LaValle v. Office of General Counsel

COLINS, President Judge.

The present case is an appeal pursuant to what is commonly known as the Right-to-Know Act (Act)¹ filed by Gerald L. LaValle and Richard A. Kasunic (Petitioners), seeking access to certain documents in the possession of the Office of General Counsel.²

In 1993, Envh’otest Partners entered into a contract with DOT to perform centralized automobile emission testing. In November 1994, after suspension of this emissions program by the General Assembly, DOT unilaterally cancelled the contract. As a result, Envirotest commenced a lawsuit in Commonwealth Court and the Board of Claims in May 1995. In preparation for defending the suit, the Office of General Counsel and DOT hired Ernst & Young LLP to prepare a report concerning damages and costs sustained by Envi-rotest. In December 1995, litigation ended and the parties reached a settlement. The Governor was authorized by the General Assembly to use state funds for payment of any settlements and/or court-ordered fines that resulted from legal action related to any DOT contract for centralized emission inspections entered into pri- or to November 16, 1994. After debating the settlement and funding authorization, the General Assembly subsequently authorized the expenditures by enacting Act 1995-72.³

Two years later, in December of 1997 and February of 1998, Senator LaValle and Senator Kasunic asked General Counsel for a copy of the Ernst & Young report. On February 27, 1998, General Counsel refused to provide Senator La-Valle with the report on the grounds that the report was: (1) not a public record; (2) privileged under the work product doctrine; and (3) within the “investigations” exception from disclosure.

On March 30, 1998, LaValle and Kasunic filed a petition for review in Commonwealth Court seeking relief in both the Court’s appellate and original jurisdictions. The Office of General Counsel and DOT filed an application seeking: (1) to quash the petition for improper service; (2) to dismiss the petition under this Court’s original jurisdiction; and (3) to dismiss DOT as a party. Thereafter, LaValle and Kasunic cured the defect in service. On May 15, 1998, Senior Judge Warren G. Morgan of this Court issued an order dismissing DOT as a party and dismissing the petition for review insofar’ as it sought to invoke this Court’s original jurisdiction, leaving only the Right-to-Know appeal from General Counsel’s denial of Petitioners’ request.⁴

The term, “public record,” is defined in Section 1(2) of the Act as follows:

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 or immunities, duties or obligations of any person or group of persons:

Our Supreme Court has observed that there are two distinct categories of “public records” under the Act: (1) accounts, vouchers, or contracts dealing with fiscal aspects of government, and (2) minutes, orders, or decisions fixing the personal or property rights of a person or group of persons. North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037 (1999). The Supreme Court concluded that the first category, i.e., documents “dealing with” the receipt or disbursement of funds, should be broadly construed, whereas the second category, documents “fixing” the rights of persons, was intended to a “somewhat narrower construct.” Id. at 54-55, 722 A.2d at 1038.

Petitioners in the present case argue that the documents fall within the first category, while respondents contend that they do not. In Sapp Roofing Co. v. Sheet Metal Workers’ International, 552 Pa. 105, 713 A.2d 627 (1998), a plurality of the Supreme Court concluded that a private contractor’s payroll records in the possession of a school district for work performed pursuant to a contract with the district constituted a “public record.” The Court reached this conclusion after determining that the records were an “account” dealing with the disbursement of funds by the district.⁵ Justice Saylor, writing for a unanimous Court in North Hills, stated that

Implicit in the Court’s decision in Sapp Roofing is the conclusion that the accounts/vouchers/contracts category of public records reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts. Nevertheless, it is clear from Sapp Roofing that, to constitute a public record, the material at issue must bear a sufficient connection to fiscally related accounts, vouchers or contracts.

555 Pa. at 55, 722 A.2d at 1039.

These recent pronouncements by our Supreme Court are considerably more expansive than this Court’s earlier definition of an “account” as “a record of debit and credit entries to cover transactions during a fiscal period of time and ... not ... a statement of facts or events.” Butera v. Office of the Budget, 29 Pa.Cmwlth. 343, 370 A.2d 1248, 1249 (1977). Since it is now clear that an “account” is to be broadly construed, and need only constitute “records evidencing disbursement,” we must conclude that the Butera definition no longer accurately states the law of this Commonwealth. Accordingly, Butera is overruled to the extent that it conflicts with the recent decisions of our Supreme Court.

The Ernst & Young report did not reflect any actual disbursement of funds by the Commonwealth, but was commissioned for the express purpose of determining the extent of Envirotest’s damages. Clearly, this would not meet the traditional definition of “account” as stated in Butera. The “accounts” category as more recently defined, however, “reaches some range- of records beyond those which on their face constitute actual accounts, vouchers or contracts.” North Hills, 555 Pa. at 55-56, 722 A.2d at 1039. Despite the broader meaning accorded by the Supreme Court, however, the requested material must still “bear a sufficient connection” to fiscally related accounts, Id. at 55, 722 A.2d at 1039, and must “constitute an essential component of an agency decision.” Sapp Roofing, 552 Pa. at 110, 713 A.2d at 629 (citations omitted).

The Ernst & Young report was an audit of the materials submitted to the Commonwealth by Envirotest requesting payment for breach of contract. It was, therefore, in some ways similar to the private contractor’s payroll records at issue in Sapp Roofing, which, pursuant to the Pennsylvania Prevailing Wage Act,⁶ were submitted by the contractor prior to disbursement of final payment on the contract. This similarity alone, however, does not transform the audit into a public record. In Sapp Roofing, regulations implementing the Prevailing Wage Act required the agency to ensure that all wages due to workers by the contractor are paid, and to withhold the amount of unpaid wages from disbursements to the contractor. 552 Pa. at 110, 713 A.2d at 629. Thus, the private contractor’s records were an “essential component” of the agency’s decision, since a mandatory statutory duty could be performed only after a review of those records. In the present case, the Ernst & Young audit was not required by statute or regulation, and the Office of General Counsel was not obliged to act in any way upon the audit. Accordingly, we conclude that the audit, while tangentially relating to disbursements by the Commonwealth, was not an “essential component” of the decision to pay Envirotest and, as such, is not a “public record” under the Right-to-Know Act.⁷

Accordingly, General Counsel’s decision to deny petitioners access to the Ernst & Young audit is AFFIRMED.

ORDER

AND NOW, this 18th day of August, 1999, the decision of the Office of General Counsel of the Commonwealth of Pennsylvania to deny Petitioners’ request for access to the Ernst & Young report is AFFIRMED.

Judge SMITH dissents.

Concurring and dissenting opinion by Judge KELLEY.

1 . Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4.

2 . Petitioners have filed the present action both as individuals and in their capacities as elected members of the Senate of Pennsylvania.

3 . See Section 10 of Act 72, Act of December 20, 1995, P.L. 655, 75 Pa.C.S. § 4706.1.

4 .This Court’s review of decisions rendered under the Right-to-Know Act is limited to determining whether the denial of the request for information was for just and proper cause. Morning Call, Inc. v. Lower Saucon Township, 156 Pa.Cmwlth. 397, 627 A.2d 297 (1993).

5 . Although the decision in Sapp Roofing was a plurality decision, we note that the full Supreme Court in North Hills cited favorably to the reasoning employed in Sapp.

6 . Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1-165-17.

7 . Our conclusion that the requested documents are not "public records” under the Right-to-Know Act precludes access by any "citizen of the Commonwealth of Pennsylvania,” including Petitioners in their individual capacities. While Petitioners also allege that they are duly elected members of the Senate of Pennsylvania, they cite no authority that would accord them greater rights of access than would be accorded to any citizen. We note, however, that both the majority and minority chairpersons of the Senate and House Appropriations Committees have statutory rights to certain "budgetary data” in the possession of the Executive Branch. See Thornburgh v. Lewis, 504 Pa. 206, 470 A.2d 952 (1983); Section 620 of the Administrative Code of 1929, Act of April 9, 1979, P.L. 177, as amended, added by the Act of September 27, 1978, P.L. 775, as amended, 71 P.S. § 240. We express no opinion as to whether the type of information requested here would constitute "other budgetary data” within the meaning of Section 620.