Stein v. Plymouth Township
994 A.2d 1179
Pa. Commw. Ct.
2010
Check Treatment

*1 process lack or notice. Pentlong Corp. end, it be although To this must noted that VIII,

Article Section 8-211 of the Philadel

phia permits Home Rule Charter the dis years, after

posal four it does so

only when those records are not “needful

or useful” in current “anticipated fu

ture” It problematic matters. be destroyed

certain records were City they may proved

when have needful or unpaid

useful with remaining. balances review,

Based on our we reverse the

instant orders of the trial court and rein-

state the orders Board.

ORDER NOW, 2010,

AND day April, this 22nd

the order of the Court of Common Pleas of

Philadelphia County subject appeal to this

are reversed. The orders the Tax Re-

view dismissing Board Francisco Rad- petitions

hames’ untimely review as

reinstated. STEIN, Appellant

Burton

v.

PLYMOUTH TOWNSHIP.

Commonwealth Court of Pennsylvania.

Argued Feb. 2010.

Decided

Reargument Denied June *2 Judge BY PELLEGRINI.

OPINION (Stein) appeals Burton from an Stein order of the of Common Pleas of Court court) (trial County Montgomery affirming Open of the Office of Records decision (OOR) request for denying his (com- entity or names of the individual plainant) Plymouth Township caused initiate an enforcement ac- (Township) to Finding tion. no fault OOR’s the “complaint decision it falls within the trial exemption,” we affirm court’s de- cision.

In the spring Township complaint regarding properties received a by at 111 and 113 owned Stein W. Ger- being allegedly mantown Pike for used for space existing office in violation of regulations. complaint, As a result of the Township initiated an enforcement ac- seeking allegedly illegal to abate use. who Seeking complained, discern any Township for asked and way relating any the com- mencement of the enforcement proceed- ings, limited to including but not written memoranda, correspondence, notes and identify materials that would name of the complainant. Township granted request part by providing him with copies of the enforcement notices dated Stein, Plymouth Meeting, ap- Burton 26, 2007, September 2007. pellant. of his request denied seeking identity of the complainant Rubenstein, Axe, Herbert F. Broad from stating that it was disclosure appellee. of the Righb-to- PELLEGRINI, (Law).1 BEFORE: Know That Judge, pro- BUTLER, FRIEDMAN, Judge, and vides exception that an exists for disclo- Judge. Senior sure of to a records2 of 14, 2008, 708; (1) February Act of under section is not (2) being is not disclosed other Federal State law or Under Section 102 of decree; regulation judicial order 67.102, record” is “Public defined as: (3) by privilege. record, record, section, including a A financial Under that same "record” is de- or local fined as: Commonwealth that: including, noncriminal contends by- erred among things, “complaints other submitted refusing provide him with the name of agency.” because with respect *3 Law, of the the Gen- only appealed

Stein the Township’s deni- eral Assembly chose to exempt only the OOR, al of the name to the “complaint” submitted to the agency, not request, which also denied his stating that the name of person the making the com- complaints are exempt because from dis- plaint.5 More specifically, Stein contends closure under Section of the that had the General Assembly intended to Law, any information in the complaint, exempt complainants names of name, the complainant’s would disclosure, it could have included lan- such exempt also be record itself is (OOR’s guage the statute did in exempt. April subsection 2009 Final De- 708(b)(6) 5.) of termination 65 appealed P.S. 67.708(b)(6).6 court, OOR decision the trial Because the General As- sembly affirmed the cognizant OOR’s decision on was based of the fact that pro se3 reasoning. same appeal persons This fol- names of public records are lowed.4 require- Law’s disclosure Information, er, regardless physical actually form or the OOR stated that Stein was characteristics, that only documents transac- appealing his denial to access of the activity agency tion or of an and that is any person name of who communicated with created, pursuant received or retained Township regarding property. “As set transaction, law or in connection with a above, complaints forth from dis- agency.

business or Therefore, any closure. information in the document, letter, paper, term includes a complaint, including complainant's name book, map, tape, photograph, film or sound would also be because the record recording, information stored or main- (OOR's exempt.” itself April is 2009 Final electronically tained data-processed and a 5.) Determination at image-processed document. 6.That provides: 3. We attorney note that Stein choosing is represent himself. (b) Exceptions. Except provided in sub- (c) (d), following sections are ex- scope 4. The question of review for a of law empt by requester under this plenary. under the Law is Schenck v. Town- act: Center, ship County, Butler 893 A.2d 849 (Pa.Cmwlth.2006). (6)(i) following personal identifica- tion information: argues 5. Stein also that the name of the com- (A) containing A record all or plainant should not be from disclo- number, person's Security Social driver's sure under the Law when the OOR based its number, personal license financial informa- exemption final determination on the for “in- tion, home, personal telephone cellular or materials, notes, vestigative correspondence numbers, addresses, personal e-mail em- reports” exemption and on the for a record ployee number or other confidential "institution, which would reveal the progress sonal identification number. or result investigation.” of an How- ever, the OOR did not base its final determi- (ii) Nothing paragraph pre- nation on either exemptions, only of those name, clude position, the release "complaint sala- exemption.” See ry, compensation payments OOR's actual 2009 Final or other Determination at 5. contract, argues expenses, incorrectly employment employ- also that the concluded that agreement "the name of a ment related contract or ‘complaint agency' length submitted public within of service of a official or an meaning 67.708(b)(17)(i).” added.) Howev- employee. (Emphasis that if the name of Stein contends is exempt a “com- What chose not and it ments protected under Section person “complaint,” Stein only a but plainant” 67.708(b)(6), entitled to then he should be incorrectly deter- the OOR contends How “identity” complainant.8 the names included the statute mined that case, ever, dealing with a we are exemption within complainants containing file some digital document complaints. from access and that is 67.708(b)(6), provision P.S. not, but "with information some to, prevents public Stein cites Section 65 from access under “exempt” it is information when to certain 67.708(17).9 That makes *4 file to which in a document contained “relating to a non-criminal information such allowed. When is otherwise access access, includ exempt from investigation” access-information protected-exempt who filed the of individuals ing the names file, digital in a document is included investigation. prompted the complaint that 67.706,7 Law, the 65 P.S. Section 706 of argues that the name of Stein also allows access to That applies. because complainant the in the document information contained the 908(3) (5) Pennsylvania the and infor Sections with the digital file but (MPC)10 Municipalities Planning Code segregated. redacted mation either argument merit because all com- is without provides: 7. 65 P.S. 67.706 whether plaints are from disclosure agency public that a rec- If an ord, determines investigation they caused the to commence legislative record or financial record or in or not at all. subject whole which is to contains information which is not as well as information access access, agency’s subject response 67.708(17)(i) to the that the fol- grant to the information which access shall by lowing requester deny the subject access and access to to under this act: subject to information which is not access. (17) agency A record of an to subject which is not to If the information including: investigation, noncriminal integral part public rec- access is an (i) agency. Complaints submitted to ord, legislative record or financial record agency separated, be the and cannot shall amended, 31, 1968, July as 10. Act of the information redact from the record 10908(3) (5). (3) and Subsections access, subject not and the which is (5) provide: and grant response access the informa- shall subject agency tion which is to access. The hearings conduct and make The board shall deny to the record if the not following decisions in accordance which is not to access requirements: Information which is able to be redacted. (3) hearing parties to the shall be the accordance with redacts in any by municipality, person affected deemed a denial under subsection shall be timely appear- made application who has Chapter 9. board, any ance of record before and 67.708(c). See also 65 P.S. community person civic or other appear by organizations permitted to argues 8. Stein that "the OOR committed also power re- The board shall have board. concluding the name an error of law in quire persons who wish to be con- that all complainant public appearances writ- parties enter sidered sought by appellant from disclo- ing provided the board for that on forms Right-to-Know requirements under the sure purpose. Law on the basis that the conducted agency’s investiga- when the (5) right parties shall have the to be upon agency’s internal tion was initiated received, represented by and be afford- counsel not evaluation of the information respond present and opportunity ed the upon complainant.” name That right him the to confront witnesses CONCURRING OPINION BY Senior give Judge FRIEDMAN. present him evidence against proceeding and does enforcement I agree majority with anonymous. to remain mit (Law)1 Right-to-Know Law does not re- Among myriad legal other factual quire Plymouth Township (Township) to flaws, ap- fails argument (Stein) disclose to Burton Stein the name involves whether peal the person complained who to the Town- Right- name must be disclosed under ship about alleged Stein’s misuse of his MPC; not the if he has to-Know properties. separately write rights proceed in he has to to offer an analysis alternative that fol- lows, closely possible, that forum. language

the Law. argument Stein’s final The Township initiated a enforce- refusing erred in him to to allow ment action against receiving Stein after complaint review the and view com complaint using that Stein was certain Township’s name because the plainant’s *5 in properties violation of the laws. have been proceedings may enforcement requested, pursuant against properties commenced an the Township give him access to records improper purpose, diminishing the value of disclosing identity complainant. of the properties they such an extent Township the request denied acquired by party could be an interested section exempts Law2 substantially for a reduced He fur price. complaints appeal- from disclosure. Stein persons Records, ther believes that with Open associated ed the Office of which decision, and, Township’s zoning upheld Township’s have office on appeal, further zoning- been involved in Court of Common commencing of Montgomery County Pleas proceedings improper enforcement for that affirmed. Stein now appeals this court. purpose. Just an motive improper as is deny not the reason for infor request I. Section Assembly mation that the General has that, Stein argues although section accessible, deemed an motive be improper 708(b)(17)(i) of the exempts Law com- hind information does exempt not make plaints does to disclosure. not specifically Accordingly, the order of trial court identity. points out that section is affirmed. 708(b)(6) of Law exempts records con- personal information, and,

taining specific thus, Assembly the General knew how to ORDER of specifically the name the com- NOW, 2010, 708(b)(17) AND day April, (i) this 26th of in if it plainant section intend- 67.708(b)(6). the order of the Court of Pleas of Common to do 65 ed so. P.S. I 26, May 2009, Montgomery County, reject dated the clear argument based on language is affirmed. of the Law. argument

evidence and and cross-examine adverse on all issues. witnesses relevant February Act of §§ 67.101-67.3104.

1184 “record,” that, of this means that the requires definition of Law3 701

Section complaint in law, received “public provided by unless otherwise in a noncriminal connection with inspection be accessible record” and, is investigation exempt5 in accordance duplication thus, “public According- not a record.” is Law defines the Law. name of a ly, contained record,” part, “record “public term from access under complaint under section ... ... 708(b)(17)(i). section 102 the 67.102. Section 708.”4 “record,” in part, term Law defines 708(b)(6) II. Section ... that documents a “[^Information transaction that each ex- Despite requirement created, ... retained received or that is the ma- emption separately, be considered transaction, 708(b)(6) business or with a connection jority considers section agency.” 65 P.S. 67.102 activity of the conjunction with section Law added). 708(b)(17)(i). (emphasis majority states that sec- 708(b)(6) “prevents the Law disclo- 708(e) that, of certain information when sure ex- determining a record is whether “[i]n contained in a document or file to section, from access under empt (Ma- access is allowed.” otherwise each ex- apply consider and agency shall 1182) added). op. (emphasis jority 67.708(e) separately.” 65 P.S. emption 708(b)(6) necessarily disagree section added). Therefore, in deter- (emphasis *6 personal relates docu- information received mining whether ments or files to access is otherwise in connection with an allowed. access, each sec- exempt from we consider above, “public As indicated a record” is at- from the Stein’s apart tion others. a “record” that under sec- 708(b)(17)(i) tempt to construe section 708 of the Law. 65 67.102. 708(b)(6) is im- the Law based on section 708(b)(6)(i)(A) alia, exempts, inter proper. record containing “a exempts number, the Law li- Security son’s Social driver’s number, a relating access a “record” non- personal financial informa- cense home, tion, personal telephone criminal cellular or “Mom- addresses, numbers, agency.” personal 65 P.S. plaints submitted email em- statutory ployee on the number or other confidential per- Based anomaly having "public § 67.701. records” that are public. not that, legislature defined I note majority 5.The states that section "public a record that record" exclude "exception” disclosure of rec- exempt rec- "exempt” under section investigation. ords a noncriminal legislature "public record." The ord is not However, 1180-81.) (Majority op. although "public could have defined record” 708(b) "Exceptions," labeled section or local record of Commonwealth setting provision states forth that it is matters "exceptions” forth and then set various "exempt” that Law, from access under the legislature but did not their do referring "pub- back to the definition statutory 67.708(b). Thus, so. The result chosen scheme lic record.” 65 P.S. reiterate, every "public requires is accessible to is that record” the Law disclosure of all records,” avoiding "exception.” "public without public, “exception,” without number.” 65 P.S. sonal identification 67.708(b)(6)(i)(A). file, A document or “record,”

i.e., containing specified “public is not a rec-

personal information

ord”; thus, contrary majority’s

statement, no information in that “record”

is accessible. 708(c) section “exceptions set forth in

states (b) apply to financial

subsection

records, except agency may that an redact portion of a financial record ” [(b)(6)].... subsection 67.708(c) added). Therefore, (emphasis containing person-

a “financial record” 708(b)(6) is,

al information in section ex- information, for the

cept “public

record.” foregoing,

Based on the also would

affirm. *7 Regina WESTON,

Randall A. and

Appellants

v.

ZONING HEARING BOARD OF

BETHLEHEM TOWNSHIP. Pennsylvania.

Commonwealth Court of

Submitted on Briefs Feb.

Decided