J.D. Grine v. County of Centre, The McShane Firm, LLC and T.C. Tanski Appeal of: County of Centre K. Gillette-Walker v. County of Centre, Shubin Law Office, P.C., and S.P. McGraw Appeal of: County of Centre

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan D. Grine :
:
v. : No. 854 C.D. 2015
:
County of Centre, :
The McShane Firm, LLC :
and Theodore C. Tanski :
:
Appeal of: County of Centre :
Kelley Gillette-Walker :
:
v. : No. 855 C.D. 2015
: Argued: February 10, 2016
County of Centre, :
Shubin Law Office, P.C., :
and Sean P. McGraw :
:
Appeal of: County of Centre :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY JUDGE SIMPSON FILED: April 13, 2016
In these consolidated appeals, the County of Centre (County) appeals
from the orders of the Court of Common Pleas of Centre County (trial court)1
granting preliminary injunctive relief to Judge Jonathan D. Grine (Grine) and
1
The Honorable Stewart Kurtz, a Senior Judge with the Huntingdon County Court of
Common Pleas, specially presided.
Magisterial District Judge (MDJ) Kelley Gillette-Walker (Gillette-Walker),
(collectively, the Judges). Specifically, the trial court enjoined the County from
responding to requests submitted under the Right-to-Know Law (RTKL)2 for
“judicial records.” It further directed the County to refer any requests for judicial
records to the open records officer designated by the relevant judicial agency. The
County argues the injunction precludes it from fulfilling its statutory duty under the
RTKL. It contends the records at issue are public regardless of which agency
receives the request. Upon review, we affirm the trial court’s orders with
modification.
I. Background
The Judges filed complaints seeking declaratory and injunctive relief to
enjoin the County from responding to RTKL requests for “judicial records” related
to their activities. The trial court sealed the pleadings and issued special injunctions.
The litigation stems from the County’s response to prior RTKL
requests implicating cell phone usage by members of the unified judicial system and
District Attorney Stacy Parks Miller (DA Miller). As to Gillette-Walker, the request
sought “records of all telephone calls, text messages, instant messages, email …
and/or any other form of electronic communication;” as to Grine, the request sought
“all to and from cell phone/call records[,] and to and from text messages from [DA
Miller and/or an assistant DA] and [Grine].” Reproduced Record (R.R.) at 85a,
87a (collectively, the “Prior Requests”).
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2
Because the County paid the cellular telephone bills for the Judges’
usage, and the County contracted with Verizon to provide cellular service, the
requests were directed to the County Open Records Officer. The County had
access to records, including invoices that contained usage of cellular phone
services by the Judges (Phone Records). The Phone Records identified telephone
numbers of callers and recipients of calls. The County responded to the Prior
Requests without notifying the Judges or the trial court’s open records officer. In
granting access, the County released parts of the Judges’ telephone numbers, and it
created a color-coded spreadsheet that tracked cell phone usage between DA Miller
and the Judges. Although the response disclosed communications occurred
between DA Miller’s telephone number and the Judges’ numbers, the response did
not reveal the content of the communications. The response also did not contain
the cost of cellular services or include any dollar amounts.
In April 2015, the trial court consolidated the cases for a hearing on
the preliminary injunctions. The County presented evidence establishing the
following facts. The County contracted with Verizon for a bulk plan allowing for a
reduced rate for wireless service. Under the plan, the County purchased minutes
that it then distributed to various departments and individuals, including the trial
court. Certain members of the judiciary, including Grine, used the County-paid
plan. Gillette-Walker did not use the County-paid plan; she used her personal cell
phone.
3
Relevant here, Grine testified regarding the Court’s policy for handling
RTKL requests. R.R. at 113a-14a. Any requests for records of a judicial agency are
governed by Pennsylvania Rule of Judicial Administration (Pa. R.J.A.) 509. Id.
Ultimately, the trial court granted preliminary injunctive relief to the
Judges. Specifically, the trial court “enjoined [the County] from making any
response to any request made pursuant to the [RTKL] for judicial records relating to
[Grine or Gillette-Walker]. The [County] shall direct any request received to the
[Prothonotary or the District Court Administrator] for a response.” Notice of Appeal,
(Dkt. No. 854 2015), Ex. A; Notice of Appeal, (Dkt. No. 855 C.D. 2015), Ex. A.
In its initial opinion, the trial court held the Judges met the criteria for
a preliminary injunction. It reasoned that records relating to activities of the Judges
pertain to a judicial agency. Under the separation of powers doctrine, the County
lacked jurisdiction to release the Phone Records. Tr. Ct., Slip Op., 5/7/15, at 9-10.
The County filed two appeals, one as to Grine and one as to Gillette-
Walker. In response to the County’s concise statement of the errors complained of
on appeal, the trial court supplemented its opinion under Pa. R.A.P. 1925(a).
Therein, the trial court emphasized it “did not pay attention to” the County’s
argument that the Phone Records were “of the [C]ounty … and financial records
and thus public records under the RTKL.” Tr. Ct., Slip Op., 6/26/15 at 6.
This Court consolidated the County’s two appeals as to the Judges.
However, we denied the County’s motion to consolidate this matter with the appeals
4
involving records of DA Miller, docketed at Nos. 856 C.D. 2015 and 857 C.D. 2015.
The Administrative Office of Pennsylvania Courts filed a friend-of-the-court brief
aligned with the Judges. After briefing and oral argument, the matter is ready for
disposition.
II. Discussion
On appeal,3 the County argues the preliminary injunction precludes it
from providing the County’s financial records, which are public as a matter of law.
Essentially, the County contends there is no violation of a clear right necessitating
a preliminary injunction because the Phone Records are public financial records.
The Judges counter that the trial court did not abuse its discretion in
granting injunctive relief. The preliminary injunction ensures the County complies
with the RTKL by directing any requests for records of the judiciary to the open
records officer designated for the appropriate judicial agency. The Judges assert the
Phone Records reflect communications of personnel of the unified judicial system,
and they are not County records. As a result, the County violated the separation of
powers doctrine by exercising control over records of the judiciary and responding
to the Prior Requests.
This consolidated appeal underscores the dilemma agencies face when
a RTKL request seeks records that document an activity of more than one agency.
3
Appellate “review of a trial court’s order granting … preliminary injunctive relief is
‘highly deferential.’” Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004) (citation omitted). “[I]n
reviewing the [order], an appellate court is directed to ‘examine the record to determine if there
were any apparently reasonable grounds for the action of the court below.’” Id. (emphasis added).
5
The Phone Records document the County’s payment for services as well as the
Judges’ use of services. The Judges do not dispute that financial records of a
judicial agency are public.4 Their concern lies with maintaining control over
records of a judicial agency when they are in another branch’s possession.
A. Preliminary Injunction Standard
Our review of the trial court’s orders “is limited to determining
whether the trial court abused its discretion.” Com. ex rel. Corbett v. Snyder, 977
A.2d 28, 41 (Pa. Cmwlth. 2009) (citing Summit Towne Centre v. Shoe Show of
Rocky Mount, Inc., 828 A.2d 995 (Pa. 2003)). “An abuse of discretion is not
merely an error in judgment … [r]ather, 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.”
Id. “If the record supports the trial court’s reasons and factual basis, the court did
not abuse its discretion.” Id. (citing Ambrogi v. Reber, 932 A.2d 969 (Pa. Super.
2007)). We also review the facts in the light most favorable to the party who
prevailed at the trial court level. Snyder.
4
At the outset, we emphasize that access to financial records of the Unified Judicial
System is governed by Rule 509 of the Pennsylvania Rules of Judicial Administration. Pa.R.J.A.
No. 509. The parties here do not ask us to distinguish between the provisions of that Rule and
the very similar provisions of the RTKL which on their face refer to judicial agencies. We
decline to embark on that journey uninvited. Similarly, we decline to explore on our own motion
the interplay between the Rule and the RTKL statute. Instead, we will confine our analysis to
the arguments raised by the parties, which refer almost exclusively to the RTKL.
6
A party must establish the following to obtain a preliminary
injunction:5
(1) necessity to prevent immediate and irreparable harm that
cannot be adequately compensated by damages;
(2) greater injury would result from refusing an injunction
than from granting it;
(3) an injunction will properly restore the parties to their status
as it existed prior to the alleged wrongful conduct;
(4) the right to relief is clear, and that the wrong is manifest,
and success on the merits is likely;
(5) the injunction is reasonably suited to abate the offending
activity; and,
(6) an injunction will not adversely affect the public interest.
Lutz v. City of Phila., 6 A.3d 669, 673 (Pa. Cmwlth. 2010); Greater Nanticoke Area
Educ. Ass’n v. Greater Nanticoke Area Sch. Dist., 938 A.2d 1177, 1184 (Pa.
Cmwlth. 2007) (citing Warehime v. Warehime, 860 A.2d 41 (Pa. 2004)).
“Only if it is plain that no grounds exist to support the decree or that
the rule of law relied upon was palpably erroneous or misapplied will we interfere
with the decision of the [trial court].” Lutz, 6 A.3d at 673 (quoting Lee Publ’ns, Inc.
v. Dickinson Sch. of Law, 848 A.2d 178, 183 (Pa. Cmwlth. 2004)). With these
5
The County characterizes the injunction as mandatory because the trial court required
the County to refer RTKL requests to the proper judicial agency. Requiring compliance with a
statute does not transform a preliminary injunction into a mandatory one. See Patriot-News Co.
v. Empowerment Team of Harrisburg Sch. Dist. Members, 763 A.2d 539 (Pa. Cmwlth. 2000).
7
principles in mind, we assess the trial court’s conclusion that the Judges established
the prerequisites for a preliminary injunction.
1. Clear Right
The Judges frame their right to relief in terms of compliance with the
RTKL and preserving the judiciary’s control over its records. In analyzing the
clear right to relief element, we consider two aspects of the RTKL: (1) the
substance or nature of a record; and, (2) the procedure or means of accessing a
record.
a. Record “of” an Agency; Substance of Record
The RTKL increased access from its predecessor statute6 not only as
to the types of records, but also by expanding the types of agencies subject to its
terms. In addition to the Commonwealth and local agencies historically subject to
open records laws, the current RTKL permits access to certain records of
legislative agencies and judicial agencies. The RTKL offers the most limited
access to records of a judicial agency.
Pursuant to the RTKL, a “judicial agency” is defined as, “[a] court of
the Commonwealth or any other entity or office of the unified judicial system.”
Section 102 of the RTKL, 65 P.S. §67.102. As members of the judiciary, the Judges
are part of a judicial agency. By contrast, the County qualifies as a local agency
under the RTKL.
6
Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§66.1-66.9, repealed by, Section 3102
of the RTKL, 65 P.S. §67.3102.
8
We hold a record qualifies as “of” an agency when that record
“documents a transaction or activity of the agency.” Allegheny Cnty. Dep’t of
Admin. Servs. v. A Second Chance, Inc. (ASCI), 13 A.3d 1025, 1034-35 (Pa.
Cmwlth. 2011) (en banc); see Meguerian v. Office of Attorney Gen., 86 A.3d 924(Pa. Cmwlth. 2013). “Documents” means “proves, supports [or] evidences.” ASCI.
Only financial records “of” a judicial agency are subject to the RTKL.
Section 102 of the RTKL defines “financial records” in pertinent part as: “any
account, voucher or contract dealing with: (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 definition of public record
includes financial records. Id. The RTKL does not permit access to non-financial
records of a judicial agency.
At the other end of the spectrum, all records in the possession of
Commonwealth and local agencies are presumed public. Section 305(a) of the
RTKL, 65 P.S. §67.305(a). Pursuant to the presumption of openness,
Commonwealth and local agencies are required to provide access to any record to
which an exemption does not apply. Section 701 of the RTKL, 65 P.S. §67.701.
Section 102 of the RTKL defines the term “record” broadly as: “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….” 65 P.S.
§67.102 (emphasis added).
9
In discerning whether records qualify as records “of” a particular
agency, we consider the subject-matter of the records. Meguerian; see also Office
of Atty. Gen. v. Phila. Inquirer, 127 A.3d 57, 63 (Pa. Cmwlth. 2015) (“For emails
to qualify as records “of” an agency, we only look to see if the subject-matter of
the records relate to the agency’s operations.”). The location of the record or an
agency’s possession does not guarantee that a record is accessible to the public;
rather, the character of the record controls. Easton Area Sch. Dist. v. Baxter, 35
A.3d 1259 (Pa. Cmwlth. 2012). A record does not need to be generated by the
agency receiving a RTKL request to qualify as “of” that agency. Bagwell v. Dep’t
of Educ., 76 A.3d 81 (Pa. Cmwlth. 2013).
In arguing that the records at issue are not “of” the judiciary, the
County emphasizes the records must relate to “an exercise of judicial authority.”
Appellant’s Br. at 28. Repeatedly, the County claims that in order to qualify as
records of a judicial agency, their content must be “judicial in nature.” Id. at 33.
There is no legal basis for defining the limitation that way. Rather, we evaluate
whether a record documents an agency’s activity or operations. Here, the activity
is use of cellular phone services. The Prior Requests sought records that showed
the use of cellular phones by and between DA Miller and the Judges. Responsive
records would include the records showing the billing and payment of invoices for
cellular phone services.
The County contends that as the agency that pays the invoices for the
use of services, it is the sole agency whose activities are documented by responsive
10
records. Some cases decided under the predecessor to the RTKL relate to this
contention. But, after closer examination, those decisions do not control the
current controversy.
The RTKL is designed to afford greater access than its predecessor,
resulting in “a dramatic expansion of the public’s access to government
documents.” Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013). Nevertheless,
cases decided under the predecessor statute remain relevant to analyzing the
RTKL. Thus, citing cases decided under the predecessor statute, our Supreme
Court recently construed the term “financial records” to reach any records “dealing
with” the disbursement of agency funds. Eiseman v. Dep’t of Pub. Welfare, 125
A.3d 19 (Pa. 2015).
Under the predecessor statute, this Court held itemized cellular
telephone bills met the definition of public record as “accounts or vouchers and the
use of public equipment and funds.” PG Publ’g Co. v. Cnty. of Washington, 638
A.2d 422 (Pa. Cmwlth. 1994); see also Tribune-Review Publ’g Co. v. Bodack, 875
A.2d 402, 405 (Pa. Cmwlth. 2005), aff’d, 961 A.2d 110 (Pa. 2008) (itemized cell
phones are public records when the detail shows “how the total amount is arrived
at[.]”). Significantly, that part of the definition of public record under the
predecessor statute is virtually identical to the definition of “financial record” in
the current RTKL.
Indeed, in PG Publishing, this Court held records documenting a
county’s payment of telephone bills were public records. Relevant here, we also
11
held the itemized cell phone bills were records the paying county had a duty to
disclose. See PG Publ’g, 638 A.2d at 426 (holding “all bills or statements which
contain an itemization regarding how the total amount is arrived at is an integral
part of the final bill without which payment would probably not be made.”).
In Bodack, similar to the Prior Requests, the request under the
predecessor statute sought cell phone records of public officials. Also akin to the
Prior Requests, the requester sought identifiers of callers and recipients, i.e.,
telephone numbers of incoming and outgoing calls. The City of Pittsburgh initially
paid the phone bills, but the officials subsequently reimbursed the City. We held
the officials’ reimbursement did not negate the disbursement of public funds,
which rendered the records public. Again, we held the City had a duty to disclose.
Critically, however, the County’s reliance on these cases is selective.
Although both cases support the proposition that an agency must disclose records
documenting payment of phone bills, the County disregards that the records at
issue in those cases did not reveal activities of the judiciary or any other agency.
Further, the County does not acknowledge the redactions from the
records in Bodack. Regarding the telephone numbers contained in responsive
records, the Bodack Court held the callers and recipients of calls had an
expectation of privacy in their personal telephone numbers. That information
12
placed the individual’s identity at risk for identity theft. As a result, we held the
telephone numbers must be redacted from any records disclosed.7
Our reasoning in Bodack to protect caller identifiers is consistent with
our case law construing the current RTKL. In Office of the Governor v. Raffle, 65
A.3d 1105 (Pa. Cmwlth. 2013) (en banc), we held government-issued cellular
telephone numbers of agency employees are “personal identification information”
under Section 708(b)(6)(i)(A) of the RTKL. That subsection protects:
(A) A record containing all or part of a person’s Social
Security number; driver’s license number; personal
financial information; home, cellular or personal
telephone numbers; personal e-mail addresses; employee
number or other confidential personal identification
number.
65 P.S. §67.708(b)(6)(i)(A) (emphasis added). That the agency issued the
telephones and paid for cellular service did not alter our conclusion that telephone
numbers assigned to specific agency employees constituted personal identifiers.
As a result, telephone numbers were properly redacted from responsive records.
These cases teach us that records of an agency’s usage of cellular
phone services are financial records to the extent they contain information dealing
with the disbursement of agency funds.8 Nevertheless, we reject the County’s
7
Notably, the predecessor statute lacked an exception that protected cellular or personal
telephone numbers as in Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A).
8
The County did not have a duty to disclose the identifiers of callers or recipients. Office
of the Governor v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013) (en banc); Tribune-Review Publ’g
Co. v. Bodack, 875 A.2d 402 (Pa. Cmwlth. 2005), aff’d, 961 A.2d 110 (Pa. 2008). The County
(Footnote continued on next page…)
13
argument that records showing DA Miller’s use of cellular phone services
constitute a financial record solely of the County.
Here, the Phone Records involve the usage of cellular phone services
by the Judges. The County concedes the records document the Judges’ activities in
that they reveal their identities as the caller or recipient. See Appellant’s Br. at 22.
However, to some extent the Phone Records also document the County’s payment
of Verizon invoices for service. As such, the Phone Records are simultaneously
“of” the judicial agency and “of” the County.
b. Separation of Powers; Procedures for Access
The dual status of the records as documenting activities of the County
and of the judicial agency is central to this dispute. The RTKL affords different
levels of access to any non-exempt records of a local agency, such as the County,
but it allows access only to financial records of a judicial agency. Adding to the
complexity, the trial court enjoined the County from responding to requests for
“judicial records,” a term which is not defined in the RTKL. For clarity9 and
(continued…)
may discharge its duty to disclose financial records by providing redacted records. Section 706
of the RTKL, 65 P.S. §67.706. Although the County explains the duration of calls relates to the
amount of the invoices, the County does not connect the identities of callers or recipients to the
cost of services.
9
Also, our courts often use the term “judicial records” when discussing the openness of
the courts and records to which a common law right of access attaches. Com. v. Upshur, 924
A.2d 642 (Pa. 2007); Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954 (Pa. Super. 1989).
14
consistency with RTKL terminology, we recast this phrase as “records of a judicial
agency.”
i. Lackawanna County CCP
We previously addressed a conflict involving a request for records to
which a county and a judicial agency shared access in Court of Common Pleas of
Lackawanna Cnty. v. Office of Open Records (Lackawanna County CCP), 2 A.3d
810 (Pa. Cmwlth. 2010). There, the Administrative Office of Pennsylvania Courts
(AOPC) filed an action in our original jurisdiction premised on a violation of the
separation of powers doctrine.10
AOPC sought a declaration that the Office of Open Records (OOR)
lacked jurisdiction over a RTKL appeal pertaining to records of a judicial
employee.11 AOPC argued Lackawanna County could not be ordered to respond to
the RTKL request despite its access to responsive records on county-provided
computers. Ultimately, we concluded that Lackawanna County’s possession of the
records did not alter that the records pertained to activities of a judicial employee.
Relevant here, we held “any record produced by a judicial employee is a record of
a judicial agency.” Id. at 813.
To preserve the separation of powers, a requester was unable to access
records of activities of a judicial employee by seeking the records through a county.
Id. Allowing another agency to direct a judicial employee violated the separation
10
PA. CONST. art. 5, §10 (providing the Supreme Court’s general supervisory authority).
11
The employee who sent or received the emails requested was a judicial employee under
the Judicial Code as “staff assigned to the domestic relations office.” 42 Pa. C.S. §961.
15
of powers because it interfered with the judiciary’s oversight and supervision of
judicial employees. The trial court applied the same rationale here.
The trial court here reasoned that records relating to activities of the
Judges pertained to members of the unified judicial system. Such activities are
under the exclusive oversight of our Supreme Court. Following Lackawanna
County CCP, the trial court concluded records documenting the Judges’ use of cell
phone services were not accessible through the County. In so doing, the trial court
did not err or abuse its discretion.
The County attempts to distinguish Lackawanna County CCP because
that case involved the content of communications of a judicial employee, and
content is not at issue here. However, our holding that records of a judicial
employee are records of a judicial agency, and so beyond OOR’s jurisdiction, did
not depend on the content of the records. Our rationale was based on the need for
the judiciary to retain supervisory control over its personnel.
ii. Assertion of No Harm
Nevertheless, we consider the County’s assertion that the allegedly
innocuous content of the records requested is material to whether the County
retains a duty of disclosure under the RTKL. In essence, because the RTKL
mandates access to financial records of a judicial agency, the County contends
there is no harm in the County responding to a request for financial records that are
both of a judicial agency and of the County. See Appellant’s Br. at 46 (“Telephone
billing records are financial records that are required to be disclosed under the
16
RTKL, regardless of whether they are determined to be records ‘of’ the judiciary
or the County.”). We respectfully disagree, based on our analysis of the distinctive
procedures access.
The public nature of a record, relating to content, is distinct from
public access. Ali v. Phila. City Planning Comm’n, 125 A.3d 92 (Pa. Cmwlth.
2015) (explaining public nature of a record, related to content, under Section 306 of
the RTKL, 65 P.S. §67.306, is distinct from public access under Section 3101.1 of
the RTKL, 65 P.S. §67.3101.1). The procedure for handling requests and appeals
depends on the type of agency. See generally Sections 503, 701, 1101 and 1102 of
the RTKL, 65 P.S. §§67.503, 67.701, 67.1101, 67.1102. Stated differently, even
when the same record, like a financial record, is requested under the RTKL from
two different types of agencies, the process for access may follow different paths.
iii. Differences in Process for Access
The RTKL allows each type of agency to develop its own policies and
regulations for handling requests. Section 504(a) of the RTKL, 65 P.S. §67.504(a).
Specifically, Section 504(a) of the RTKL provides, “[a]n agency may promulgate
regulations and policies necessary for the agency to implement [the RTKL]. The
[OOR] may promulgate regulations relating to appeals involving a Commonwealth
agency or local agency.” Id. Such policies may be necessary to fill statutory gaps.
See, e.g., Pa. State Educ. Ass’n v. Dep’t of Cmty. & Econ. Dev. (PSEA), 110 A.3d
1076 (Pa. Cmwlth. 2015) (en banc), appeal filed, (Pa., No. 22 MAP 2015, filed
March 24, 2015) (providing due process for third-party subjects of records to
object to disclosure to uphold statutory scheme).
17
However, only the Supreme Court is empowered to adopt procedural
rules pertaining to judicial agencies. 42 Pa. C.S. §1722 (the Supreme Court may
adopt procedural rules involving “the administration of all courts and the
supervision of all officers of the judicial branch ….”). As permitted by Section
504(a) of the RTKL, our Supreme Court adopted Pa. R.J.A. 509 which governs
responses to RTKL requests directed to judicial agencies. R.R. at 113a; see also
Grine Ex. No. 7. Rule 509 provides uniformity and consistency among responding
judicial agencies. Further, the memorandum accompanying Rule 509 states
“access to financial records … of the unified judicial system shall be provided in
accordance with Pa. R.J.A. 509.” Id.
A judicial agency that receives a request for financial records has a
duty to provide access to them in accordance with the law. Indeed, the Judges do
not contest that cell phone records in the format produced by Verizon are financial
records that are subject to disclosure. Still, that does not end the inquiry.
Judicial agencies may review requests to discern whether the
requested records qualify as financial records that are subject to disclosure. By
contrast, a local agency must presume the requested record is public and respond
knowing it bears the burden of proving an exemption applies. The presumption
does not apply to a judicial agency until it is established that the record meets the
definition for financial records. Section 305(b) of the RTKL, 65 P.S. §67.305(b).
These different approaches may lead to substantively different responses to the
same RTKL request.
18
Other provisions in the RTKL also allow an agency to exercise
discretion in responding to a request. For example, Section 506(c) of the RTKL
authorizes agencies to exercise their discretion “to make any otherwise exempt
record accessible for inspection and copying.” 65 P.S. §67.506(c). The RTKL
precludes such discretionary disclosure only if disclosure is prohibited by another
law, judicial order, or the record is privileged. When no such prohibition exists,
the “agency head” may provide for disclosure if he or she “determines that the
public interest favoring access outweighs any individual, agency or public interest
that may favor restriction of access.” Id. Thus, an agency may release certain
records or parts of records in its discretion, resulting in varied responses.
Also, an agency may create a record in order to ease review of
requested information. See Section 705 of the RTKL, 65 P.S. §67.705. Further, an
agency may redact protected information from a record and disclose the public
portions. Section 706 of the RTKL, 65 P.S. §67.706. These options in
implementing the RTKL illustrate the importance of directing a RTKL request to a
concerned agency.
Here, the County did not disclose its contract with Verizon for cellular
phone services. It also did not disclose the pertinent pages of the 500-plus page
detailed Verizon invoice corresponding to Judge Grine. Rather, it created a color-
coded spreadsheet showing calls between the Judges and the DA’s office. Each
color corresponded to a different individual, one of the Judges or DA Miller and
her staff.
19
Further, the County did not redact the Judges’ telephone numbers in
their entirety. It chose to release information that exceeded financial parameters of
an itemized cell phone bill. Bodack. The records disclosed did not contain content
of communications, but they also did not contain any indication of cost or other
financial information.
Had the Phone Records solely been records “of” the County, the
County would have been authorized to create a record (Section 705) and
selectively redact the records disclosed (Sections 706 and 506(c)). However, the
Phone Records showing usage of services by the Judges are also of the judicial
agency. As a result, the County misapplied the RTKL in responding.
Of special significance, the RTKL also sets forth a separate appeals
process for each branch of government. An appeal from a judicial agency is
addressed by an appeals officer designated by the judicial agency. Section 503(b)
of the RTKL, 65 P.S. §67.503(b). As to local agencies like the County, the RTKL
confers jurisdiction on appeals officers within OOR to render determinations
regarding records disputes. Section 503(a) of the RTKL, 65 P.S. §67.503(a).
However, OOR lacks jurisdiction over appeals involving records of a judicial
agency. Faulk v. Office of Open Records, 116 A.3d 1183 (Pa. Cmwlth. 2015).
Indeed, allowing OOR to direct an agency to disclose a record showing activities of
a judicial agency violates the separation of powers. Lackawanna County CCP.
Accordingly, for the County to respond to a request for records of a judicial agency
would implicate an additional separation of powers issue in the appeal. Id.20
iv. Summary
In short, based on the options available to responding agencies, and
the different procedures and presumptions that apply, the type of agency to which a
RTKL request is directed matters. The County thus ignores the critical role the
type of agency plays in handling RTKL requests and the resulting disclosure.
Moreover, the RTKL provides a mechanism for redirecting requests to
an appropriate agency. Pursuant to Section 502(b) of the RTKL, an open records
officer “shall receive requests submitted to the agency under [the RTKL], direct
requests to other appropriate persons within the agency or to appropriate persons in
another agency” when responding to RTKL requests. 65 P.S. §67.502(b)
(emphasis added). The RTKL thus mandates an open records officer direct a
request to another agency when records are “of” another agency.
Considering the foregoing, the Judges established a clear right to
relief to ensure the judiciary retains control over records showing the activities of
uniform judicial system personnel. The trial court did not err in determining the
County’s Open Records Officer, who knew the Phone Records pertained to the
judiciary, was required to direct the request to the open records officer designated
by the judicial agency for a response pursuant to Section 502(b) of the RTKL.
21
To avoid a potential separation of powers violation, the trial court
properly enjoined the County from responding to requests for records “of” a
judicial agency. Regardless of whether responsive records are simultaneously of a
county and of a judicial agency, a county must defer to the judicial agency for a
response. Here, because the Phone Records document activities of judicial
personnel, which was clear on the face of the Prior Requests, the RTKL mandates
the County Open Records Officer direct the request to the appropriate judicial
agency. Lackawanna County CCP.
For these reasons, the trial court did not err in finding the Judges
established a clear right to relief.
2. Irreparable Harm
The harm12 articulated here is a violation of the statutory scheme in
the RTKL and a potential violation of the separation of powers. Further, both
Judges voiced concerns that the County’s continued provision of access to records
of their activities compromises the judiciary’s record management. R.R. at 113a-
17a.
Courts of this Commonwealth have the inherent right and power to
supervise or discharge personnel and that power may not, consistent with the
constitutional doctrine of separation of powers, be policed, encroached upon or
12
On the point of harm, we note a factual distinction between MDJ Gillette-Walker’s and
Judge Grine’s cases. Judge Grine’s phone usage is documented in a record that is shared
between the County and the Court. However, MDJ Gillette-Walker is not a user of the County
plan. As a result, she does not appear on the Verizon invoices.
22
diminished by another branch of government. See L.J.S. v. State Ethics Comm’n,
744 A.2d 798 (Pa. Cmwlth. 2000). Moreover, “[e]very court has supervisory
power over its own records and files[.]” Nixon v. Warner Commc’ns, Inc., 435
U.S. 589, 598 (1978).
Deprivation of a statutory right constitutes irreparable harm. Wyland
v. West Shore Sch. Dist., 52 A.3d 572, 583 (Pa. Cmwlth. 2012) (citing Pa. Pub.
Util. Comm’n v. Israel, 52 A.2d 317 (Pa. 1947)); Patriot-News Co. v.
Empowerment Team of Harrisburg Sch. Dist. Members, 763 A.2d 539 (Pa.
Cmwlth. 2000)). Further, an agency’s failure to comply with an open government
statute is sufficiently injurious to constitute irreparable harm. Patriot-News Co.
(granting injunction to prevent violation of Sunshine Act, 65 Pa. C.S. §§ 701–716).
In addition to a violation of the statutory scheme in the RTKL, a
potential separation of powers violation, and interference with the judicial agency’s
power of supervision over its records, the County’s initial disclosure of the color-
coded spreadsheets improperly disclosed partial telephone numbers. Under Raffle,
the Judges’ cell phone numbers are protected from disclosure pursuant to the
personal identification exception. Under Section 708(c) of the RTKL, “an agency
may redact that portion of a financial record protected under subsection …
[(b)(6)].” 65 P.S. §67.708(c). The RTKL “directs agencies to use redaction in
appropriate circumstances,” including to protect personal identifiers. Lutz, 6 A.3d
at 674. This additional problem contributes to our harm analysis.
23
The harm is not speculative because the County received other
requests implicating records of the judiciary. R.R. at 107a. Responses to those
requests are held in abeyance based on the preliminary injunctions here. Id.Because the harm described above is not compensable by damages,
the trial court did not err in holding the Judges showed irreparable harm.
B. Remaining Prerequisites for Preliminary Injunction
Having addressed the clear right and irreparable harm elements, we
consider whether the Judges met the remaining requirements for preliminary
injunctive relief.13
Injunctive relief is appropriate in these circumstances. See, e.g.,
PSEA (holding declaratory judgment and injunctive relief appropriate given
statutory gaps in RTKL as to parties with an interest in non-disclosure of a record);
see also Sapp Roofing Co., Inc. v. Int’l Sheet Metal Workers’ Ass’n, 713 A.2d 627(Pa. 1998) (plurality) (appeal from grant of injunction precluding school district
from disclosing certified payrolls of contractors). An injunction is suitable to
mandate compliance with a statute as in this case. Wyland; Patriot-News.
Likewise, the preliminary injunction, as modified, is tailored to obtain
the desired relief. The injunction assures that requests for records of a judicial
agency are directed to the appropriate judicial agency. The County remains free to
13
Because the County did not brief the other elements, we address them summarily.
24
disclose financial records of the County that are not also records showing activities
of a judicial agency, and thus comply with the RTKL.
We are persuaded that greater injury will result from denial of the
injunction than from granting it. It is clear on the record that the County received
and will continue to receive RTKL requests relating to activities of the judiciary.
R.R. at 107a. Those requests must be directed to the appropriate open records
officer to ensure the judiciary retains control of its records and of the format in
which the records are disclosed.
As the trial court recognized, the injunction does not restore the
parties to the status quo. However, we cannot allow the County to continue to
separately respond to RTKL requests when the records at issue are shared by a
judicial agency. The preliminary injunction properly precludes the County from
continuing to jeopardize the judiciary’s control over its records by responding with
over-inclusive information, which may not be limited to financial records.
III. Conclusion
To avoid a potential separation of powers violation, the County Open
Records Officer shall direct requests for records of a judicial agency to the
designated open records officer for that judicial agency. Accordingly, the trial
court’s entry of a preliminary injunction to that effect is affirmed.
25
The trial court’s order necessitates clarification in that it requires
requests for “judicial records” to be redirected to a judicial agency. We affirm the
trial court’s order with modification to replace the phrase “judicial records” with
the phrase “records of a judicial agency.” We also reinforce the public status of
financial records of a judicial agency.14
ROBERT SIMPSON, Judge
Judge Cohn Jubelirer did not participate in the decision in this case.
14
In stating that “financial records of the judiciary are not included in the definition of
public record,” the trial court erred. Reproduced Record (R.R.) at 94a (Tr. Ct. Memorandum
Op., 5/7/15, at 12). Financial records of the judiciary are public records under the RTKL.
Sections 102 and 305(b) of the RTKL, 65 P.S. §§67.102, 67.305(b). As such, they are subject to
mandatory disclosure by a judicial agency. Section 304(a) of the RTKL, 65 P.S. §67.304(a).
However, the trial court’s erroneous statement of the law was not essential to its conclusion.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan D. Grine :
:
v. : No. 854 C.D. 2015
:
County of Centre, :
The McShane Firm, LLC :
and Theodore C. Tanski :
:
Appeal of: County of Centre :
Kelley Gillette-Walker :
:
v. : No. 855 C.D. 2015
:
County of Centre, :
Shubin Law Office, P.C., :
and Sean P. McGraw :
:
Appeal of: County of Centre :
ORDER
AND NOW, this 13th day of April, 2016, the orders of the Centre
County Court of Common Pleas are hereby AFFIRMED AS MODIFIED, as set
forth in the foregoing opinion.
ROBERT SIMPSON, Judge