McMullan v. Wohlgemuth et al., Appellants.
Supreme Court of Pennsylvania
July 2, 1973
July 30, 1973
453 Pa. 147 | 308 A.2d 888
reargument refused July 30, 1973.
Bruce W. Kauffman, with him David H. Pittinsky, Carl H. Hanzelik, and Dilworth, Paxson, Kalish, Levy and Coleman, for appellees.
Jonathan M. Stein and Douglas G. Dye, amicus curiae.
OPINION BY MR. JUSTICE ROBERTS, July 2, 1973:
In early 1971, four reporters of the Philadelphia Inquirer (a metropolitan newspaper owned by the appellee Philadelphia Newspapers, Inc.) requested from Helen Wohlgemuth, the Secretary of the Pennsylvania Department of Public Welfare, and Clarence Jenkins, the Executive Director of the Philadelphia County Board of Public Assistance, permission to examine and inspect departmental lists containing the names and addresses of and amounts received by Philadelphia public assistance recipients. The City Editor of the Inquirer made, at the same time, an identical request, by telegram, to the Governor. Both requests were refused.
Thereafter, on February 14, 1971, appellees filed two actions (one in mandamus, the other in equity) in the Commonwealth Court seeking to gain the requested information. The Commonwealth Court, after conducting a hearing, issued a preliminary injunction enjoining the Department of Public Welfare from withhold
During the pendency of the above two proceedings, the Inquirer, through its Executive Editor, John McMullan, formally requested of Secretary Wohlgemuth that the desired information be made available. Secretary Wohlgemuth, in a letter dated July 7, 1971, formally refused to permit the Inquirer access to the public assistance information it sought. The Inquirer appealed this denial to the Commonwealth Court, which, on December 9, 1971, reversed the decision of the Department of Public Welfare and ordered the Department to grant access, as sought by the Inquirer. McMullan v. Wohlgemuth, 3 Commonwealth Ct. 574, 284 A. 2d 334 (1971). This Court granted allocatur and issued a supersedeas to preserve the status quo. We now reverse the order of the Commonwealth Court.
We are here called upon to decide whether appellees, either under our common law or under the “Right-To-Know Act” (
In 1939, the Pennsylvania Legislature enacted a provision in the Welfare Law which provided for the availability of names, addresses and amounts received by recipients of “general assistance.”
In 1953, this provision which allowed for the disclosure of “names” was repealed,2 and in its place the following statute enacted: “Section 7. Powers and Duties of County Boards of Assistance. Each county board of assistance shall have the power, and its duty shall be: [delete old provision] (o) Upon request by any adult resident of the Commonwealth, to furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made,
A reading of this 1953 provision readily reveals the marked differences between it and its repealed 1939 predecessor, supra. The law as it existed in 1953 was specifically changed in three respects: (1) Disclosure was not permitted where the information obtained was to be used for “commercial or political” purposes; (2) the requesting party was now required to be an “adult resident of the Commonwealth“, rather than merely a “taxpayer” and; (3) the County Boards of Assistance were no longer permitted to disclose the names of those persons receiving public assistance. The prerequisite was legislatively placed upon the “adult resident” to come forward with the name (or names) of a recipient (or recipients) “about whom inquiry is made.”
In 1967, the welfare laws were recodified,3 and the following sections included in the new Public Welfare Code:
Ҥ404. Regulations for protection of information
(a) The department shall have the power to make and enforce regulations:
(1) to protect the names of applicants for and recipients of public assistance from improper publication, and to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance. Upon request by any adult resident of the Commonwealth, the department may furnish the address and amount of assistance with respect to persons about whom inquiry is made; but, information so obtained shall not be used for commercial or political purposes; and no information shall
be furnished regarding any person‘s application for, or receipt of, medical assistance for the aged.”
Ҥ425. Furnishing information
Upon request by any adult resident of the Commonwealth, any county board shall furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes.”
In supplementing its statutorily conferred regulatory authority, as set out in §404(a)(1), supra, the Department of Public Welfare adopted Regulation 4143.31 (Department of Public Welfare-Public Assistance Manual):
“4143.31 Request by an Adult Resident of Pennsylvania.
(Does Not Apply to Medical Assistance)
Provided that the information is not to be used for political or commercial purposes, the address and amount of assistance a person is currently receiving are disclosed to any adult resident of Pennsylvania who asks for such information about any person.
In releasing such information, the County Office must be reasonably assured that the person is 21 or over
- If the inquirer appears in person, the information in the ‘Request’ section of the PA. 163, REQUEST FOR ADDRESS AND/OR AMOUNT OF ASSISTANCE, is filled in, and the person making the request signs the form, before the information is disclosed. The ‘Reply’ section of the form is then filled in.
- If the request is made by telephone and the inquirer is known to the person receiving the request and the inquirer knows about the restrictions on the use of information, the information is given over the telephone; otherwise the inquirer is advised to either come to the office or to make his request in writing. When information is given over the telephone, the person giving the information prepares a PA. 163 for file, showing the name of the person making the request.
- If the information is requested by correspondence, the County Office prepares a reply in duplicate, always including in any reply that gives information the following excerpts from the Public Welfare Code:...”
“Section 483 Penalties. - ‘Any person knowingly violating any of the rules and regulations of the department made in accordance with the Article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine, not exceeding one hundred dollars ($100), or to undergo imprisonment, not exceeding six months, or both.‘” (emphasis added.)
In addition to Regulation 4143.31, the Department has also adopted Regulation 4142, which, in full conformity with the 1967 statute it implements (§404 (a) (1), supra), forbids disclosure of the “[n]ames of applicants and recipients” of public assistance. See also Regulations 4143 et seq. Department of Public Welfare-Public Assistance Manual.
The corporate appellee (newspaper) must be denied access to the information it requests since it fails to meet all three of the above statutory requirements. Clearly, no one would seriously suggest that the Philadelphia Newspapers, Inc. is an “adult resident” of Pennsylvania. In the 1953 and 1967 revisions of the Public Welfare Law, the Legislature clearly narrowed the class of those entitled to request information (the addresses and amounts received by public assistance recipients) from “taxpayers” to “adult residents of the Commonwealth.” This classification obviously does not include corporations, such as the appellee here. If the Legislature had intended to include “corporations” in the class eligible to request information, it explicitly could have done so. Despite this plain language, the court below directed that the corporate appellee be furnished information forbidden to it by statute. That court apparently failed to realistically discern that the individual appellees are one and the same as their corporate counterpart.
Although the important informational role of the press cannot be over-emphasized, and although the Inquirer‘s goal here may be laudable, appellees have not asserted any non-commercial or non-political use for the public assistance information requested. Thus, we
Finally, and most importantly, the appellee-newspaper, as well as the individual appellees, are foreclosed under §§404 (a) (1) and 425, supra, since they have failed to produce the names of recipients “about whom inquiry is made.” A common sense reading of the statutes, and a review of the legislative reforms of the last thirty years, makes it abundantly clear that the Legislature in the 1953 and 1967 public welfare enactments, supra, placed the responsibility on the “adult citizen” to produce the names of those recipients “about whom inquiry is made.”5
Accordingly, since the appellees have failed to comply with the mandatory and unambiguous statutory requirements, the information they seek must be denied. The statutory requirements (§§404(a) (1) and 425, supra) mean exactly what they say--“any adult resident of the Commonwealth” can request that the County Boards of Assistance or the Department of Public Welfare furnish “... the address and amount of assistance with respect to persons about whom inquiry is made.” These provisions only allow for the disclosure of addresses and amounts received with respect to those
Were appellees’ view to prevail, these listings could encompass the entire Commonwealth. Surely, the funds and time required to comply with such potentially unlimited and extensive requests would affect adversely the quality and costs of public assistance programs in Pennsylvania.
II
Despite the clear mandate of §§404(a) (1) and 425, supra, appellees nonetheless contend that the “Right To Know Act”7 entitles them to the information they seek. Appellees have misinterpreted the clear language of the “Right To Know Act“, and particularly the exceptions contained therein, as well as §§404 (a) (1) and 425, supra, and the attendant Department of Public Welfare regulations.
The “Right-To-Know Act” gives “any member of the Commonwealth” a statutory right of access to every “public record” of a state agency. A “public record” is defined by the Act as: “Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.. .” 65 P.S. §66.1(2) That definition, although appearing to be broad enough to encompass the records sought here, McMullan v. Wohlgemuth, supra, 444 Pa. at 567, 281 A. 2d at 838, is much narrower when read in conjunction with the Act‘s four clear exceptions to the “public record” disclosure definition:
“[T]he term ‘Public Records‘-
“1 shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation un-
dertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants;
“2 shall not include any record, document, material, exhibit, pleading, report, memorandum, or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court,
“3 [shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would operate to the prejudice or impairment of a person‘s reputation or personal security,
“4 [shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act. 65 P.S. §66.1(2).” (emphasis added.)
Sections 404 (a) (1) and 425 of the Public Welfare Code prohibit the disclosure of names of public assistance recipients. And the sections clearly do not permit the disclosure of addresses or amounts received by recipients where the information obtained is to be used for a “commercial purpose.” Therefore, how can it be said that exception (2) of the “Right to Know Act” (noted above) does not exempt from public disclosure the information sought by appellees. The simple answer to this rhetorical question is that it cannot be. Sections 404 (a) (1) and 425, supra, are “statute law[s]” which prohibit, restrict and forbid “access to” the names of public assistance recipients, and where to be used for a “commercial” purpose, the addresses and amounts received by those receiving public assistance.
Appellees also contend they are entitled to the information they seek under the common law of this Commonwealth. Such an assertion must be dismissed. As this Court said in Mooney v. Temple University Board of Trustees, 448 Pa. 424, 429-30, n.10, 292 A. 2d 395, 398, n.10 (1972): “It is unquestioned that the right to inspect public documents was no broader at common law than it is presently under the statute [“Right to Know Act“, supra]; it may have been more restricted by being limited only to persons with a ‘personal or property interest’ in the matter sought to be disclosed. Wiley v. Woods, 393 Pa. 341, 347-50, 141 A. 2d 844, 848-49 (1958). Therefore, disposition of appellant‘s claim under the Inspection and Copying Records Act [“Right to Know Act,” supra] a fortiorari resolves appellants’ claims at common law.” (emphasis added.)
III
In view of the foregoing statutory analysis and the conclusion that the statutory provisions preclude appellees from obtaining the information they seek, we must now consider whether the “Right to Know Act“, supra, and §§404 (a) (1) and 425 of the Public Welfare Code, supra, as applied, are unconstitutional, as being violative of appellees’ rights under either the Unit-
Appellees suggest, and we agree, that this is not a case involving the right of the press to print, publish and distribute information. If it were, the result we reach would be quite different. Cf. New York Times Co. v. United States, 403 U.S. 713, 91A S. Ct. 2140 (1971), and the cases cited therein. Here, no impermissible prior restraint is involved. The sole question presented is whether the First Amendment, made applicable to the states through the Fourteenth Amendment, of the United States Constitution, and art. I, §7 of the Pennsylvania Constitution, guarantee the press the unrestricted right to “gather” news by compelling County Boards and the Department of Public Welfare to furnish appellees with a list of the names of all Philadelphians receiving public assistance. In our view, neither constitutional provision so provides.
No United States Supreme Court decisions have been found which directly hold that the First Amendment embodies the right of the press to “gather” news. So, too, there is no authority whatever for judicially compelling the disclosure to the press of material, statutorily restricted.
Nevertheless, it is perhaps logical to assume that such a right to gather news “of some dimensions must exist” if the First Amendment is to have realistic vitality. As Mr. Justice STEWART recently stated in his dissenting opinion in Branzburg, supra: “A corollary of the right to publish must be the right to gather news. . . . News must not unnecessarily be cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.” 408 U.S. at 727, 728, 92 S. Ct. at 2672-73 (emphasis added) (citation omitted). Although
In this instance, appellees have advanced no persuasive reasons why the right of the press should be given wider boundaries than that of the public it seeks to inform. As the Court noted in Branzburg, supra: “. . . [T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, 381 U.S. 1, 16-17 (1965); New York Times v. United States, 403 U.S. 713, 728-30 (1971) (STEWART, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F. 2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71, 77, 123 N.E 2d 777, 778 (1954).” 408 U.S. at 684, 92 S. Ct. at 2657. “The right to speak and publish does not carry with it the unrestrained right to gather information.” Zemel, supra at 17, 85 S. Ct. at 1281 (emphasis added).11 See
The holding of the Third Circuit in Tribune Review Publishing Co. v. Thomas, supra, is especially relevant here: “Realizing that we are not dealing with freedom of expression at all but with rules having to do with gaining access to information on matters of public interest, can it be argued that here there is some constitutional right for everybody not to be interfered with in finding out things about everybody else? We suppose it would not be contended that a newspaper reporter or any other citizen could insist upon entering another‘s land without permission to find out something he wanted to know. In the same way merely because someone‘s private letters might be interesting as gossip or as models of English composition it would hardly be argued that one could open another‘s desk and read through what he finds there. Could an interested observer insist on the constitutional right to take motion pictures of a private family in and about its household contrary to that family‘s wishes? We think that this question of getting at what one wants to know, either to inform the public or to satisfy one‘s individual curiosity is a far cry from the type of freedom of expression, comment, criticism so fully protected by the first and fourteenth amendments of the Constitution.” 254 F. 2d at 885 (emphasis added).
Here, the Commonwealth‘s interest in protecting the privacy of those it aids through public assistance is paramount and compelling. The Legislature, by enacting §§404 (a) (1) and 425 of the Public Welfare Code,
judicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.’ Id., at 361. See also Estes v. Texas, 381 U.S. 532, 539-540 (1965); Rideau v. Louisiana, 373 U.S. 723, 726 (1963).” Branzburg v. Hayes, 408 U.S. at 684, 685, 92 S. Ct. at 2658 (1972).
The statutory ban against disclosing the names of public assistance recipients is a clear recognition and directive by the Legislature that the privacy of the recipient is a fundamental need worthy of protection. This Court is bound to give great deference to this sound legislative judgment. The statutory limitation imposed on appellees’ asserted First Amendment right to compel the disclosure of those receiving assistance is no greater than necessary to protect the substantial governmental and individual interests involved. Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S. Ot. 247 (1960). Accordingly, in the face of this legislative directive, appellees cannot prevail.12 Again, we emphasize that this
Having determined appellees’ arguments adversely to them, we need not consider appellants’ contention that the disclosure of the names and addresses of and amounts received by public assistance recipients would violate the constitutional right of privacy guaranteed these needy citizens. The Legislature in excluding the names of public assistance recipients from public disclosure wisely avoided this constitutional challenge. See §§404(a) (1) and 425 of the Public Welfare Code, supra.
The order of the Commonwealth Court is reversed.
Mr. Justice EAGEN concurs in the result.
DISSENTING OPINION BY MR. JUSTICE POMEROY:
I find it ironical that the Court, especially at this particular time in our national experience, through a restrictive and erroneous reading of legislative acts, should bar a large metropolitan newspaper from govern-
ment records of disbursement of public monies to private individuals. Since my reading of these same statutes cannot be reconciled with that of the majority, I must respectfully dissent.
The starting point in answering a question involving access to government-controlled information in Pennsylvania is the Act of June 21, 1957, P. L. 390,
“[T]he term ‘public records’ —
“1* shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants;
“2* shall not include any record, document, material, exhibit, pleading, report, memorandum, or other
paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, “3* [shall not include any record, document material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would operate to the prejudice or impairment of a person‘s reputation or personal security.
“4* [shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.
65 P.S. §66.1(2) .”*
The Commonwealth argued in this Court that exemptions (1) through (4) inclusive apply to bar The Inquirer from access. I note, however, that no argument was presented with respect to exception (1) in the Commonwealth Court; under settled principles this Court should not decide it on this appeal. Although the majority states that exceptions (1) and (3) “are equally persuasive in foreclosing the appellees’ contentions,” Opinion of the Court, ante at 160 n.8, it does not decide the applicability of either exception. I will follow suit and not discuss (1), (3) or (4); suffice it to say that I do not find them either persuasive or applicable.
The crux of the matter then is the applicability of exception (2): Is there a statute which prohibits access to or publication of the information sought by The Inquirer? As the majority correctly determines, there are two sections of the
Ҥ404. Regulations for protection of information
“(a) The Department shall have the power to make and enforce regulations:
“(1) to protect the names of applicants for and recipients of public assistance from improper publication, and to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance. Upon request by any adult resident of the Commonwealth, the department may furnish the address and amount of assistance with respect to persons about whom inquiry is made; but, information so obtained shall not be used for commercial or political purposes; and, no information shall be furnished regarding any person‘s application for, or receipt of, medical assistance for the aged.
Ҥ425. Furnishing information
Upon request by any adult resident of the Commonwealth, any county board shall furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes.”
Act of June 13, 1967, P. L. 31, art. IV, §§404, 425, 62 P.S. §§404, 425 (emphasis added).
The Commonwealth argues that these sections only provide for disclosure of addresses and amounts of assistance received by the public welfare recipient, and do not permit the disclosure of names. In addition the Commonwealth argues that the attempt by the appellees to comply with the apparent statutory requirement that they furnish names—appellees presented a Philadelphia telephone directory—cannot be regarded as sufficient.2 As
In 1939 our Legislature enacted the following provision in the then Welfare Code:
“Section 7. Powers and Duties of County Boards of Assistance.
“Each county board of assistance shall have the power and its duty shall be:
“(o) To make available for inspection and examination during office hours, to any taxpayer, in such manner as the county board of assistance may prescribe, the names, addresses, and amounts of assistance granted to all persons then receiving general assistance.” Act of June 26, 1939, P. L. 1091 (emphasis added).
This provision remained the statutory law of the Commonwealth for a period of fourteen years. Were the statute still framed in these terms it could not be argued that the information sought here would not be available.
In 1951 the federal Social Security Administration (precursor of the Department of Health, Education and Welfare) ruled that a similar provision in the Indiana Welfare Act did not conform to federal requirements in that it made available to the general public the names, addresses and amounts received by welfare recipients, and therefore the federal Administrator withheld federal funding of Indiana‘s assistance programs. That ruling was upheld in Indiana v. Ewing, 99 F. Supp. 734 (D.D.C. 1951). Congress, however, almost immediately reacted to overrule the federal court decision by attaching to the Revenue Bill of 1951 what came to be known as the “Jenner Amendment“, and enacting it into law. It provided: “No state or any agency or political subdivision thereof shall be de-
On November 8, 1951 the Administrator of the Social Security Administration circulated to each state office of welfare administration his State Letter No. 1664 containing the following interpretation of §618 of
The Pennsylvania General Assembly in 1953 amended the 1939 provision on access to names, addresses and amounts (set out supra) so as to read as follows:
“Section 7. Powers and duties of County Boards of Assistance.
“Each county board of assistance shall have the power, and its duty shall be:
* * *
“(o) Upon request by any adult resident of the Commonwealth, to furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes.” Act of August 22, 1953, P. L. 1361 (emphasis added).5
It would appear that this interpretation was unnecessarily restrictive, turning as it did on the use by Congress of the passive voice (“access may be had“) and ignoring as it did the fact that Congress had by the Jenner Amendment sanctioned state legislation which not only did not have the state “refrain from taking the initiative“, but affirmatively required the state officials to prepare and post a list for public inspection.
It is apparent that this amendment of 1953 was enacted in direct response to the Jenner Amendment, as interpreted by the Social Security Administration. It (1) directly tracked the Jenner Amendment‘s language as to the “commercial or political” purpose restriction; and (2) it clearly placed upon the person making inquiry the obligation to suggest names to the county board of assistance, in response to which the board would inform the inquiring person whether or not the persons named were welfare recipients and, if so, where they lived and how much they received. In other words, the disclosure was now to be initiated by the person making inquiry, and not by the Board.
In 1967 the Pennsylvania legislature enacted a consolidation and codification of the existing laws,
(a) “Persons About Whom Inquiry Is Made”
The root question, of course, is whether the second exception to the definition of public record contained in the Right-To-Know Act (i.e., those records “access to or the publication of which is prohibited, restricted or forbidden by statute law. . . .“) serves to bar The Inquirer (or any citizen of the Commonwealth, for that matter) from obtaining the information it here seeks. Having in mind the historical background detailed above concerning the disclosure of public assistance in-
I think it beyond dispute that the only policy change reflected in the 1953 amendment to the Public Welfare Code was a legislative desire to comply with the drafting suggestions of the Administrator of the Social Security Administration, viz., that the initiative, the burden of inquiry as it were, be placed upon the interested citizen, and that the State itself refrain from taking the initiative of disclosure. If compliance with legislative policy were all that were required, appellees’ efforts to carry the burden of making inquiry should clearly suffice. A court, however, is not permitted to disregard statutory language which is “clear and free from all ambiguity” under the guise of pursuing the “spirit” of the statute. Statutory Construction Act of 1970, added by
The statute makes no distinction whatever between, say, inquiry about ten persons and inquiry about a thousand or ten thousand. Nor does the history of the provision support such a limitation. The Inquirer in fact presented the county board with a Philadelphia telephone directory and demanded that the board indicate which persons listed therein were recipients of public
Seeing nothing in either the language or the policy of the statute which would in any way limit the number of persons about whom inquiry may be made at one time, I would hold that The Inquirer met the precondition of section 425 of the Public Welfare Code and is entitled to a response from the Philadelphia County Board of Public Assistance.
In a single paragraph and without citation to any authority, the Court holds, although the issue is nowhere raised, that until The Inquirer shows to the contrary it must be taken that its purpose is commercial or political, and that it is thus not entitled to the information. We have not heretofore had occasion to interpret the word “commercial” in the context of this section of the Public Welfare Code. Guidance may be had, however, from the analogous situation presented by a newspaper‘s claim to privilege under the libel laws. In New York Times Co. v. Sullivan, 376 U.S. 254, 266, 11 L. Ed. 2d 686 (1964), the United States Supreme Court, in recognizing a conditional privilege arising under the First Amendment to publish defamatory material, was unimpressed by the argument that the newspaper-petitioner‘s claim to protection was forfeited by the commercial nature of its activities: “That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold . . . [W]e hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement.” See also Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44 n.12, 29 L. Ed. 2d 296 (1971);7 Grove v. Dun & Bradstreet, Inc., 438 F. 2d 433 (3d Cir. 1971) (private subscription credit report of restricted distribution held not protected by New York Times Co. v. Sullivan); Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 285 A. 2d 166 (1971) (same).
There is thus no basis whatever on this record for us to hold that The Inquirer‘s purpose is of such a crass pecuniary nature and is not a purpose normally associated with the operation of a newspaper. As the majority notes, there is a statutory penalty (six months’ imprisonment and/or $100 fine) for violation of the Department of Public Assistance‘s regulation prohibiting commercial or political use of such information. See Department of Public Welfare Regulation 4143.43,
(c) “Shall” or “May”
Section 404 of the Public Welfare Code provides that the Department of Public Assistance “may” disclose the addresses of and amounts of assistance received by persons about whom inquiry is made. Section 425 of the Code, on the other hand, provides that the county board “shall” make that same disclosure. The majority concludes in a footnote (Opinion of the Court at 153 n.4), again without the issue having been raised by any party, that the word “may” in section 404 should be read as empowering the Department to publish a regulation that the county board “shall not” make such disclosure, the mandate of section 425 to the contrary notwithstanding. This is said to be an in pari materia construction which gives effect to both provisions.
There is no major problem of construction presented by the permissive provision of one paragraph and the mandatory language of the other. The Department has discretion to make or not to make the disclosure. Presumably, the information sought would be more readily accessible at the county board level, the level at which the Department‘s lower echelons and the recipients have direct contact, rather than at the higher state level. Thus the Department has been empowered to refuse, if it wishes, to deal with requests for information which is more readily available under mandatory procedures at the county board level.8 These are deliber-
(d) “Adult Resident”
The Court holds, without citation to authority and yet again without the question having been raised, that “no one would seriously suggest that the Philadelphia Newspapers, Inc. is an ‘adult resident’ of Pennsylvania.” To the contrary, I do suggest, and seriously, that indeed the appellee corporation is an “adult resident” of this State and is entitled to the access provided by the two sections of the Public Welfare Code of 1967 here involved. The Legislature has directed that “unless the context clearly indicates otherwise,” the word “person” is to be taken to include a “corporation, partnership and association.”
It would appear to me that an “adult resident” is a “person” who (or which) possesses two identifying attributes: (1) maturity, and (2) permanent location in Pennsylvania. The appellee Inquirer lacks neither quality, and therefore, in view of the legislative direction that we regard statutes as speaking to both artificial as well as natural persons “unless the context clearly indicates otherwise“, must be taken as meeting the requirements of the statute.
It seems to me quite incongruous for the Court to go out of its way to construe statutes regulating access to public records in such a way as to exclude newspapers. Public welfare today comprises 16% of the annual general fund budget of the Commonwealth. Even more so than in the 1930s when government first undertook direct relief, it is definitely big business, involving half a billion dollars of Pennsylvania taxpayers’ money and eight hundred thousand recipients.9 One may well ask who, if not the news media, would have incentive or resources to undertake an analysis of this area of the operation of our State government. The exclusion of newspapers from the sections of the Public Code of 1967 at issue here is tantamount to the exclusion of the public.10
I am in agreement with that part of the opinion of the Court which holds that The Inquirer is not entitled under either our State‘s constitution or under the federal constitution to compel production of the information it seeks here. I do wish to emphasize, however, that the Court has expressly and properly avoided deciding whether the disclosures sought by the appellees, were they permitted under the Right-To-Know Act, would violate constitutional rights of privacy of the recipients of public assistance. The majority is clearly wrong, however, when it says that “[t]he Legislature . . . wisely avoided this constitutional challenge.” For even under the majority‘s interpretation of sections 404 and 425 of the Public Welfare Code of 1967, an “adult resident” can, by offering names, learn the identity of recipients of public assistance and the amounts thereof. His doing so would set the stage for constitutional confrontation on the privacy issue undecided by today‘s opinion.
Mr. Chief Justice JONES joins in this dissenting opinion.
Notes
If it were concluded otherwise, all who are in possession of a telephone directory or other similar compilation, including voter lists, could compel the Department of Public Welfare and the County Boards of Assistance to research the directory‘s listings, and dissect from them those people who receive public assistance. (There are more than 4,500,000 telephone subscribers in the Commonwealth, and more than 5,000,000 registered voters.) This task, beyond question, would be enormous, and in fact, could well transform public welfare services into informational disbursement offices, with the attending huge expenditures of time and money.
The title of this 1953 amendment to the Public Welfare Code recited as its purpose that of “authorizing the Department [of Public Assistance] and local boards to disclose the identity of recipients of assistance and amounts received.” I fail to understand how the Court can find in this 1953 amendment, with this recited purpose of disclosing the identity of recipients, the expression of a legisla-“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press....”
Contributions from the federal government to public assistance programs in Pennsylvania total another half billion dollars.“The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty....”
One is reminded of the high priority which Thomas Jefferson placed upon the right of the public to be informed by the press: “The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without news-