City of Harrisburg v. Joshua Prince, Esq.
No. 1982 C.D. 2015
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
May 10, 2018
Argued: June 7, 2017
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,
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:
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
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. 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
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 third parties notice pursuant to
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
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
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
In his cross-petition for review, Requester argued, inter alia, that OOR erred as a matter of law, and that the City still has
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
I.
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
The City counters that the trial court did not err in reversing OOR‘s determination because the donor information is protected under
In interpreting the RTKL, we are guided by the well-recognized principles of statutory construction. Pursuant to
Under
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.
Relevant to the Request herein,
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-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 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
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 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 . . . .”
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,
In reversing the OOR determinations and applying the personal financial exemption of
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 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
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,
Indeed, the trial court‘s review of OOR‘s Final Determination pursuant to
[A] full reading of the RTKL evidences a legislative intent that the Chapter 13 courts must necessarily expand the 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
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 “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 ....”
[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 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 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,
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 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
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 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.
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
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
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,
Accordingly, the trial court‘s order is affirmed.
MICHAEL H. WOJCIK, Judge
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
DISSENTING OPINION BY JUDGE
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:
(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.
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:
[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:
* * *
(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.
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).”
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),
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
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
RENÉE COHN JUBELIRER, Judge
Judge McCullough joins in this dissenting opinion.
Notes
(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.
In turn,
(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).
(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 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.
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(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.
(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.
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 is able to be redacted. Information which an agency redacts in accordance with this subsection shall be deemed a denial under Chapter 9.
(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.
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.
7. In response to separate [RTKL] requests from the McShane Firm and [Requester], the City provided a list of donors to the fund, with redacted names, addresses, and phone numbers of individual donors for the legal defense fund, but providing the amounts of the donations.
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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.