Housing Authority of Pittsburgh v. Van Osdol

OF the AUTHORITY HOUSING PITTSBURGH, OF CITY

Appellant and WTAE-TV.

Paul OSDOL VAN Pennsylvania.

Commonwealth Court

Argued Nov. 2011. March

Decided April Denied

Reargument Mitinger,

Alice B. Pittsburgh, appel- lant. Yuhan, York, NY,

Stephen H. New appellees. LEADBETTER, I. President

BEFORE: SIMPSON, Judge, Judge, following rele- The record reveals McCullough, Judge. Osdol July vant facts. On Van Judge “the Authority provide BY President ad- OPINION asked names for all 8 LEADBETTER.1 dresses and owner Section ... by administered Au- properties Authority City of the Housing (R.R.) at 4a. thority.” Reproduced Record (Authority) appeals from Pittsburgh Program,” 8 also known as The “Section Pleas of of Common order of the Court Program, Housing Choice Voucher statutory dismissing its Allegheny County rental assistance to low-income provides of the Of- from the determination obtaining “in a help families to them de- (OOR) that it must Open Records fice of place “promot[e] cent to live” and to eco- Osdol records to Paul Van certain provide 8(a) nomically housing.” mixed Section (Van Osdol), for WTAE-TV. reporter a Community Housing Development subject- it lacked concluded that The court 1487f(a). § Act of U.S.C. Under the Author- to consider Program, by the Section 8 which is funded Authority named because ity’s appeal caption government in the the federal and administered only OOR as a “defendant” authorities, housing Osdol as an indis- tenants join by public failed to Van local The court appeal. in the pensable party pay portion a lease and of their sign even if there were rent, concluded that further income toward and the remainder of defects, the information re- procedural no by public housing paid the rent is exempt Osdol was not by 1437f(o). Van quested § authorities. U.S.C. 708(b) of access under Section from Authority denied Van Osdol’s re- (Law), Act Law Right-to-Know quest, stating requested informa- P.S. February P.L. exempt tion was from access under 67.708(b). § 708(b)(6)(i)(C) (“[t]he of the Law are asked to decide: In this we of a law officer home enforcement address (1) Authority’s designation of whether the 708(b)(28)(i) (ii)(A) judge”); or join appellee as an Van OOR (a an “identifying record or information (collectively, Van Osdol WTAE-TV and/or receives applies individual who so- Osdol) the trial appeal deprived cial or “the of social ser- services”2 (2) jurisdiction; if court of individual”); received an and Sec- vices not, requested by the information whether 708(b)(30) (“[a] identifying record tion under is from disclosure Van Osdol name, of a home address or date birth 708(b) Law; and, wheth- years age younger”). child relying precluded er the appealed Van Osdol de- denying Van Os- on additional reasons OOR, alleging requested that he its failure to include nial to request dol’s due to only the addresses of Section in written decision. disclosure them its vices, compensation ... services and assigned opinion this writ- workers’ This case was completed her term as President unemployment compensation er before she services.” Sec- Judge January on 102 of the 65 P.S. 67.102. It is tion undisputed under the that the rent subsidies includes benefits, 2. The definition of "social services” Program are cash assistance and Section 8 "[cjash and other welfare assistance meet the definition of "social services.” medical, health care ser- mental and other proper- and the names of such also did not attend the status conference. owners, ty housing subsidy recipients The court permitted Neigh- thereafter children, Legal borhood Allegheny County and that the Services Association and The Fair Housing Authority previously Housing Partnership had dis- of Greater Pittsburgh, nonprofit organization requested pro- closed the identical information moting equal housing opportunities, to him. The file responded that an amicus curiae brief in support of the property disclosure of Section 8 addresses Authority’s appeal. The court also permit- identify partic- would over 6800 households ted Van Osdol WTAE-TV to seek ipating Program the Section 8 and that and/or either intervention or an amicus curiae disclosure of names of Section 8 landlords status thirty days. and to file a brief within County would enable Van Osdol cull the Counsel Van Osdol and WTAE-TV identify real estate records to the house- subsequently filed an amid curiae brief receiving housing holds assistance. Nei- and an “affirmation” with numerous exhib- party requested hearing. ther a its attached thereto. In a final Sep- determination mailed on The trial court Authority’s dismissed the appeals tember OOR’s officer appeal, concluding that it subject- lacked Authority provide directed the the re- because the Authority quested information to Van Osdol within improperly named OOR as a “Defendant in thirty days. She concluded that the infor- appeal.” Trial April [the] Court’s mation did not fall within exemption Findings of Fact and Order at 1. The trial 708(b)(28) under Section stat- court further concluded that the proper ing: “Defendants” were Van Osdol and WTAE- seeks the names of own- Request [T]he TV, but could joined not be ers of section 8 properties and the prop- because “the Statute of Limitations for addresses, erty not the name of the ten- filing an appeal from the final OOR’s de- ant. The name of the landlord or the termination had run.” Id. at 2. The court address of a 8 eligible property section. determined that the not, itself, does identify an individual join them deprived subject-matter it of Rather, who receives social services. as jurisdiction. The trial court nonetheless admitted the Authority a second step, considered the appeal merits of the more, must be taken identify determined that Authority failed to tenant who is the recipient of social ser- requested establish that information vices. was from access under Sec- Appeals' 4; Officer’s Decision at R.R. at 708(b)(28)(i) (ii)(A) (information tion 13a (emphasis original). in identifying individuals applying for or re- After OOR petition denied a for recon- ceiving social services and the of so- sideration, Authority filed “notice of received). cial services As to the exemp- appeal/petition for review” with the trial 708(b)(30) (the name, tions under Sections designating court appellee OOR as an home address or date of birth of a child the caption and also filed certificate of 708(b)(6)(i)(C) (the years or younger) and service, stating that appeal form was home address of a law enforcement officer served upon parties. all After the trial judge who may own or reside at court conference, scheduled a status OOR properties), the court stated that advised the court that it would not file a Authority could redact such information brief nor appear argument. Van Osdol from the requested Finally, records.3 708(b) exemptions 3. The set forth in apply do not to "financial records.” Section University Founda- Stroudsburg East Authority waived on court concluded Records, 995 A.2d tion v. informa- requested argument its (Pa.Cmwlth.2010), denied, 708(b)(l)(ii) appeal exempt under tion was (2011), in which the Pa. 20 A.3d 490 (the of a substantial likelihood reasonable by OOR quashed a brief filed named to Court physical harm risk of and demonstrable individual) in an respondent as the sole an due security of personal The final determination. Court written OOR’s it in the failure to include to its only an performing concluded that OOR this Authority’s appeal to The decision. standing to adjudicatory function lacked followed.4 Court appeal. its decision on The Court defend the merits of the considered II. part part reversed in and affirmed challenges first OOR’s determination. that it lacked

the trial court’s conclusion hear and de jurisdiction to relying Stroudsburg on East statutory appeal.5 cide Foundation, court University the trial local rules in the absence of maintains that the distinction between recognize failed to from OOR’s statutory appeal governing standing. concept and of jurisdiction decision, appellee. proper OOR was a In “has roots in territorial jurisdiction its 1513(a) Rule cites support, sovereignty” and the idea of principles of Pennsylvania Appellate Rules power to a court’s to hear and “relates 1513(a), Procedure, pro which Pa. R.A.P. v. Ei decide a case.” Commonwealth unit is government that “unless the vides 1122, 1, 16, 591 Pa. 915 A.2d 1132 chinger, disinterested, and no government unit (2007). juris subject-matter The issue of respon named as the one else shall be may be diction cannot be waived and 6 dent.” any by parties by at time raised Daly Darby Twp. sponte. court sua v. concluded that it did not The trial court Dist., 286, 252 A.2d 638 relying Sch. 434 Pa. over the jurisdiction have 708(c). ordinarily inject cannot into a case new issues agency may redact the home ad- An by par- judge preserved officer or which have not been of a law enforcement dress ties). procedure, how- appellate The rules of financial records. (30). ever, 708(b)(6)(i)(C) practice procedure apply to Court, Supreme the Commonwealth Court Court, Superior not to those in the filed an amici 4. Van Osdol and WTAE-TV pleas. Pa. R.A.P. courts of common per- Court. The Court curiae brief with this Moreover, subject-matter jurisdiction lack of argument. present mitted them to oral by may any by parties be raised at time Unemployment Comp. Bd. Tracy v. the court. Authority argues trial court Review, (Pa.Cmwlth.2011). 23 A.3d 612 of improperly issue considered curiae, Van Osdol. In raised the amicus presented, our review is 6.Based on the issues Rule 531 of the support, the cites Procedure, determining trial court to whether the limited Appellate Pennsylvania of Rules law, question error of over 531, committed an anyone provides that Pa. which R.A.P. plenary Kaplin review. v. which we exercise questions any involved in "in the interested (Pa. Twp., 19 A.3d 1209 Lower Merion appellate ... pending in an court manner — Pa. -, denied, Cmwlth.2011), appeal 29 regard to may curiae ... file a brief amicus (2011). reviewing ap added.) A.3d A court 798 (Emphasis See questions_" those scope Carlisle, has broad peals officer’s determination PA v. Bd. Alliance Home also of of 436, Open Dep't v. of review. Corr. A.2d Appeals, 591 Pa. Assessment of Office of Records, (Pa.Cmwlth.2011). 18 A.3d 429 (holding that an amicus curiae

(1969); Tracy Unemployment Comp. whole. The clearly decision shall (Pa.Cmwlth. Review, 23 A.3d concisely Bd. explain the rationale for the of 2011).7 concept standing, The core on [Emphasis decision. added.] hand, a person the other “is that who is Where, here, as a statute right confers a adversely any way by affected in statutory court, file a appeal with a challenge he seeks to not ‘ag court subject-matter is vested with juris- and, therefore, grieved’ thereby may not diction over the appeal. Pass v. Dep’t of judicial “obtain a resolution of his [or her] Transp., Bureau Driver Licensing, 804 challenge.” Parking Garage, Wm. Penn (Pa.Cmwlth.2002). A.2d 77 The trial City Pittsburgh, Inc. v. 464 Pa. court, therefore, subject-matter had juris- (1975). 346 A.2d Standing is a diction to hear and Authority’s decide the non-jurisdictional and waivable issue. statutory appeal. re Condemnation Urban Redev. Auth. Pittsburgh, 590 Pa. 913 A.2d 178 Contrary to the trial court’s asser (2006); v. Unemployment Beers Comp. tion, this holding Pennsylvania Court’s Review, Bd. 534 Pa. 633 A.2d 1158 State Education Association v. Depart (1993). ment Community and Economic Devel opment, Records, 4 A.3d OOR, The mere fact that named as (Pa.Cmwlth.2010), does not support an appellee, was not an “aggrieved” party its conclusion Authority’s failure deprive did not power court of its timely join Van Osdol in the appeal decide the appeal. Section deprived it of jurisdiction. 1302(a) Law, 67.1302(a), of § the 65 P.S. case, In that the association filed a declar provides part: in relevant atory judgment against action OOR in this days Within 30 of mailing original the jurisdiction, date of the Court’s seeking a dec final determination appeals of the officer laration that the requested records were relating to a decision agency[8] of a local exempt from disclosure under the Law. ... or of request the date a action, for access is The Court dismissed the concluding denied, deemed requester a or local that appropriate “the defendant” in the agency may file a petition review original jurisdiction or action was the school other document as required by rule holding districts the records and informa of court with the court pleas sought common tion protected, to be not OOR with of county agency where the local is no interest in the outcome of the action. located. The decision of the court shall Id. at 1164. The “[j]ust Court stated that contain findings of fact and conclusions as cannot participate [OOR] in an appeal of of law based upon the evidence adjudication, as a one of its it cannot serve as 704(a) Code, 7. Under Section of the Judicial 8. The met the definition of a local agency, 704(a), "[a]ny political which 741(a), § 42 includes Pa.C.S. subdi- and Pa. R.A.P. local, “[ajny intergovernmental, vision” and appellee objec- "[t]he failure of an to file an " regional municipal agency, authority, jurisdiction tion to the appellate of an court council, board, govern- commission or similar specified by general within a time oper- a rule entity.” mental Section 102 of the Law. The perfection jurisdiction, ates as a except appeals final determination of the officer re- under (Emphasis certain circumstances. lating to a decision of the Commonwealth added.) expressly applies This waiver rule to agency, legislative agency judicial agen- or a court, jurisdiction appellate of an not to cy must be filed with the Commonwealth jurisdiction pleas of a court of common 1301(a) Law, Court. Section of the 65 P.S. statutory appeal. 67.1301(a). over a §

215 III. original in [the] defendant appropriate con Id. The Court’s action.” the merits of the On Education State Pennsylvania in clusion the addresses of Authority argues with Section consistent Association the names of Section Code, 7540(a) 42 Pa.C.S. exempt of the Judicial owners are property 708(b)(28)(i) declara under Section 7540(a), “When from disclosure provides: § which (ii)(A) the Law because disclosure be persons all shall sought, relief is tory necessarily iden information would of such any inter have or claim who parties made of social tify recipients the declara affected would be est which receive, not which would services tion, prejudice shall and no declaration pro of the Section 8 purpose serve the parties pro to the rights persons safe affording low-income families gram v. HYK Constr. Co. ceeding.” See also sanitary housing neighborhood (Pa.Cmwlth. 8 A.3d 1009 Twp., Smithfield their choice. denied, 2010), Pa. 21 A.3d (2011) (the join an indis purpose The of the Law is to declaratory in an action for party pensable government to official in promote access the trial deprived secrecy, relief to equitable prohibit formation in order officials’ actions and to jurisdiction). scrutinize court for their actions. make them accountable 1101(c) permits of the Law “[a] Records, Bowling agency requester other than the person (Pa.Cmwlth.2010), appeal grant A.2d 813 subject in the record a direct interest with (2011). ed, Pa. 15 A.3d 427 appeals before the appeal” appear to an agency provide a local requires Law support or to file information officer upon request. records” “public agency. requester or the position of the 67.302(a). 302(a) Law, A 65 P.S. Law, however, require does not (1) is not record is a record that any other agency requester, 708 of the exempt under Section interest with direct individuals from disclosure under feder is not from statutory appeal the judicial outcome of or regulations, al law or or state (3) joined. decrees, This protected determination be is not OOR’s or or orders Pennsylvania State Ed- Section 102 of the holding by privilege. in Court’s agency § A local has the bur join P.S. 67.102. ucation Association requested records are proving den of declaratory judgment in the agency the access. Section public subject-mat- of deprived action the Court 708(a)(1) of the Law. to the application has no ter by the statutory appeal governed instant of the Although general provisions the Osdol was not Law. note that Van We liberally be construed effect Law must designation any way by in the prejudiced exemptions from disclosure objects, its appellee. an He was served 708(b) of OOR as narrowly must be under Section review, 1928(c) was appeal/petition notice of of the Statuto construed. Section in the an to intervene given opportunity Act of 1 Pa.C.S. ry Construction in an argument his presented 1928(c); County and Admin. Allegheny Dep’t Inc., Chance, im- The trial court brief. v. A Second amici curiae Se rvs. (Pa.Cmwlth.2011). the basis Van Osdol on A.3d 1025 properly dismissed only the addresses of ap- to obtain joined sought was not that Van Osdol names of the and the Section 8 peal. briefs, owning properties. individuals those tions not evidence of record. does not iden- requested may information itself There be some cases in which the tify apply who for or receive individuals pub- evidence establishes that disclosure of type of social social services or services lic facially exempt records which are not Nor received those individuals. does necessarily easily will or so lead to disclo- directly identify information such sure of protected produc- information that name, home address or date of birth of tion of one is tantamount to production of years age youn- who are 17 children other, or that disclosure of the one is residing properties, or the ger Section highly likely very to cause the harm the home address of a law enforcement officer exemption designed prevent, is but no may judge proper- who own such presented evidence was here.9 Ac- under exemptions ties. When at cordingly, attempt this time we need not (ii)(A) 708(b)(6)(i)(C), (28)(i) and to define in further detail the standards construed, narrowly the Law are as we which must be met to allow withholding of do, requested must information does facially exempt. records which are not not fall within exemptions. those The Authority argues that the re nonetheless asserts that quested information is also exempt from disclosure of the requested information 708(b)(l)(ii) disclosure under Section would enable Van Osdol to ascertain the (the Law reasonable likelihood that disclo social recipients service sure will result in a substantial and demon receive, “[gjiven services the ease of strable physical harm to or the personal county’s electronic records search.” individual) security an and Section However, Authority’s Brief at 16. the rec- 708(b)(6)(i)(A) (personal of the Law identi ord contains no information concerning information), fication and that allowing county’s electronic records capabili- search public requested access to the information properly ties. That disclosed rec- would violate the housing subsidy recipi others, may requestor ords enable the right ents’ constitutional privacy research, by doing further to learn infor- have a discriminatory would impact on mi protected mation from disclosure is norities, women and low-income house generally a sufficient basis to refuse however, The Authority, only holds. cited addition, disclosure. the briefs submit- (28)(i) 708(b)(6)(i)(C), (ii)(A) ted to the trial court Neighborhood (30) of support the Law to its denial of Legal Services Association and The Fair Van request. agency Osdol’s An Housing Partnership denying of Greater Pitts- request burgh disturbing contain disclosure of a allega- factual record decision, forth, concerning tions the harm must issue a written setting disclosure could alia, inter cause to the specific tenants whose addresses are “[t]he reasons for the sought, again, denial, but are merely these asser- including a citation supporting 9. Van Osdol has noted that the properties itself available Section 8 rental and the made information similar that it to phone first names and numbers of individuals provide. printout refused to The from the to be contacted for further Ex- information. Authority’s website contained a statement that through hibits B H to the Affirmation. It is "[a] 8 website is available with a not clear whether "available” rental units are listing detailed of available rental units.” Ex- vacant; so, those which are if those addresses hibit A to the Affirmation of Van Osdol’s identity would not disclose of Section 8 Counsel; (C.R.), Certified Record Item No. subsidy recipients, posting and this would website, www.apartmen.ts The have litde relevance to the issue at hand. inpittsburgh.net, posted then the addresses of 903(2) closure could the tenants of cause to legal authority.” 67.903(2). if the addresses 65 P.S. provided. Majority are sought also justify to its decision on may attempt not may recognizes that there be circum- relying on additional reasons appeal by stances which the disclosure Signature denial. included in its written facially exempt records are not “is Solutions, v. Aston Twp., LLC Info. likely harm highly very to cause the (Pa.Cmwlth.2010). A.2d exemption (Majori- is design prevent.” to Accordingly, we vacate trial court’s 216.) ty at op. dismissing order light of the concerns identified this lack of and remand matter this case, I believe that a consideration of addi- entry affirming of an order to court for tional relevant evidence is warranted. of OOR. final determination

Therefore, I would order a further remand the OOR parties present to allow the to ORDER such evidence for OOR’s consideration. NOW, March, day this 8th AND of Common Pleas of the order of the Court County above-captioned in the

Allegheny

matter This matter is re- is VACATED. entry the court for of an order

manded to the final determination of the

affirming Records. Open

Office of TOWNSHIP, relinquished. Jurisdiction MIDDLETOWN Petitioner Judge OPINION BY CONCURRING McCullough. UNEMPLOYMENT COMPENSATION agree Majority’s I with decision REVIEW, BOARD OF

vacate remand this to the trial Respondent. however, separately, court. I be- write cause that a further remand to I believe Pennsylvania. Commonwealth Court (OOR) Records war- 14, 2011. Submitted on Briefs Oct. the parties ranted in order to allow Decided March evidence, in submit camera or additional otherwise, county’s elec- regarding: capabilities; dis-

tronic records search how requested information would

closure of the

lead of social services to the identification

recipients types and the services

receive; harm that such disclosure participating

could to tenants cause Program.”

“Section 8 recognizes, Neigh-

As Majority Services Association and Legal

borhood Partnership Housing

The Fair of Greater presented disturbing have fac-

Pittsburgh concerning

tual the harm dis- allegations

Case Details

Case Name: Housing Authority of Pittsburgh v. Van Osdol

Court Name: Commonwealth Court of Pennsylvania

Date Published: Mar 8, 2012

Citation: 40 A.3d 209

Docket Number: 795 C.D. 2011

Court Abbreviation: Pa. Commw. Ct.