded that the supplemental
affidavit of the Solicitor submitted to the court was “competent evidence,” “indicates
that the [F]und was set up by the City to help the City defray legal expenses
associated with defending challenges to local firearm ordinances,” and “that the
donations at issue cannot and do not provide remuneration or personal tangible
benefit to any public official or employee of the City.” Id. at 2. As a result, the trial
court determined that “the City has met its burden of proving that the donor
information is exempt from disclosure” under Section 708(b)(13) of the RTKL. Id.
The trial court also determined that the City established that no other responsive
records exist in its possession, accepting as true the Solicitor’s sworn attestation that
was submitted to the OOR. Id. at 3. Requester now appeals the trial court’s order
to this Court.
I.
donations cannot be for the personal tangible benefit of any public official or employee of the City.
R.R. at 421a.
9
On appeal,11 Requester first argues that the trial court erred in reversing
OOR’s determination that the names and addresses of the private donors to the Fund
contained in the Spreadsheet must be disclosed because it is a “financial record” as
defined in Section 102 of the RTKL.12 Requester asserts that the Spreadsheet
11
Our standard of review is limited to determining whether the trial court committed an
error of law, violated constitutional rights, or abused its discretion. SWB Yankees LLC v.
Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, 45 A.3d 1029 (Pa. 2012). “‘The
scope of review for a question of law under the [RTKL] is plenary.’” Id. (quoting Stein v. Plymouth
Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)).
12
As a corollary to this claim, Requester argues that the donations made to the Fund are
unlawful under Sections 6119 and 6120 of the Uniform Firearms Act, 18 Pa. C.S. §§6119, 6120,
and U.S. Law Shield. However, these claims are not raised in Requester’s Dauphin County Local
Rule 227.1A Concise Statement and are not addressed by the trial court in its Pa. R.A.P. 1925(a)
Memorandum Opinion. R.R. at 234b-236b; Trial Court 2/2/16 Memorandum Opinion. As a result,
these claims have been waived for purposes of appeal. See Dauphin County Local Rule 227.1A
(“In every appeal from an order . . . of this Court to which no post-trial motions . . . were filed but
such appeal is taken directly to an appellate court, appellant’s counsel shall, immediately upon
taking the appeal, file of record a concise statement of the matters complained of and intended to
be argued on appeal [(Concise Statement)], and shall serve a copy thereof upon the judge from
whose order . . . the appeal was taken . . . .”) (emphasis added). See generally Commonwealth v.
Barnes, 151 A.3d 121, 124 (Pa. 2016) (“Typically, an appellant waives any claim that is not
properly raised in the first instance before the trial court and preserved at every stage of his
appeal.”); Commonwealth v. Burchard, 503 A.2d 936, 938-39 (Pa. Super.), appeal denied sub nom.
Commonwealth v. Van Slochem, 523 A.2d 1131 (Pa. 1986) (“Our Courts have repeatedly held that
issues must be preserved at each and every stage of review; otherwise, they are deemed waived
and cannot subsequently be raised on appeal.”). See also Appeal of Borough of Churchill, 575
A.2d 550, 554-55 (Pa. 1990) (holding that trial courts have the ability to enact local rules adopting
a post-trial statutory appeal practice and procedure so long as the rules do not conflict with or
violate the Constitutions or laws of the United States or the Commonwealth or our state-wide
rules); Pa. R.A.P. 1925(b)(4)(i), (vii) (“If the judge entering the order giving rise to the notice of
appeal (“judge”) desires clarification of the errors complained of on appeal, the judge may enter
an order directing the appellant to file of record in the trial court and serve on the judge a [Concise
Statement]. . . . The [Concise] Statement shall set forth only those rulings or errors that the
appellant intends to challenge. . . . Issues not included in the [Concise] Statement and/or not raised
in accordance with the provisions of this paragraph [] are waived.”) (emphasis added).
Nevertheless, Requester’s reliance on the opinion in U.S. Law Shield is misplaced as he fails to
10
containing the donor information provided in relation to the Request is clearly an
“account” or “voucher” that deals with the “receipt . . . of funds by an agency” and,
therefore, falls within the definition of “financial record” in Section 102. Thus,
although the records would disclose the identity of the individual making the
donation, and personal identifying information that is otherwise exempt under
Section 708(b)(13) (because the donor records in this case are contained within a
financial record), Requester argues that the records are subject to disclosure under
Section 708(c) of the RTKL. Thus, Requester contends that the donor information
must be disclosed.13
The City counters that the trial court did not err in reversing OOR’s
determination because the donor information is protected under Section 708(b)(13).
The City contends that Section 706 of the RTKL, 65 P.S. §67.706,14 permits the
mention that, as outlined above, it was vacated and remanded to the trial court on appeal to this
Court. See supra n.6.
13
The City asserts that Requester has waived the Section 708(c) issue because it was not
raised in his cross-petition for review. However, Requester raised this issue in the brief filed in
the trial court in support of the cross-petition for review, at the second hearing before the trial
court, in his Concise Statement and in his appellate brief to this Court. R.R. at 10b, 12b, 214b,
234b. Thus, the issue is not waived.
14
Section 706 states, in relevant part:
If an agency determines that a public record . . . or financial record
contains information which is subject to access as well as
information which is not subject to access, the agency’s response
shall grant access to the information which is subject to access and
deny access to the information which is not subject to access. If the
information which is not subject to access is an integral part of the
public record . . . or financial record and cannot be separated, the
agency shall redact from the record the information which is not
subject to access, and the response shall grant access to the
information which is subject to access. The agency may not deny
access to the record if the information which is not subject to access
11
redaction of financial records, and if the definition of “financial record” in Section
102 is read too broadly, as Requester suggests, the donor exception in Section
708(b)(13) will be rendered a nullity.
In interpreting the RTKL, we are guided by the well-recognized
principles of statutory construction. Pursuant to Section 1921(a) of the Statutory
Construction Act of 1972, “[t]he object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly,” and
“[e]very statute shall be construed, if possible, to give effect to all its provisions.” 1
Pa. C.S. §1921(a). In ascertaining the intent of the Legislature in enacting a statute,
Section 1922 states that it is presumed “[t]hat the General Assembly does not intend
a result that is absurd, impossible of execution or unreasonable” and “intends [that]
the entire statute . . . be effective and certain.” 1 Pa. C.S. §1922(1), (2). Moreover,
Section 1921(b) provides, “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa. C.S. §1921(b).
Under Section 305 of the RTKL, 65 P.S. §67.305, there is a
presumption that all records in the possession of a local agency are presumed to be
public records unless: (1) a record is exempt under Section 708; (2) a record is
protected by a privilege; or (3) a record is exempt from disclosure under any other
Federal or State law or regulation or judicial order or decree. “Record” is defined,
under Section 102, as follows:
is able to be redacted. Information which an agency redacts in
accordance with this subsection shall be deemed a denial under
Chapter 9.
65 P.S. §67.706.
12
Information, regardless of physical form or characteristics,
that documents a transaction or activity of an agency and
that is created, received or retained pursuant to law or in
connection with a transaction, business or activity of the
agency. The term includes a document, paper, letter, map,
book, tape, photograph, film or sound recording,
information stored or maintained electronically and a data-
processed or image-processed document.
65 P.S. §67.102.
Relevant to the Request herein, Section 708(b)(13) exempts from
access “[r]ecords that would disclose the identity of an individual who lawfully
makes a donation to an agency . . . including . . . donor profile information or
personal identifying information relating to a donor,” except as provided in Section
708(c). 65 P.S. §67.708(b)(13). Section 708(c) provides that “[t]he exceptions set
forth in subsection (b) shall not apply to financial records,” except that an agency
may redact that portion of a financial record protected under specified Subsections
of Section 708(b), of which Subsection (b)(13) is not included. 65 P.S. §67.708(c)
(emphasis added). As noted above, “financial record” is defined in Section 102 in
pertinent part, as “[a]ny account, voucher or contract dealing with . . . the receipt or
disbursement of funds by an agency [] or . . . an agency’s acquisition, use or disposal
of services, supplies, materials, equipment or property.” 65 P.S. §67.102.
With respect to the ambit of what constitutes a “financial record” under
Sections 102 and 708(c), the Supreme Court has explained:
[W]hile [the agency and its contractors] would prefer to
emphasize the definitional language associating contracts
and disbursements with a government agency, the statute
plainly reaches more broadly via its prescription that
“financial records” encompass records “dealing with”
disbursements of public money and services acquisitions
by agencies. See 65 P.S. § 67.102; cf. N. Hills News
Record v. Town of McCandless, [722 A.2d 1037, 1039 (Pa.
1999)] (explaining that language within the former open-
13
record’s law’s definition of “public record”—which the
Legislature reposited in the definition of “financial record”
under the new Law—reaches some range of records
beyond accounts, vouchers, or contracts, subsuming
records which “bear a sufficient connection” to such
fiscally-related categories).
Department of Public Welfare v. Eiseman, 125 A.3d 19, 29-30 (Pa. 2015) (footnote
omitted). See also Pennsylvania State University v. State Employees’ Retirement
Board, 935 A.2d 530, 534 (Pa. 2007) (“[T]he term ‘account’ is to be broadly
construed for the benefit of the public, encompassing, at minimum, the
Commonwealth’s financial records of debit and credit entries, as well as monetary
receipts and disbursements.”); LaValle v. Office of General Counsel, 769 A.2d 449,
456 (Pa. 2001) (“[T]he [RTKL] reaches some class of materials that are not facially
accounts, vouchers, contracts, minutes, orders or decisions. The general constraint
upon this expanded class that became relevant in McCandless was that the party
seeking to inspect government records must establish some close connection
between one of the statutory categories and the materials sought.”).
The names and addresses in the Spreadsheet sought herein are not
sufficiently connected to any City account, voucher, or contract to constitute a
financial record subject to disclosure under the RTKL; rather the information in the
Spreadsheet is merely a collation of data with respect to the donors of private funds
that is subject to exemption. The private funds voluntarily donated to the City by
check were not “received” by the City, and did not become agency funds for
purposes of the RTKL, until they were deposited into a City account, and the City’s
internal compilation of private donor information does not have a sufficiently close
connection to such account to be considered a financial record under the RTKL. In
short, records relating to the actual receipt and disbursement of the privately donated
nongovernmental funds by the City into and from a City account are “financial
14
records” for purposes of the RTKL; documents unrelated to the foregoing financial
transactions are not “financial records” and are subject to exemption. See, e.g.,
Tribune-Review Publishing Company v. Department of Community and Economic
Development, 859 A.2d 1261, 1268 (Pa. 2004) (“Neither ‘the log’ nor the
information it contains could be characterized fairly as an account, contract, or
voucher to accompany or memorialize funding. . . . While the database does indicate
whether certain applications have been awarded Program funding, it is simply an
electronic storage facility, and not a decisional document.”).15
As a result, the trial court did not err in determining that the requested
donor Spreadsheet information is exempt from disclosure under Section 708(b)(13)
of the RTKL. See The Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 729-
30 (Pa. Cmwlth. 2016), appeal denied, 169 A.3d 539 (Pa. 2017) (holding that private
individuals’ volunteering of their time and services and the use of their property to
a municipal program, without compensation, constitutes a “donation” for purposes
of Section 708(b)(13), and affirming a trial court’s holding that the donor exception
applied to all but one of withheld emails containing donor information).
Moreover, if the Spreadsheet is deemed to be a “financial record” for
purposes of Section 708(c) as Requester suggests, the donors’ names and addresses
would still be subject to redaction. It should be noted that Section 708(c) preserves
15
See also Global Tel*Link Corporation v. Wright, 147 A.3d 978, 981 (Pa. Cmwlth. 2016),
appeal denied, 167 A.3d 715 (Pa. 2017) (“In West Chester [University of Pennsylvania v.
Schackner, 124 A.3d 382, 385 (Pa. Cmwlth. 2015)], the requestor sought a copy of the contract
between the agency and a contractor hired by the agency. The OOR held that no exemptions could
be claimed for any portion of the contract because Section 708(c) of the RTKL, required full
disclosure of the contract. Id. at 387. This court disagreed with the OOR that information
contained within the contract had to be disclosed ‘just because it is part of the contract.’ Id. at 392.
Here, a document, which is otherwise exempt under Section 708(b)(26) of the RTKL because it
contains a bidder’s financial information, is not transformed into a financial record not subject to
the 708(b)(26) exemption simply because it is appended to the successful bidder’s contract.”).
15
the exception provided in Subsection (b)(6) that includes, in relevant part, “[t]he
following personal identification information: . . . A record containing all or part of
a person’s . . . personal financial information [and] home, cellular or personal
telephone numbers . . . .” 65 P.S. §67.708(b)(6)(i)(A). In turn, Section 102 defines
“personal financial information” as “[a]n individual’s personal credit, charge or
debit card information; bank account information; bank, credit or financial
statements; account or PIN numbers and other information relating to an
individual’s personal finances.” 65 P.S. §67.102 (emphasis added).
In Department of Conservation and Natural Resources v. Office of
Open Records, 1 A.3d 929 (Pa. Cmwlth. 2010), the Office of the Budget (Budget),
the Department of Conservation and Natural Resources (DCNR), and the
Department of General Services (DGS) (collectively, Agencies), appealed separate,
but related, OOR decisions requiring the Agencies to release unredacted certified
payroll records supplied to them by third-party contractors that had entered into
contracts with the Commonwealth for public projects. The third-party contractors
submitted the certified payroll records to the Agencies to prove their compliance
with the Pennsylvania Prevailing Wage Act, Act of August 15, 1961, P.L. 987, as
amended, 43 P.S. §§165-1 – 165-17 (PWA). The records contained information
relating to each of the contractors’ employees who worked on each project including
each employee’s name, Social Security number, home address, rate of pay, gross
amount of wages earned, number of hours worked, amount deducted for taxes and/or
benefits, and net pay. In response to RTKL requests for these records, the Agencies
produced redacted versions. The requesters challenged the redacted records that
were supplied to them, and OOR appeals officers directed the Agencies to release
unredacted copies of the records. On appeal, the Agencies argued, inter alia, that
16
the names and addresses of their employees were properly redacted from the
disclosed payroll records under the personal financial information exemption such
that the information that was provided satisfied the requirements of the RTKL.
In reversing the OOR determinations and applying the personal
financial exemption of Section 708(b)(6)(i)(A), we explained:
Though the exemptions in subsection (b) of Section
708 of the RTKL do not apply to financial records, such
as the certified payroll records here, subsection (c)
nonetheless provides that an agency “may redact that
portion of a financial record protected under subsection
(b)(1), (2), (3), (4), (5), (6), (16) or (17).” Id. Here, the
Agencies produced redacted copies of the certified payroll
records. [OOR] held that the Agencies erred in redacting
the names and/or home addresses of the third-party
contractors’ employees in those records. We find no error
in the Agencies’ decisions to exercise discretion afforded
to them under the RTKL and to release the certified
payroll records as redacted.
In its brief to the [OOR] appeals officer, DCNR
explained its reasons for redacting the home addresses as
follows:
The certified payrolls that are the subject of the
instant RTKL request contain the name of the
employer and the name, address, job classification,
hourly rate of pay, number of hours worked during
the reporting period, wages and fringe benefits paid,
and deductions made for each listed employee.
These employees are not agency employees and
there can be no question that this constitutes
personal financial information. However, in order
to provide information that may be useful to monitor
compliance with the [PWA], portions of the
information have been supplied, but not the home
address. When coupled with the other information
17
in the payroll records concerning their wages and
employment, the home addresses of employees
constitute “other information relating to an
individual’s personal finances” and should
therefore be exempt from disclosure under section
708(b)(6)(i)(A).
(R.R. at 9a (emphasis added)). This reasoning is
persuasive and can be applied with equal force to Budget’s
and DGS’s decisions to redact the names and addresses of
the third-party contractors’ employees—nongovernmental
employees—from the certified payroll records. The
financial information contained in the certified payroll
records is only personal to the individual employees so
long as the identity of the employees is attached to the
information. Redaction of the names and/or addresses
renders what was personal financial information,
impersonal. The Agencies thus acted reasonably and
within the bounds of their discretion by producing the
certified payroll records in redacted form to protect the
personal nature of the financial information contained in
those records.
Department of Conservation and Natural Resources, 1 A.3d at 942 (emphasis in
original and footnote omitted).
Likewise, herein, the personal identification information contained in
the Spreadsheet, if deemed to be a financial record, includes personal financial
information such as the donors’ names, addresses, and telephone numbers that would
also properly be redacted by the City pursuant to the exemption in Section
708(b)(6)(i)(A) of the RTKL.16 In sum, the trial court did not err in reversing that
portion of OOR’s Final Determination finding that the donors’ names and addresses
16
This “Court may affirm the trial court for any reason so long as the basis of [the] decision
is clear.” Schenck v. Township of Center, 893 A.2d 849, 853 (Pa. Cmwlth. 2006), appeal
dismissed, 975 A.3d 591 (Pa. 2009).
18
in the Spreadsheet are not subject to exemption under the relevant provisions of the
RTKL, and Requester’s claims to the contrary are without merit.
II.
Requester next argues that the trial court erred in permitting the City to
supplement the record by accepting the Solicitor’s supplemental affidavit. However,
Requester concedes that “it [was] within the Court’s discretion to allow
supplementation of the record,” but “contends that the [City] should not be allowed
to submit evidence that could have been submitted during the initial proceeding,
which the [City] failed to do in a timely matter.” Brief of the Appellant at 21.17
Indeed, the trial court’s review of OOR’s Final Determination pursuant
to Section 1302 of the RTKL, 65 P.S. §67.1302,18 was de novo and the court was
specifically empowered to accept and consider the Solicitor’s supplemental
affidavit. As the Pennsylvania Supreme Court has explained:
[A] full reading of the RTKL evidences a legislative intent
that the Chapter 13 courts must necessarily expand the
17
As a corollary to this claim, Requester also argues that OOR erred in permitting the City
to supplement the record in the first instance. See Brief of the Appellant at 18-21. However, this
claim was not raised in his Concise Statement and has been waived for purposes of appeal. See
supra n.12.
18
Section 1302(a) states, in relevant part:
(a) General rule.—Within 30 days of the mailing date of the final
determination of the appeals officer relating to a decision of a local
agency . . . a requester or local agency may file a petition for review
. . . with the court of common pleas for the county where the local
agency is located. The decision of the court shall contain findings
of fact and conclusions of law based upon the evidence as a whole.
65 P.S. §67.1302(a).
19
record, when required, to fulfill their statutory functions.
As we observed, Section 1304 of the RTKL permits a
Chapter 13 court to award costs and attorneys’ fees, and to
impose sanctions, after the court, not the appeals officer,
makes relevant factual findings and legal conclusions.
The necessary factual record for the significant decisions
that the reviewing courts must make under Section 1304
(and Section 1305 pertaining to civil penalties) would
quite likely not be found in a record confined solely to “the
request, the agency’s response, the appeal filed under
section 1101, the hearing transcript, if any, and the final
written determination of the appeals officer.” 65 P.S.
§67.1303(b). Indeed, Section 1304(a)(1) requires a court
to make factual findings regarding whether an agency
denying access to records acted “willfully or with wanton
disregard” or “otherwise . . . in bad faith.” 65 P.S.
§67.1304(a)(1). In similar fashion, the RTKL
contemplates that the foundational question of whether a
record or document is exempt from disclosure is a factual
one. 65 P.S. §67.708(a) (providing that the relevant
government agency bears the “burden of proving . . . by a
preponderance of the evidence” that an exemption
applies).
Therefore, we hold that the Chapter 13 courts have
the authority to expand their record to fulfill their statutory
role. To interpret Section 1303(b) in any other manner
creates a statutory scheme that is absurd, impossible of
execution, and unreasonable. 1 Pa. C.S. §1922(1).
Additionally, we note that the General Assembly has not
specifically described Section 1303(b) as setting forth a
“scope of review.” Accordingly, the Commonwealth
Court in the instant matter correctly held that it was
entitled to the broadest scope of review.
Bowling v. Office of Open Records, 75 A.3d 453, 476-77 (Pa. 2013). See also
Pennsylvania Housing Finance Agency v. Ali, 43 A.3d 532, 534 n.7 (Pa. Cmwlth.
2012) (“[T]he RTKL does not prohibit this Court from considering evidence that
was not presented to the OOR. Indeed, in reviewing a decision of the OOR, this
Court is entitled to the broadest scope of review, while mindful to proceed in a
20
manner most consistent with justice, fairness and expeditious resolution.”) (citation
omitted).
In allowing the supplementation of the record, the trial court explained,
“OOR’s determination was based on the lack of any evidence, or more specifically
the lack of an affidavit supporting the City’s position that the redacted records were
exempt. To cure this possible defect of the record below, the City supplements the
record before this Court with the Affidavit of [the Solicitor].” Trial Court 9/24/15
Memorandum and Order at 2. In the absence of any alleged or perceived abuse of
the trial court’s discretion,19 this Court will not reverse the trial court’s action in this
regard on appeal. See Honaman v. Township of Lower Merion, 13 A.3d 1014, 1025
(Pa. Cmwlth.), appeal denied, 31 A.3d 292 (Pa. 2011) (“‘An abuse of discretion is
not merely an error in judgment. Rather an abuse of discretion exists if the trial court
renders a judgment that is [plainly] unreasonable, arbitrary or capricious, fails to
apply the law, or was motivated by partiality, prejudice, bias or ill will. If the record
supports the trial court’s reasons and factual basis, the court did not abuse its
discretion.’”) (citation omitted and emphasis in original).
III.
Requester also argues that the trial court erred in affirming the OOR’s
determination that no other responsive records existed in the possession, custody, or
control of the City at the time of the Request. Specifically, Requester asserts that
the City produced no records in response to Subsection (4) of the Request seeking
19
See, e.g., Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1292 (Pa.
Cmwlth. 2014) (“[F]rom a review of what transpired in this matter, the trial court abused its
discretion by quashing [the r]equester’s Motion to Supplement the Record and refusing to
investigate [the r]equester’s claim of bad faith on the part of the District.”).
21
“Any other record in any way relating to the current litigation specified above.” R.R.
at 9a. In his brief, Requester explains that the records that he sought in this “catch-
all” portion of the Request included: (1) an e-mail exchange between a City official
and an official with the City of Lancaster (Lancaster) that he obtained through a
RTKL request to Lancaster; (2) the public filings for the U.S. Law Shield case; (3)
the minutes, notes and other documents from City Council meetings relating to
funding or appropriations from the Fund per the normal budgeting process; (4) any
contracts with insurance carriers or documents reflecting the indemnification of City
officials involved in litigation; and (5) third-party billing records from the City’s
insurance carrier as evidenced in a newspaper article published seven days prior to
submission of the Request. See Brief of the Appellant at 23-26.
However, Section 703 of the RTKL placed the initial burden on
Requester to “identify or describe the records sought with sufficient specificity to
enable [the City] to ascertain which records are being requested . . . .” 65 P.S.
§67.703. See Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa. Cmwlth.
2011) (“[I]t is the requester’s responsibility to tell an agency what records he or she
wants.”). In determining whether Requester has met his initial burden in this regard,
we have explained:
[T]his Court [has] set forth a three-part balancing test to
evaluate whether a request was sufficiently specific,
examining whether the request identified: (1) the subject
matter of the request; (2) the scope of the documents
sought; and (3) the timeframe for the records sought.
While this test is a flexible one, the requirement that a
requester identify the subject matter of a request
necessitates that a requester “identify the transaction or
activity of the agency for which the record is sought.” In
addition, the requirement that a requester identify the
scope of the documents sought necessitates that a
requester “identify a discrete group of documents either by
22
type . . . or recipient.” Finally, although the timeframe
element of the “sufficiently specific” test is the most fluid
when evaluating a requester's request, the request should
identify “a finite period of time for which records are
sought.”
Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1143 (Pa.
Cmwlth.), appeal denied, 174 A.3d 560 (Pa. 2017) (citations omitted).
Although Subsection (4) of the Request is sufficiently specific as to the
subject matter and the timeframe of the records sought thereby, it is not sufficiently
specific as to the scope of the documents sought because it does not “identify a
discrete group of documents either by type . . . or recipient.” Id. See also
Pennsylvania Housing Finance Agency, 43 A.3d at 535 (“[T]he requests for ‘all
correspondence . . . concerning’ the restructuring of the Tasker Village Mortgage
and the Chestnut/56th Street Apartment’s workout project ‘and/or distributed to the
Board’ were insufficiently specific for [the agency] to respond to the requests.”);
Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 517 (Pa.
Cmwlth. 2010) (“What is overbroad, though, is the first clause of the request, which
begins, ‘Any and all records, files, or manual(s), communication(s) of any kind . . .
.’ The portion of the request seeking any and all records, files or communications is
insufficiently specific for the [agency] to respond to the request.”) (citation omitted).
As a result, the City was not required to respond to Subsection (4) of
the Request in the first instance and Requester’s post hoc attempt to refine or specify
the records sought thereby is unavailing. See Smith Butz, LLC v. Pennsylvania
Department of Environmental Protection, 142 A.3d 941, 945 (Pa. Cmwlth. 2016)
(“Once an RTKL request is submitted, a requester is not permitted to expand or
modify the request on appeal.”) (citation omitted); Pennsylvania State Police, 995
A.2d at 516 (“[T]he requester tells the agency what records he wants, and the agency
23
responds by either giving the records or denying the request by providing specific
reasons why the request has been denied. The requester can then take an appeal to
the OOR where it is given to a hearing officer for a determination. Nowhere in this
process has the General Assembly provided that the OOR can refashion the
request.”).20
Nevertheless, assuming that the City was required to respond to
Subsection (4) of the Request, the Solicitor’s unsworn attestation and sworn affidavit
are sufficient to show that no other responsive records existed in the possession,
custody, or control of the City at the time of the Request. Section 901 of the RTKL,
65 P.S. §67.901, states, “Upon receipt of a written request for access to a record, an
agency shall make a good faith effort to determine if the record requested is a public
record . . . and whether the agency has possession . . . of the identified record . . . .”
The burden of proving that an agency does not have a record is on the agency.
Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth.
2011). “[A]n agency may satisfy its burden of proof that it does not possess a
requested record with either an unsworn attestation by the person who searched for
the record or a sworn affidavit of nonexistence of the record.” Smith Butz, LLC, 142
A.3d at 945 (citation omitted). “In the absence of any competent evidence that the
agency acted in bad faith or that the agency records exist, the averments in the []
affidavits should be accepted as true.” Id. (citation omitted).
In the instant matter, to establish that it had provided all responsive
records, the City submitted to the OOR an attestation of Solicitor Grover, stating that
the City’s Records Officer, in consultation with Solicitor Grover, thoroughly
examined the files in the City’s possession, custody, and control for records
20
This Court may affirm the trial court on any basis that is clear. Schenck, 893 A.2d at
853. See supra n.16.
24
responsive to the Request, that inquiries with relevant City personnel and third-party
contractors were made in determining whether any responsive records were in their
possession, and that the City made a good faith effort in providing all responsive
records, in addition to the supplemental information requested by OOR. See R.R. at
78a-79a.21 The City also relied on a supplemental sworn affidavit of Solicitor Grover
submitted to the trial court, which focused primarily on the donor exception and
stated that the communications of the City and the Lavery law firm are “plainly and
obviously” subject to the attorney-client and attorney work product privileges, that
the Records Officer undertook a good faith review of its records, and that the
Records Officer inquired with Requester twice as to whether he was satisfied with
the records provided to him, but received no response. See R.R. at 420a-424a.22
21
Specifically, the attestation states, in relevant part:
4. Upon receipt of the request, I have direct knowledge that the
[Records Officer], in consultation with me, caused a thorough
examination of files in the possession, custody and control of the
Agency for records responsive to the request underlying the appeal.
5. Additionally, inquiries with relevant Agency personnel and, if
applicable, relevant third party contractors, were made as to whether
the requested records exist in their possession.
6. After conducting a good faith search of the Agency’s files and
inquiring with relevant Agency personnel, I understand that all
public records within the Agency’s possession, custody or control
that are responsive to the request, along with supplemental
information requested, were obtained and provided to the requester.
R.R. at 78a-79a.
22
Specifically, the affidavit states, in pertinent part:
7. In response to separate [RTKL] requests from the McShane Firm
and [Requester], the City provided a list of donors to the fund, with
25
As the trial court explained:
“Public officials are presumed to have acted lawfully and
in good faith until facts showing the contrary are averred,
or in a proper case are averred and proved.” We find no
evidence in the record that any City official acted
unlawfully or in bad faith. We accept [the Solicitor’s]
attestation as true, and conclude that the City has
established that no other responsive record exists in its
possession.
Trial Court 9/24/15 Memorandum Opinion at 3 (citation omitted). The trial court
did not err in this regard in the absence of any competent evidence that the City acted
redacted names, addresses, and phone numbers of individual donors
for the legal defense fund, but providing the amounts of the
donations.
***
10. The communications of the Office of the City Solicitor and the
Lavery law firm, as its outside legal counsel in the Act 192 litigation,
plainly and obviously are subject to the attorney-client and attorney
work product privileges.
13. The public records sought by [Requester] in relation to his
[RTKL] request were provided after a good faith review of the
City’s records by our designated [Records] Officer, who works as a
paralegal in the City’s Law Bureau.
14. In the course of responding to the request of [Requester], our
[Records] Officer twice inquired with [Requester] as to whether the
records being provided satisfied his request and he received no
response.
15. The City produced all public records deemed to be responsive
by its [Records] Officer to [Requester]’s request and at no time
attempted to deny him access to public records.
R.R. at 421a-422a.
26
in bad faith or that the enumerated records were in the City’s possession at the time
that the Request was submitted.23 See Pennsylvania Housing Finance Agency, 43
A.3d at 536 (“OOR also correctly determined that [the agency] discharged its duty
under the RTKL by releasing those documents relating to the restructuring of the
Tasker Village mortgage and by attesting that corresponding records for the
Chestnut/56th Street Apartments project do not exist.”) (footnote omitted); Moore v.
Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010) (“The Department
searched its records and submitted both sworn and unsworn affidavits that it was not
in possession of [the requester’s] judgment of sentence-that such a record does not
currently exist. These statements are enough to satisfy the Department’s burden of
demonstrating the non-existence of the record in question, and obviously the
Department cannot grant access to a record that does not exist.”).24 As a result,
Requester’s allegation of error in this regard is likewise without merit.
23
Requester’s reliance on documents provided by the City of Lancaster in response to a
different RTKL request is irrelevant to our review of the City’s response to the instant Request.
See Woods v. Office of Open Records, 998 A.2d 665, 669 (Pa. Cmwlth. 2010) (“[T]he Board [of
Probation and Parole maintains that it is irrelevant in the present case what the state of New York
did or did not provide to [the requester]. What is relevant is whether this Court agrees with the
OOR that the Board met its burden of proving that the [requested document] was exempt from
public disclosure . . . . We agree.”). See also Germantown Cab Company v. Philadelphia Parking
Authority, (Pa. Cmwlth., No. 161 C.D. 2012, filed June 27, 2013), slip op. at 4 (“[The requester]
contends that the records it received from the Parking Authority in this case cannot be reconciled
with records that it received from the Parking Authority in other requests. Accordingly, the
Parking Authority’s response was not valid under the [RTKL]. In this respect, [the requester’s]
brief addresses another request, not the above-quoted request. Accordingly, it makes arguments
not relevant to the instant request for public records.”).
24
See also Germantown Cab Company, slip op. at 5 (“The Parking Authority provided the
notarized affidavit of [its open records officer] to establish that the Parking Authority provided all
responsive records. The notarized affidavit of an agency’s open records officer is sufficient
evidence to show that all responsive records have been provided. As such, [OOR] properly denied
[the requester’s] appeal.”) (citation omitted).
27
IV.
Requester’s final claim is that the trial court erred in restricting his
examination of the Solicitor at one of the trial court’s hearings.25 Specifically,
Requester contends that the trial court prevented him from asking the Solicitor
“questions regarding what type of review of the file he had performed, his familiarity
with the materials and how he concluded that no other records existed,” “how the
City set up the legal defense fund, why minutes or other documentation from a City
council meeting were not included if it was part of the normal voting process, and
the process that RTKL [Records Officer] utilized in reviewing the City’s records.”
Brief of the Appellant at 26. However, contrary to Requester’s assertion, he
specifically asked the trial court, “Am I to understand that I am not allowed to ask
the solicitor about how he reviewed the records and then about any of the documents
that were released in the [RTKL] request?” to which the court replied, “No. You
can ask that.” R.R. at 197b-198b.
With respect to the remaining matters that Requester was purportedly
prevented from pursuing by the trial court, there is absolutely no indication in the
record that he attempted to question the Solicitor in these areas, see id. at 189b-202b,
and he fails to cite the portions of the record demonstrating that the trial court
prevented him from doing so. See Pa. R.A.P. 2119(c) (“If reference is made to the .
. . evidence . . . or any other matter appearing in the record, the argument must set
forth, in immediate connection therewith, or in a footnote thereto, the place in the
25
See Pa. R.E. 611(a) (“The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to: (1) make those procedures
effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from
harassment or undue embarrassment.”).
28
record where the matter referred to appears[.]”); G. Ronald Darlington et al., 20A
West’s Pennsylvania Appellate Practice §2119:11 at 660 (2017-2018 ed.) (“It is not
reasonable to expect the reviewing court to peruse the trial record, take note of each
time there was an objection to evidence, and determine whether any of those
instances warrant appellate relief. Counsel who expects the court to do so risks a
finding of waiver. [See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007)
(issues for which there was neither reference to record nor support from citation to
authority were waived; judgment of sentence affirmed).]”). As a result, any claim
of error in this regard is either meritless or has been waived.
V.
Finally, the City has asked this Court to award attorneys’ fees pursuant
to Section 1304(b) of the RTKL, 65 P.S. §67.1304(b),26 because it claims that
Requester has raised arguments in bad faith, is being slanderous towards the donors,
and has required the City to obtain outside counsel to avoid the appearance of
impropriety. The trial court did not address this issue. However, because we
conclude that the legal challenges presented in this matter are of arguable merit and
not frivolous, the award of attorneys’ fees is not warranted. See, e.g., Parsons v.
Urban Redevelopment Authority, 893 A.2d 164, 170 (Pa. Cmwlth. 2006), appeal
denied, 916 A.2d 635 (Pa. 2007) (holding that the award of attorneys’ fees was not
warranted where the agency did not willfully or wantonly base its defense on an
unreasonable interpretation of the law).
Accordingly, the trial court’s order is affirmed.
26
Section 1304(b) states, “[t]he court may award reasonable attorney fees and costs of
litigation or an appropriate portion thereof to an agency . . . if the court finds that the legal challenge
under this chapter was frivolous.” 65 P.S. §67.1304(b).
29
MICHAEL H. WOJCIK, Judge
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Harrisburg :
:
v. : No. 1982 C.D. 2015
:
Joshua Prince, Esq., :
:
Appellant :
ORDER
AND NOW, this 10th day of May, 2018, the order of the Dauphin
County Court of Common Pleas dated September 24, 2015, at No. 2015-CV-4163-
MP is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Harrisburg :
:
v. : No. 1982 C.D. 2015
: Argued: June 7, 2017
Joshua Prince, Esq., :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
DISSENTING OPINION BY
JUDGE COHN JUBELIRER FILED: May 10, 2018
I respectfully dissent from the well-written Majority opinion because I cannot
agree with its reasoning that a spreadsheet that lists check dates, check numbers,
names, addresses, phone numbers, and the amounts of monetary contributions
(Donor Spreadsheet), which the City of Harrisburg (City) receives, deposits into a
City account, and then disburses to pay legal expenses, is not a “financial record” of
the City under the Right-to-Know Law (RTKL).1
Section 102 of the RTKL defines “financial record” as:
(1) [a]ny account, voucher or contract dealing with:
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
(i) the receipt or disbursement of funds by an agency; or
(ii) an agency’s acquisition, use or disposal of services,
supplies, materials, equipment or property.
65 P.S. § 67.102. The Pennsylvania Supreme Court has broadly construed the term,
as evidenced by the cases that the Majority cites. For instance, in Department of
Public Welfare v. Eiseman, the Supreme Court explained:
the [RTKL] plainly reaches more broadly via its prescription that
“financial records” encompass records “dealing with” disbursements of
public money and services acquisitions by agencies. See 65 P.S.
§ 67.102; cf. N. Hills News Record v. Town of McCandless, 722 A.2d
1037, 1039 (Pa. 1999) (explaining that language within the former
open-record’s law’s definition of “public record”—which the
Legislature reposited in the definition of “financial record” under the
new [RTKL]—reaches some range of records beyond accounts,
vouchers, or contracts, subsuming records which “bear a sufficient
connection” to such fiscally-related categories).
125 A.3d 19, 29-30 (Pa. 2015) (emphasis added) (footnote omitted). More recently,
the Supreme Court stated “the term ‘account’ is to be broadly construed for the
benefit of the public, encompassing, at minimum, the Commonwealth’s financial
records of debit and credit entries, as well as monetary receipts and disbursements.”
Pa. State Univ. v. State Emps.’ Ret. Bd., 935 A.2d 530, 534 (Pa. 2007); see also
LaValle v. Office of Gen. Counsel, 769 A.2d 449, 456 (Pa. 2001) (“[T]he [RTKL]
reaches some class of materials that are not facially accounts [or] vouchers . . . .”).
Yet, the Majority concludes that the Donor Spreadsheet is “merely a collation
of data with respect to the donors of private funds.” City of Harrisburg v. Prince,
__ A.3d __, __ (Pa. Cmwlth., No. 1982 C.D. 2015, filed May 10, 2018), slip op. at
15. The Majority reasons that:
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[t]he private funds voluntarily donated to the City by check were not
“received” by the City, and did not become agency funds for the
purposes of the RTKL, until they were deposited into a City account,
and the City’s internal compilation of private donor information does
not have a sufficiently close connection to such account to be
considered a financial record under the RTKL. In short, records
relating to the actual receipt and disbursement of the privately donated
nongovernmental funds by the City into and from a City account are
“financial records” for purposes of the RTKL; documents unrelated to
the foregoing financial transactions are not “financial records” and are
subject to exemption.
Id. In my opinion, there is no doubt that the funds here are received by the City.
The Donor Spreadsheet clearly evidences the receipt of funds by the City from
donors, which, in turn, are deposited by the City Treasury into a City bank account.
The funds are accounted for in the City’s General Ledger/accounting system and
appropriated by City Council towards legal fees. (See City Response to Office of
Open Records (OOR), Reproduced Record (R.R.) at 72a.) In short, the Donor
Spreadsheet pertains to, and is an accounting of, the funds that were actually received
by the City. As a result, I would conclude that the donor information contained
within the Donor Spreadsheet is a “financial record” as defined in Section 102 of the
RTKL.
Furthermore, I would conclude that the donor exception in Section 708(b)(13)
of the RTKL does not preclude release of the records because the donor exception
is not one of the exceptions that applies to financial records. Section 708(b)(13)
provides, in relevant part:
(b) Exceptions.--Except as provided in subsections (c) and (d), the
following are exempt from access by a requester under this act:
***
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(13) Records that would disclose the identity of an individual who
lawfully makes a donation to an agency unless the donation is intended
for or restricted to providing remuneration or personal tangible benefit
to a named public official or employee of the agency, including lists of
potential donors compiled by an agency to pursue donations, donor
profile information or personal identifying information relating to a
donor.
65 P.S. § 67.708(b)(13).
However, Section 708(c) provides, under the heading “Financial records” that
“[t]he exceptions set forth in subsection (b) shall not apply to financial records,
except that an agency may redact that portion of a financial record protected under
subsection (b)(1), (2), (3), (4), (5), (6), (16) or (17).” 65 P.S. § 67.708(c) (emphasis
added). Of importance, the donor exception found in subsection (b)(13) is not
included. In Eiseman, our Supreme Court considered the interplay between Section
708(c) and another exemption found in Section 708(b) – the trade secrets and/or
confidential proprietary information exception in Section 708(b)(11) of the RTKL,
65 P.S. § 67.708(b)(11). After concluding that the requested information – managed
care organization rates – were “financial records,” the Supreme Court found the
exception in Section 708(b)(11) did not prevent their disclosure. Instead, the
Supreme Court found that Section 708(c) was the operative section. Eiseman, 125
A.3d at 32. The Supreme Court went on to say that “if the General Assembly wished
for dissemination to be withheld, it would have been a straightforward matter to
provide for redaction of trade-secrets information in Section 708(c) of the [RTKL],
as was done in relation to eight of the other openness exceptions which are otherwise
withheld from financial records.” Id. (citing 65 P.S. § 67.708(c) (withholding the
exceptions in subsection (b)(1), (2), (3), (4), (5), (6), (16) or (17) from financial
records)). Here, because the donor information is contained within a financial
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record, and Section 708(c) does not list the donor exception as a basis for redaction,
I would hold that the information would be subject to disclosure.
The Majority holds that even if the Donor Spreadsheet was a “financial
record,” the donor’s names and addresses would still be subject to redaction because
they constitute personal financial information, which is exempt from disclosure
under Section 708(b)(6)(i)(A), 65 P.S. § 67.708(b)(6)(i)(A), and this exemption is
listed in Section 708(c). Section 102 defines “personal financial information” as
“[a]n individual’s personal credit, charge or debit card information; bank account
information; bank, credit or financial statements; account or PIN numbers and other
information relating to an individual’s personal finances.” 65 P.S. § 67.102. It is
the latter part of this definition – “other information relating to an individual’s
personal finances” – that the Majority relies upon to conclude the information sought
here is “personal financial information.” The Majority cites to Department of
Conservation and Natural Resources v. Office of Open Records, 1 A.3d 929 (Pa.
Cmwlth. 2010) (DCNR), for support of its overly broad interpretation of the term.
In that case, at issue was disclosure of payroll records from third-party contractors
that entered into contracts with the Commonwealth for public projects. The records
contained the employees’ names, Social Security numbers, home addresses, rates of
pay, gross earnings, hours worked, deductions for taxes or benefits, and net pay
amounts. We adopted the agency’s reasoning that “[w]hen coupled with the other
information in the payroll records concerning their wages and employment, the
home addresses of employees constitute ‘other information relating to an
individual’s personal finances.’” Id. at 942. Therefore, we concluded that the names
and addresses were likewise personal financial information subject to redaction. Id.
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The Majority concludes that the Donor Spreadsheet at issue here includes
personal financial information, such as donor names and addresses, similar to the
DCNR case. However, unlike DCNR, here, the names and addresses of the donors
are not “coupled with” other sensitive, private, financial information. Besides names
and addresses, the Donor Spreadsheet contains check dates, check numbers, and
amounts, which are more innocuous. This information does not disclose anything
about an individual’s personal finances, like someone’s hourly rate, deduction, or
net pay does. Without something more, I cannot conclude that the information in
the Donor Spreadsheet is “personal financial information” subject to redaction.
For this reason, I would conclude that the Donor Spreadsheet is not
necessarily protected from disclosure, but, because names and addresses of donors
are requested, an additional analysis under Pennsylvania State Education
Association ex rel. Wilson v. Department of Community and Economic Development
148 A.3d 142 (Pa. 2016) (PSEA III), is required to balance the individual donors’
right of privacy against the public’s interest in disclosure. Because the record was
developed before the Supreme Court enunciated the balancing test in PSEA III, I
would remand to the Court of Common Pleas of Dauphin County (common pleas)
so that a record can be developed that will allow for the donors’ right to privacy to
be balanced against the public’s right to know.2 If the information requested is
protected by the donors’ right to privacy, it should not be disclosed. But, otherwise,
we should not judicially expand an exception to the RTKL, which has the goal of
2
Upon remand, I would also direct common pleas to address whether the City produced
all records responsive to the RTKL request because the sworn attestation submitted to OOR
contains no specifics about which City files were examined, how the search for responsive records
was conducted, or with whom the solicitor or records office inquired in their search for responsive
documents.
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ensuring transparency in government, particularly where financial information of a
government agency is involved.
In conclusion, the Majority opinion has the effect of both narrowing the
meaning of financial record while expanding the donor exception although we have
held that “exemptions from disclosure must be narrowly construed.” Bowling v.
Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d by 75 A.3d
453 (Pa. 2013). This is because “the [RTKL] is remedial legislation designed to
promote access to official government information in order to prohibit secrets,
scrutinize the actions of public officials, and make public officials accountable for
their actions.” Id. The Majority opinion constrains the public’s ability to see the
source of public funds. For these reasons, respectfully, I would reverse the
September 24, 2015 Order and remand to common pleas for further proceedings.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge McCullough joins in this dissenting opinion.
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