*1 in the referee did Therefore, case which present termi Employer’s in requested the relief beyond not look in from those cases clearly distinguishable petition nation relief other sponte referee acted sua granting which the the referee Because specifically requested. than the relief obligation beyond no to look case was under instant termination, we conclude by Employer’s petition requested consider whether the failing not err that the referee did We note that supported record modification. evidence of for termi petition with a presented in this case was referee fact and conclu findings made that he properly nation and requested by Employer. to the relief respect of law with sions in error. Therefore, that the referee was we cannot conclude is affirmed. of the Board Accordingly, the order ORDER 24,1994, NOW, the order of the Workmen’s February AND matter is above-captioned in the Appeal Board Compensation affirmed. PORTA, dissents. Judge,
DELLA Senior
638 A.2d COMPANY, Publishing Company Observer PG PUBLISHING
v. Belcastro, WASHINGTON, Paul Controller COUNTY OF Washington Washington, Pennsylvania. WASHINGTON, Appellant.
Appeal of OF COUNTY Pennsylvania. Court of Commonwealth Argued Nov. 1993. Decided Feb. *3 Sol., appellant. for Bassi, Washington County Melvin B. for P.G. Pub. Co. Perry Napolitano appellee, A. Marriner, Jr., Observer Pub. Co. appellee, for Stephen D. curiae, Pennsylvania State L. for amicus Knupp Robert County Com’rs. Ass’n JJ., NARICK, KELLEY, McGINLEY
Before Judge. Senior
NARICK, Judge. Senior Belcastro, and Paul Controller Washington
County County) from (collectively, appeal County Washington order com- Washington County’s Court of Common Pleas produce its Cellular One pelling Co.1 and the Observer Publishing PG requested records pursuant Section Publishing (collectively, Newspapers) Co.2 (Act), 21, 1957, Act Act of June P.L. 4 of the to Know Right affirm, modified. § 66.4. We as P.S. HISTORY Newspapers3 requested the summer statements telephone billing itemized Cellular One provide 1991, 1992 and 1993. This included all the'years request bills, monthly and all pages accompanying and documents its accounts with County regarding documents received One. Cellular 21, 1993, Newspa- letter dated refused
By June urgent, compelling “some request, stating absent pers’ *4 Post-Gazette, Pittsburgh newspaper a Publishing publishes Co. the 1. PG circulation, Washington particularly Allegheny and Counties. of wide 2. The Observer Washington Re- Publishing publishes the Observer Co. County. newspaper Washington porter, of wide circulation in independently, Newspapers originally requests PG Pub- made their by Publish- lishing making request its first followed soon after Observer essentially the same course ing’s request. Because the actions followed cases, will eventually the we events trial court consolidated and the simultaneously refer to occurring and continue to describe the events as Newspapers. Publishing collectively as Publishing and Observer PG the interests of totally proprietary it within we believe
reason and allow view the summaries not government give only to (134a). question.” bill in specific of Com- in the Court statutory appeal filed a Newspapers 4 of the to Section Washington County pursuant Pleas of mon access the Act, County’s provide the refusal challenging evidentiary an expedited trial conducted bill. The court entire counsels. argument by parties’ the hearing, which included is a synopsis the of this matter resolution Essential trial as found court. pertinent facts assigned County to various Twenty-one phones cellular are officials, including the and governmental departments Service, Administration, Sheriff, Coro- Center, Health EMS Drug Task Force ner, Attorney, Attorney District District Force), Commis- Task and three (Drug Agency sioners. major into two sections. phone
The bills are broken down which sets forth the total “summary” first section The month, current County for the amount owed dollar phone monthly activity phone, assigned of each cellular for the month. charge phone the total of each number and by each is an itemization of calls made The second section called, time, city, the number phone indicating cellular (itemization). In- date, per call amount of air-time cost date amount of air-time coming are also recorded calls received, but neither the caller’s a fee is for all calls paid as nor location on the itemization. provided number appears on the itemization as to what calls No distinction Various “County “personal.” are business-related” they under “honor have system,” officials testified that However, for “personal” calls. reimbursed personal calls trial court found that this reimbursement no on the issue of whether or the documents bearing has Act. trial court “public are records” under the requested four as synopsized officials testimony also follows: *5 Pettit,
Testimony Attorney, from the District John C. publication, indicated that as a result of the all of the phone relating (approximately cellular numbers his office 7) changed, had to be due to the nature of the work performed by Attorney (ongoing the District criminal inves- tigations/prosecutions). Mr. Pettit also testified that disclo- sure of his office’s cellular numbers a list of itemized and/or for those numbers billings jeopardize safety would and, impor- law enforcement officers under his control more ongoing investigations, especial- criminal at risk tantly, put ly Drug they those Task Force Unit as could be discovered and identified. addition, involving calls to and confidential informants
using drug investigations those numbers related would be jeopardized, along with their personal security. The reason being the itemized statements phone set forth the called, and, if published, confidential informants’ identities and, would be compromised obviously, their personal safety in jeopardy would be with along hampering the district attorney’s drug investigation work. Timothy
Coroner and Sheriff Warco James Fazzoni testi- only fied that their offices had one cellular phone, used themselves. Coroner Warco indicated his office dealt with death and the possible criminal involvement of individuals and, therefore, surrounding death due to the sensitive na- circumstances, ture of these objected he to the release of any itemized statements on his cellular phone usage.
Similarly, Sheriff Fazzoni testified that the use of his phone enforcement, is essential to law as he receives calls from the District state Attorney, police and local requesting his assistance in various criminal matters which like- would revealing. wise merit
(Trial 5-6) court opinion (emphasis original). On August 24, 1993, the trial court opinion issued an order and granting, exceptions, public with limited County’s access to the entire bills, monthly Cellular including One itemizations. states, The order in pertinent part: County, both Washington All records phone cellular numbering twen- billings, currently itemized summary and 66.1(2) (21) records, § pursuant P.S. ty-one are inspection copy- subject to examination and and are and/or *6 62-2-66.3, any §§ citizen by to 65 P.S. ing pursuant Belcastro, of the Paul Controller Commonwealth. records, shall in lawful custodian of such Washington in- time for such reasonable rules and adopt and enforce examination, Any copying said copying. spection, and/or entity the individual or at the cost of documents will be requesting same. Drug Task
However, Attorney and the Force the District Attorney of the District under the supervision Unit redact, remove, telephone or obliterate those permitted investigations criminal involving numbers active and/or cellular including the of confidential informants numbers Attorney’s office. assigned to District copies of 25, 1993, again requested August Newspapers On from the Controller. One bills County’s Cellular and, records on provide refused these The Controller 9,1993, to this appeal filed its notice September Court.4 its that the trial court County, appeal, argues the Cellular One holding as a matter of law
erred may “open be “public record” which itemization is citizen of the Common by any and inspection examination Act, § 2 of the 66.2. Pennsylvania.” Section P.S. wealth is an all have conceded parties Because the trial analysis by reviewing our agency,5 begin we will supersedeas filing appeal an notice of created automatic 4. The of the ’1736(b), staying County pursuant the trial favor of the to Pa.R.A.P. requests to order. Both the trial court and this Court denied court’s supersedeas lifted. have the automatic "any the executive agency department, An board or commission of Commonwealth, any political subdivision of the Common- branch of Commission, wealth, Turnpike any Pennsylvania or munici- State authority organization pursuant to a pal created statute or similar organization performs or has for that such which declares in substance court’s conclusion that the Cellular One itemization was a “public record” within the definition set forth in the Act.6
PUBLIC RECORD 1(2) Act, 66.1(2), § Section 65 P.S. “public defines a record” as: account,
Any voucher or contract dealing receipt with the or disbursement of funds an agency acquisition, its or disposal materials, use of services supplies, or of equip- minute, ment or other property any order or decision agency an fixing person or property rights, privi- leges, immunities, duties or obligations any person or group persons____ added).
(Emphasis The County contends that the documents requested do not fall under the definition of “public record” because the itemization of the Cellular One phone bill is not an *7 “account, contract,” voucher or but is either work product or an internal memoranda between non-decision makers.7
The County does not challenge
premise
that bills
paid
by
record,”
for
a county
“public
are a
Carbondale Town
ship v. Murray,
465,
64 Pa.Commonwealth Ct.
its
governmental
of an essential
function.”
1(1)
Act,
66.1(1).
§
Section
of the
65 P.S.
scope
6. Our
Right-to-Know
of review under
Act is limited to
determining
agency's
whether the
request
denial of the
for the desired
just
Act,
information
proper
was for
and
cause. Section 4 of the
66.4;
Getek,
City
394,
§
P.S.
Chester v.
132 Pa.Commonwealth Ct.
3,
(1990).
397 n.
572 A.2d
1320 n. 3
support
7. The amicus
County’s position
briefs filed in
by the
(PDAA)
Pennsylvania
Attorneys
District
Pennsylva-
Association
and the
(PSACC)
nia
State Association of
Commissioners
concede the
argument
that the
public
itemization in the
bills is a
record.
PDAA
argument
and the PSACC
premise
focus their
instead on the
exempt
these itemizations are
for
explore
reasons we will
later in this
opinion.
Publishing
v. Centre
Board
and
Co.
Nittany Printing
Commissioners,
A.2d
Ct.
156 Pa.Commonwealth
Services,
v. Department
Vartan
General
(1993),8
and
(1988),9
for the
Ct.
First, actually compiled Cellu- the itemization itself was Second, Bel- Controller County. lar rather than One or no work with the actual admitted that he did little castro set forth on the merely paid but the amount itemization summary sheet. however, also contends that importantly,
Most inspec- open public is not for examination the itemization decision, fixing form for a it not the basis tion because does itemizations available it concedes would make the rights which under the Act. inspection product is work itemization argument The entire and, thus, it not form the basis of a decision because does record, of the Act. The premised misreading on a ac- in the form of Act between records differentiates vouchers, here, and those the form of as we have counts rights. Nittany Printing minute, fixing order or decision concern- portion address that of the statute Vartan both minutes, fixing rights, rather than the ing orders decisions and the use of reflecting accounts or vouchers documents and funds. public equipment *8 Nittany Publishing request by newspaper a a examine
8. concerned inspect opinion given by its solicitor. legal a to the Commissioners and legal opinion "public was a record” because the held that the not We opinion pre-requisite agency making a was not a to an decision but was agency only not to the decision. "advice” and "essential” information, Vartan, including disappointed requested 9. bidder In memoranda, correspondence about the selection the successful and to release some of Department bidder. The of General Services refused requested stating that it was not discoverable because it information affirmed, record,” "public holding as not a defined the Act. We was lists, compilations correspondence and memoranda are not of facts that normally which sire discoverable under the Act. statistical data
205
Resources,
In Steele v.
Environmental
Department
(1988)10,
Pa.Commonwealth Ct.
A.2d 1337
which the
on
our
point,
cites
its
this
Court
argument
explicitly
recognized
parts
the distinction between the
two
the defini-
of a “public
stating:
tion
record”
Because there is no claim that the document here consti-
“account,
contract”,
tutes an
voucher or
our review focuses
portion
on that
of the definition
“any
which embraces:
minute,
agency fixing personal
order or decision
an
immunities,
property rights, privileges,
obligations
duties or
any person
group
persons.”
(citation
omitted);
Id. at
at 1338
A.2d
see also
Pennsylvania
Association
Children
Adults with
Education,
Learning
v. Department
Disabilities
(1985)
Pa.Commonwealth
Therefore, we hold that trial court did not err in holding bill, including itemization, entire constituted a “public record” under the Act. Steele, requested Department a citizen that the of Environmental (DER) Resources allow examination of a memorandum written an attorney general assistant employee. to a DER DER denied that request and our Court ruled that the memorandum was not a document because the communication was from advisors outside the relating DER projects to DER and does not have characteristic of a individual, fixing decision of an the status because the advisors were not decision makers within DER.
EXCEPTIONS then, telephone the Cellular One exception, some Absent “public meaning within the qualify here as a record” billings 1(2) of the Act. Section Act, however, exceptions delineates
This same section of or, type particularly, of access more to the requirement definition, meeting is not available although document These record.” inspection “public as examination are: exceptions publica- paper, communication or other Any report,
1.
institution, progress or
would
tion of which
disclose
an
in the
agency
undertaken
investigation
result of an
duties;
official
its
performance
document, material, exhibit,
record,
pleading, re-
Any
2.
publica-
access to or the
paper,
or other
port, memorandum
or forbidden
stat-
prohibited,
restricted
tion which
court;
decree
ute law or order or
prejudice
to the
or
operate
document which would
Any
3.
security; or
or
person’s reputation
personal
of a
impairment
would result
the loss
Any
document which
political
of its
subdivisions or com
any
or
Commonwealth
of federal funds.
municipal
or
authorities
missions
state
I.
INVESTIGATION EXCEPTION
Attorney
The
order allowed
District
trial court’s
One itemiza
Task
to redact from the Cellular
Drug
Force
tions,
to “active criminal inves
numbers that relate
It
or Coroner to redact
did not allow
Sheriff
tigations.”
found that
specifically
trial court
any numbers.
neither an
of the Sheriff and Coroner showed
testimony
“any
on-going
existing
eminent risk of harm nor
investigation
jeopar
officials would be disclosed
by the
11-12)
(Trial
original).
(emphasis
court
opinion
dized.”
Sheriff and Coroner do
court noted that “while the
The trial
may
‘criminal
in their work and there
upon
touch
element’
exception relating to
funds
not relevant
11. The
the loss
federal
Js
But,
varying degrees,
exceptions
are relevant.
all
the other
here.
obviously be some risk of harm to them in the performance of
duties,
their
it was not shown that disclosure of the said
cellular telephone billings would affect these exceptions. Sen-
*10
in
sitivity
(i.e.,
the nature of the communication
document or
bills)
phone
is not an
exception.”
enumerated
Id. at 12 n. 3.
The
asserts that the trial court erred in using the
standard of an “active
investigation”
criminal
because the
of
language
the Act
to the
pertaining
investigation exception
does not contain any language
restricting
exception to
active, on-going investigations.
County argues
The
that not
only should the District Attorney
Drug
and
Task Force be
redact,
permitted to
but that the Sheriff and Coroner should
permitted
also be
to redact
the phone numbers called that
institution,
concern “the
progress or result
an investigation
added).
as the Act provides.” (Emphasis
agree.
We
First,
1(2)
requirement
no
exists in Section
of the Act that
the investigation be
In
“active.”
Sullivan v. Pittsburgh, De
partment
Safety,
Public
127 Pa.Commonwealth Ct.
342-43,
(1989),
561 A.2d
denied,
appeal
525 Pa.
(1990),
Further, County argues that because the Legislature has empowered the Sheriffs and Coroners this state with duties concerning investigations that these entities should have the the same telephone redact numbers under
opportunity Attorney and now hold to the District applies standard we Force, i.e., that concern the redaction of numbers Drug Task “institution, investigation.” Newspa or of an progress result exception apply, that for the pers stating counter “institution, progress disclose the bills at issue must telephone agency an investigation result of an undertaken duties____” contend Newspapers its performance of official is disclosed does not demonstrate just because a number “institution, investigation.” Newspa an progress result of County’s hinted at that none of the witnesses even pers assert numbers listing how the release conversations, called, revealing could substance without “institution, any investiga progress result” disclose County’s and that the the officials are involved tion which *11 of documents “envi types are not the simply itemizations v. Dal investigation exception.” field Marvel sioned the (1978) Ct. 393 A.2d Pa.Commonwealth rymple, officers are not relating police to tests for (papers promotion documents, to make a but information used investigation field decision). not find and Coroner’s
The trial court did that the Sheriffs to the trigger investigation calls rose to a level so as telephone do “while the Sheriff and Coroner touch exclusion and stated may ‘criminal element’ in their work and there upon the performance risk of harm to them the obviously be some duties, it not shown that disclosure of the said their was Tri- affect these telephone billings exceptions.” cellular would at n. 3. Neither the Sheriff nor Coroner opinion al Court on wherein call made any specific investigation testified to institution, progress cellular would reveal “the phone their finding the trial court’s investigation.” of an Because result institution, progress “the that the itemizations did not disclose investigation” supported or result of an substantial evidence, we affirm the trial court on this issue.12 denying supported reasoning Sheriff its 12. trial court also phone right the basis that the to redact numbers on Coroner County prove of such that the release of the failed to II. STATUTE EXCEPTION LAW/ORDER/DECREE Privacy
A. Invasion of The County argues allowing public next that access to be an of privacy only the itemizations would invasion not officials but of the called public individuals from phones. right priva cellular acknowledging While that delineated in our cy expressly Pennsyl is not United States Constitutions, County vania that right asserts privacy encompasses rights and embraces various inherent concept assert, of a democratic society. Newspapers however, that presents this constitutional question thus, for the first time before this Court and has waived its make right argument citing this In re Jim Thorpe Borough Protest, Liquor Store 83 Pa.Commonwealth Ct. 478 A.2d (1984). While the not have may specifically argued there is a constitutional right privacy in tele numbers, phone certainly it argument sufficiently inferred this trial for the court to state that the admitted that the right privacy “expressly not set forth either the United Pennsylvania States or Constitutions.” Trial court opinion issue, the trial court did not develop While this we will argument hold has been waived as Newspapers Thus, suggest. we must consider whether concerns justify denying the opportunity monitor the conduct of using government officials tax facilities at payers’ expense.
The purpose Right-to-Know Act is to scrutinize *12 officials, of public the acts making the officials in accountable their of public use funds. the the Heralding importance of Act, goals of the recognized this Court that “[considerations of privacy confidentiality, yield public’s right must to the to about and know examine into its servants’ of performance duty.” Kanzelmeyer Eger, 495, v. 16 Pa.Commonwealth Ct. (1974). 500, 307, 329 A.2d 310 Allegany Culver v. Port investigation "operate prejudice impairment would to the ... of personal security.” exceptions separate This combines two enumerated improper an application which is of the Act.
210
(1991),
401,
Id. at
598 A.2d
that,
decision,
However,
this Court reasoned
in a recent
a
affirmatively
although
legislature
failed
establish
Constitution, it
Pennsylvania
under the
personal privacy right
right
light
a
existed
could be inferred that such
Michel,
Co. v.
precedent.
Publishing
Times
cumulating
(1993).
Times
211
a public
by private
to
personal
provided
agency
information
Here,
information
only arguably private
individuals.
is
which telephone
the itemization which reveals
numbers tax
Publishing
Times
Thus,
dollars
to call.
does not
spent
were
telephone
here
require
kept
be
confidential.
Call,
Inc. v.
Finally, Morning
Lower Saucon Town
ship, (1993),
B. Wiretapping and Electronics Surveillance Control Act contends that and Elec Wiretapping Act, §§ tronic Surveillance Control Pa.C.S. 5701-5781 (WESCA), prohibits inspection examination the records requested by Newspapers. prohibits the WESCA unautho rized registers.” pen use of A “pen register is defined as a “device which records or decodes electronic or other impulses which identify transmitted, numbers dialed or otherwise communications, with wire respect telephone on the line to WESCA, which the device attached.” Section 8 of § 5771, prohibits Pa.C.S. register the installation of a pen anyone other than law enforcement officer who has prior court for such approval installation. While the does not contend that intend to Newspapers pen register, install a does assert County’s that access itemiza tions has the same effect as installation pen register. of a counter,
Newspapers
asserting
County’s
that the
references
and the
expectations
WESCA
conversations are
phones
irrelevant here because cellular
op-
admittedly
be scanned
air
which can
on
waves
open
erate
Thus,
that the
Newspapers assert
who so chooses.
anyone
*14
a cause
facts, a
private
prerequisite
cannot be
itemizations
Pub
Harris v. Easton
privacy.
for an invasion of
of action
(1984).
Co.,
141,
Ct.
Id. 327 A.2d at developed by plaintiffs Nagy publici- crux of the tort held that of two or four ty, Superior Court notification parties “publication,” third is not sufficient to constitute with- Thus, privacy. out which there is no actionable invasion of Newspapers, asserts that release to which have wide definition of certainly “publi- circulation would meet the However, the Nagy cation” envisioned court. we note that Nagy also held in order to establish an action for invasion of ... objectional offensive or act must “highly be outrage committed such manner as to or cause mental suffering, ordinary shame humiliation to a sensi- person Nagy, bilities.” Pa.Superior Ct. at A.2d at 704- (citations omitted). The County contends that the situa- tion, here, i.e., Newspapers the release numbers to which readers, have a huge requisite volume creates the “highly *15 However, offensive or objectionable” act. the trial court did County not find that the demonstrated that the release of the “outrage itemizations would suffering, cause mental shame or humiliation to of person ordinary sensibilities.” Consid- ering the entire application Nagy, of hold that County we the failed to prove examination and inspection itemization act,” would be to a “highly tantamount offensive as contem- plated in Nagy.
Next, Barasch in cites County of its support position privacy WESCA establishes a one’s right telephone Barasch, (PUC) number. In the Public Commission Utility conducted a hearing addressing application Bell Telephone’s to provide several new services to its including subscribers “Call- er*ID.” “Caller*ID” allows a to identify subscriber and rec- ord the number of the The incoming call. PUC allowed the Smith, use but Judge writing Court, majority of this held that rights “Caller*ID” violated the privacy Pennsylva- nia guaranteed citizens the Pennsylvania Constitution. Judge Pellegrini in part concurred and dissented in part, joined by McGinley, Judge holding that “Caller*ID” violated only question WESCA and that the constitutional should not have Supreme been reached. The specifically upheld Court Judge Pellegrini’s concurring opinion and did not need to reach the constitutional claims. however, is, the case at hand more County asserts that Barasch, phone calls recipients in that the than
compelling knowledge no all phones from cellular have made records the using phone is such a cellular which that the caller thus, privacy greater. the invasion of called and right that a to making argument assumes inures to the benefit one’s number privacy official on a aby who has been contacted individual Barasch does not line, through public taxes. funded right one’s constitutional claims to encompass option that the “Caller*ID” merely but holds phone number under Because the register” an WESCA. impermissible “pen WESCA, we registers” under are “pen itemizations are not Therefore, holding of Barasch. persuaded expand holding inspection the trial court’s that examination law, order or decree is contrary is not statute itemizations affirmed.
III. PERSONAL REPUTATION EXCEPTION
OR SECURITY
court,
County contended that the
Before the trial
damage personal reputation
itemizations would
release
security
spoke
with
persons
who
impair
Refusing
equate
telephones.
officials on Cellular One
the trial court found that
“personal security”
“privacy,”
with
“impermissible
not have
taint” on the
the itemizations did
an
personal
damage
reputation
of the itemizations that would
face
*16
with
security
persons
spoke
or
of
who
impair
(Trial
13).
opinion
on the cellular
court
phones.
officials
Inc., 18 Pa.Common
Philadelphia Newspapers,
In Moak v.
(1975),
599,
Pennsylvania
after the
wealth Ct.
336 A.2d
a
cor
report alleging widespread
Crime Commission issued
Philadelphia
Department,
in the
Police
ruption
Philadelphia
access to the
records.
Newspapers
payroll
demanded
We
access, holding:
of
grant
affirmed the trial court’s
[Tjhat
under the Act to determine
duty
only
it is our
operate
records themselves would
whether the
reputation,
or
of
not whether their
prejudice
impairment
harmful conse-
might
use with other information
have such
sought
incapa-
records here
are
quence.
payroll
Since
they
excepted
of
harm
are not
from disclosure.
ble
such
Id. at
In
v.
School
Pa.Common
(1975),
requested
Ct.
[F]or
‘personal security’
usurp
legislative prerogative
would
Assembly.
the General
must assume that the legisla-
We
ture would have used clear and
had it
appropriate language
intended
concept
personal security,
such
result. The
believe,
we
involves
from
harm rather
protection
personal
than
from an invasion of
To hold other-
protection
privacy.
Moreover,
wise would render the Act nugatory.
we have
security
held that for records to fall within the personal
exception they
intrinsically
merely
must be
harmful and not
capable
being
purposes.
used
harmful
Id. at
Because hold Attorney, Drug we the District Task Force, Sheriff and Coroner have been able to redact telephone concerning “investigations,” numbers we with trial agree any court that risk to personal security reputation has been removed. The do not in remaining themselves trigger any security risk of harm to individual Therefore, reputation. we affirm that portion of the trial holding court’s the requested itemizations do not fall personal seeurity/reputation under the exception.
CONCLUSION requested The documents this case are like two sides of a coin; one side of the coin concerns the public’s right-to-know *17 of the the other side expended, tax dollars are how their calling on persons called or coin concerns These interests must telephones. Cellular One publicly-owned show that the County has failed to be balanced. The itemizations, concerning than those other on the Cellular One interest or trigger any privacy such as to investigations, were Accordingly, personal security reputation. impair would modified, affirmed, in accor- as of the trial court order foregoing opinion. dance with
ORDER 1994, NOW, order February, 24th day this AND Washington Pleas of the Court Common modified, affirmed, as hereby matter above-captioned foregoing opinion. with the accordance KELLEY, dissenting. Judge, I respectfully dissent. or Voucher
I. Account “account”, clearly meaning of expressed court has This does not mean. what it means and what it Legislature used the are convinced that when We in the definition of a record it intend- word “account” meaning of a record of debit and that word to have the ed during period fiscal entries to cover transactions credit “account” to mean a and did not intend the word time of facts events. statement Commonwealth, v. 29 Pa.Commonwealth Butera (1977). A.2d
It voucher would also exclude statements of follows that a The itemization of the facts events facts and events. under court’s caller are therefore excludable pen billing prior decision. facts and
Clearly, the itemization sheets are records of calls, not within numbers and time. Such is phone events meaning accounts or vouchers. legislative Privacy
II. Constitutional *18 The itemization sheets should not be available for disclosure, guarantees as it would violate the constitutional Constitution, I, § under the art. privacy Commonwealth’s to Obviously, talking access information about who is to whom, even without direct to the contents of what access they saying, powerful good are can be a tool for either or bad ends. case do not hesitate to any say we caller and the he calls and person expect are entitled to as much in privacy thay talking the fact are to one another as other____ they say what to each The legislature explicitly Commonwealth has recog- by nized that information accessed the telephone company domain, thereby does not enter the public or the field of scrutiny to the open police. Beauford, 253, 266,
Commonwealth v. Pa.Superior Ct. (1984). A.2d 789-90 The Court went on further: any could, If law enforcement officer with or proba- without ble or cause even reasonable use a suspicion, pen register authority on his own every record number dialed any residential, business, citizen in Pennsylvania from a government phone, the pen register clearly could become a powerful weapon threatening only invasion not of the indi- vidual’s intimate privacy, but also his in- political liberty, associate, cluding rights views, his to express his even to think in ... freedom. have led us to the conclusion expectation an individual’s reasonable, numbers he calls is legitimate, and therefore constitutionally protected against government surveillance and intrusion without probable cause. 268-69,
Beauford, Pa.Superior Ct.
III. I deny would the disclosure There is a third reason statutory exemption as specific That is itemization sheets. majority court and the embracing investigation. trial “Investigation” The term opinion are too restrictive. “criminal”, “ongoing”, “complet- Act modified majority imply. ed”, opinion court and the as trial government. our Investigation all offices of undertaken judicial may notice be taken county government, applied As enumer- all officers thereof. Each and duties of power a cellular has County utilizing phone in Washington ated office Attorney, The District and duties. investigative powers Coroner, Sheriff, Force, admittedly by the Drug Task *19 powers. majority investigative have exercising hybrid County I believe the Commissioners duty investigate have a legislative function of and executive ideas, legislate administer how and what to concepts, and/or Services, Center, Washington and the EMS with the Health should investigation would and County government. Such Commissioners, communicating among the three vary counsel, formally informally, seeking and their respective with variety beyond or other officials from a of citizens input investigate is no less Washington. duty Such Assembly and Executives the Common- than the General mak- respective legislative pursuing policy wealth their ing decisions. complete responsi- have a
Additionally, the Commissioners County personnel by permanent membership of all their bility Salary investigation Personal must be on the Board. confidential. information would thwart the supplemental
To disclose such discharging responsibili- complete investigation free and ty by County Officials. reasons, I the trial any of the above would reverse
For one deny the inclusion of the information. supportive court