Mergenthaler v. Commonwealth , 33 Pa. Commw. 237 ( 1977 )

Dissenting Opinion by

Judge Menoer:

I respectfully dissent. The appellant here seeks only two items of information from the State Employes’ Retirement Board. He seeks (1) the names of retirees and (2) the addresses of retirees. Unlike the plaintiffs in McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971), and its progeny cases, he does not seek any information relative to the disbursement of funds by any agency of the Commonwealth.

Appellant asserts Ms right to the information sought on the basis that a record of names and addresses of state retirees is a public record as defined in Section 1 of the so-called Right-to-Know Law, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §66.1 (2):

(2) ‘Public Record.’ Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term ‘public records’ shall not mean any report, communication or other paper; the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, •except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person’s reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

A list of the names and addresses of any group of persons is simply not encompassed by the definition of “public record” and, accordingly, appellant is not entitled to such information under the provisions of the Right-to-Know Law.¹

It has been the disbursement of public funds that has undergirded the decisions in this area,² with the exception of two cases, Friedman v. Fumo, 9 Pa. Commonwealth Ct. 609, 309 A.2d 75 (1973), and Young v. Armstrong School District, 21 Pa. Commonwealth Ct. 203, 344 A.2d 738 (1975), which I now believe were incorrectly decided.

In Friedman v. Fumo, we permitted the inspection and copying of the list of persons who had taken the Department of State’s examination for qualification as a certified public accountant. We did so on the reasoning that the Supreme Court, in McMullan v. Wohlgemuth, supra note 2, had concluded that the general definition of “public record” in the Right-to-Know Law was broad enough to encompass the records there sought, and we could perceive no distinction between the records of names of persons on welfare and lists of names of persons who have taken accountancy examinations. However, it seems to me that the distinction we overlooked was that in McMullan more was sought than a list of names of persons on welfare, namely, the respective amounts of public assistance disbursed from public funds, and it was this vital aspect of disbursement of public funds that qualified the information sought as a public record as that term has been defined by the Legislature.

After having decided Friedman v. Fumo, supra, it was quite understandable that we followed its holding in permitting access to a list of the kindergarten pupils enrolled in the Armstrong School District. Young v. Armstrong School District, 21 Pa. Commonwealth Ct. 203, 344 A.2d 738 (1975). However, “just because a path is well beaten is no proof it’s the right one.”³

In West Shore School District v. Homick, 23 Pa. Commonwealth Ct. 615, 353 A.2d 93 (1976), we carefully analyzed the definition of “public record” and, in the words of the dissenters, “depart [ed] from the inclusive concept of ‘public record’ which we have applied in Friedman v. Fumo, 9 Pa. Commonwealth Ct. 609, 309 A.2d 75 (1973) and again more recently in Young v. Armstrong School District, 21 Pa. Commonwealth Ct. 203, 344 A.2d 738 (1975).”

I hold to the view that we should continue to adhere to the definition of “public record” which the Legislature placed in the Right-to-Know Law and “depart from the inclusive concept of ‘public record’ which we have applied in [Friedman and Young].”

Therefore, I file this dissent since I am now of the view that a list of names and addresses does not constitute a public record and the adjudication of the State Employes’ Retirement Board refusing access to such information should be affirmed.

Opinion by

Judge Wilkinson, Jr.

following reargument, January 25, 1978:

This matter was before our Court on March 10, 1977 with a decision and order, dated April 25, 1977, as follows:

Now, April 25, 1977, the adjudication of the State Retirement Board, dated April 7, 1976, refusing Fred Mergenthaler access to a list of retirees in order to copy such list is modified and the Board is hereby ordered to allow Fred Mergenthaler access to minutes of the Board meetings to obtain tbe names of retirees and to tbe files of retirees in order to obtain tbeir addresses. Should it become necessary to remove confidential data from the files, this shall be done by the Board, at the expense of appellant, prior to the allowance of access to these files.

The opinion, together with a dissenting opinion by Judge Mencer, is reported in 33 Pa. Commonwealth Ct. 237, 372 A.2d 944 (1977). Cross-motions for re-argument were granted and the case is before us for reconsideration having been re-argued.

We find no reason to modify our opinion or order as previously filed.

Accordingly, we enter the following

Order

Now, January 25, 1978, the order of this Court, entered April 25, 1977, in the above matter is confirmed.

1 65 P.S. §§66.1-.4.

2 McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973); Moak v. Philadelphia Newspapers, Inc., 18 Pa. Commonwealth Ct. 599, 336 A.2d 920 (1975); Kanzelmeyer v. Eger, 16 Pa. Commonwealth Ct. 495, 329 A.2d 307 (1974).

3 Salada Tag Lines.