*1 A.2d George JONES, Appellant
v. PENNSYLVANIA DEPARTMENT OF PROBATION PAROLE, Appellee.
AND No. 76 WAP 2002.
Supreme Pennsylvania. Court of 21,
Feb. 2003. 21,
Reargument April Denied 2003. George Jones, Pittsburgh, Jones, for George Appellant. Campolongo, Robert PA Harrisburg, for Board of Probation Parole, Appellee.
ORDER PER CURIAM. NOW,
AND day 2003, this 21st February, the above captioned appeal quashed untimely. COMPANY, Appellee
TRIBUNE-REVIEW PUBLISHING WESTMORELAND COUNTY HOUSING
AUTHORITY, Appellant. Supreme Pennsylvania. Court of
Argued March 2003.
Decided Oct. 2003. *4 Adams, County Authori- Mike for Westmoreland ty, Appellant. Barber, Gutnick, for Pittsburgh, D. H. Yale Tribune
Ronald Co., Appellee. Pub. Review C.J., NIGRO, CAPPY, CASTILLE,
BEFORE: SAYLOR, NEWMAN, LAMB, EAKIN and JJ.
OPINION NEWMAN. Justice County Housing Authority (Housing
The Westmoreland Authority) appeals the decision the Commonwealth Court holding confidential a between Housing Authority’s complainant ending and a insurer feder- al civil suit record to disclosure under (Act).1 Right-to-Know Act We conclude Com- correctly monwealth determined and, therefore, record affirm the Order of the Com- monwealth Court. AND
FACTS PROCEDURAL HISTORY underlying The facts An appeal undisputed. are em- ployee civil complaint against filed a in federal district court alia, Housing Authority alleging, inter that the Executive Housing Authority subjected gender Director of the her insurer, discrimination and a hostile work environment. The (HAR- Exchange And Redevelopment Insurance IE), a reciprocal exchange insurance up subscribing made housing Commonwealth, authorities within the defended the Housing Authority and its Executive Director.
HARIE provided both defense and indemnification federal action even though the insurance contract between HARIE authority and the arising did not cover claims out of race, pertaining “discrimination to age, (Policy or sex.” en- FD-1.) only dorsement Not HARIE authority, did defend the HARIE $1,000 required declined to collect the by deductible policy.2 Pursuant insurance policy, terms HARIE retained exclusive control of A the defense. settle- ment was brokered HARIE payment that involved the 21, 1957, 390, 212, amended, 1. §§ Act of Jeme P.L. No. 66.1- P.S. 29, 2002, Right 66.4. Know Act was amended the Act of June P.L. Right effective December 2002. The sections of the Know Opinion Act referenced in this reflect the text of the Act in existence at the time the suit was filed. HARIE, Attorney-in-Fact Volpe, Charles testified it was 2. practice collecting HARIE to waive the deductible when an target Executive Director was the claim. *5 and the complainant to money sum the an undisclosed copy agreement. No reciprocal non-disclosure execution to provided has settlement been of the confidential to At the Housing Authority or its Executive Director. the lawsuit, authority paid premium the the HARIE a time of million loss. There $3,150.00per year coverage per for of one as a premium record was raised is no evidence on the of the lawsuit settlement. result suit, Tribune- Following and dismissal of the the settlement Authority make the docu- requested Housing Review inspection. to for related available it ments to comply request Authority to with the Housing The refused opinion the lawsuit settlement because was of (1) confidentiality agreement; a governed by documents were: (3) (2) HARIE; did not possession and in the control funds; (4) not were expenditure public involve the also Authority “public Housing records” under Act. The produce to the settle- argued required that it should con- confidentiality provision because the ment documents within was material to the settlement tained Essentially Housing Au- abrogated. and should not be promoting in settle- thority argued that interest conducting ments, coupled efficiency with the need business, in disclo- government outweighs interest sure. Housing Authority supply copy to
After
refused
appealed
denial to
Tribune-Review
agreement,
Pleas,
County
of Common
which
the Westmoreland
Court
Call,
Township,
Inc.
Morning
on
v. Lower Saucon
relied
(1993),
agree-
DISCUSSION question The as to municipality whether a must dis particular close a public document to the has been resolved by Assembly the General in favor of the public by balancing the fundamental against govern interest in disclosure mental interest in confidentiality. right The common law party inspect public was by records codified the General Assembly in 1957 as Right-to-Know Act. The intent of the Act is to the availability government ensure of information to citizens of the Commonwealth by permitting access official Thus, § information. 65 P.S. 66.2. in recognition of the funda mental know, nature of the right Tribune-Review had establishing requested burden material successful, was a If record. then the Authori ty, as public entity, had the burden of proving record should not be disclosed. matter,
In the instant was sued in federal court one of its employees a civil action in Western District Pennsylvania. Housing Authority represented by HARIE, which reached a with employee, prompting dismissal the federal action. provides that,
Section 2 of the Act “Every public record of shall, times, an at agency open reasonable for examination of Penn- by any citizen of Commonwealth inspection and Act Further, of the § Section sylvania.” 65 P.S. 66.2. municipal authority or as, “any agency an State defines pursuant to a statute which organization similar created organization performs or has that such in substance declares performance government an essential purpose for its 66.1(1). dispute § is no 65 P.S. There function.” as agency within this Commonwealth conclude, did the Act. We also that term is defined Court, agency HAR.IE not an -within Commonwealth The Act on to goes to the Act. this Commonwealth dis- receipt record” with reference “public define a funds, procurement of materials bursement affecting services, substantive and actions 66.1(2). only expressly exclud- rights. records 65 P.S. only definition are those “public record” from the Act’s ed *7 “investigative of the records” purview that within come “statutes, P.S. and exclusions. 65 and orders decrees” 66.1(2). § an of provides “every public Act that record § for examination. 65 66.2. be available P.S.
agency” shall as is Housing Authority agency, is an that term Because the Act, if the upon it incumbent us determine defined in the to that Act. “public at issue is a record” document be a document outside deems It asserts Act and unavailable for disclosure. purview of the possession of the documents in the litigation that settlement “public of its risk insurer are records” Attomey-in-Fact meaning of the Act.3 within the 66.1, Act, a liberal 1 of the 65 P.S. constitutes Section a applies range “public record” that it wide definition of relating information to disburse- of that contain documents agency funds an action of an that fixes public ment of The terms of the settle- rights obligations of individuals. 341, Woods, (1958), Wiley A.2d 844 this Court 3. In v. 393 Pa. 141 Commonwealth, expressed policy of this that it articulated mem- by Assembly, records be available to all the General that populace. general bers of the
669
action,
upon
ment of a
civil
acts
federal
which are based
of
and
color of
employees
its
under
law,
only
requirements
state
can
fall within the disclosure
so,
“public
Act
notwithstanding
as a
record.” This is
confidentiality agreement,
agree-
inasmuch as
ment
at issue involved conduct of
in its official
Therefore,
capacity.
litigation
settled the
liability
entity by
involved
release from
one
its employees
public entity
for an act
or omission of
official capacity,
“public
meaning
and is a
within
record”
Call,
Morning
Act. See
Inc. v.
City
Auth. of
Allentown,
(Pa.Cmwlth.2001).
Numerous courts in
country
have
determined
involving
settlement document
public body
that has acted
within its official capacity
relating
contains information
public’s
conduct of the
business. See
ex rel.
State
Cincinnati
Enquirer
126,
(2002)
Dupuis,
v.
98
St.3d
781
Ohio
N.E.2d 163
(proposed
city
Dept,
between
record);
Guy
Justice is
Publ’g
Gannett
Co. v. Univ. of
Maine,
(Me.1989) (settlement
agreement with
record);
Withrow,
former coach is
Daily Gazette Co. v.
110,
177
(1986),
W.Va.
with insurance (which adjusted often based premiums are premiums ance with a example, For when faced experience). claims upon Publ’g a Florida court in Miami Herald similar fact pattern, Collazo, (Fla.Dist.Ct.App.), cert. So.2d Co. denied, (Fla.1976) observed: 342 So.2d court, of request trial at indicates the record agreement, terms of the settlement
parties, ordered City Miami for implied liability part on the of the of which officers, were not to be made police one of the actions of in the not only shown record public. The reasons preference were the making settlement terms [Appellant’s] of the not to do so.... parties and is of right know the terms of of the compelling because the nature particularly here i.e., alleged litigated, misconduct.... These being [] issues City monetary liability for the created substantial issues future, for the which costs and its insurance rates influenced Moreover, by taxpayers. the activities must be borne nature, are, newsworthy. It very their complained about such as these that freedom matters particularly kept none open should be communication issues or facts become obscured. real civil rights federal
The terms the settlement conduct action, upon which action based contains information related to employees, and its is, there administration the business of at is related to fore, record. The settlement issue law, affecting the agency, under color of state conduct litigation employees. of its That rights one conduct, contains a “personal” as as “official” involves well clause, not nature of the confidentiality does vitiate may manipulated “public term record” document. The provided by the General expand specific exemptions Assembly. brought in the civil action instant matter Rights Act of 1964 to Title VII of the Civil *9 1983, amended,
addition to 42 U.S.C. as provides which follows: who,
Every person statute, under color of any ordinance, regulation, custom, or usage, any Territory State or Columbia, the District of subjects, or subjected, causes to be any citizen of the United person States other within the jurisdiction thereof to deprivation of any rights, privi- leges, or immunities secured laws, the Constitution and shall party law, be liable to the injured an action at suit in equity, or proper other proceeding for redress. statutory language indicates that an essential element
of an action proof hereunder is that the defendant acted under color of state law. It is axiomatic that there must be state action prevail because the statute does not entirely reach private action, conduct. This state which litigation, led to which in turn to a led terminating that litigation, is conduct affecting of the employee involved. Authority argues that it did not author or sign issue,
ize
the document at
nor did it ever see or
possess
However,
the document.
we
lack
believe
possession of
existing
writing by
entity at the
request pursuant
time
not,
by itself,
the Act is
question
determinative
writing
whether the
ais
“public
subject
record”
A writing
disclosure.
is within the
ambit of the Act if
it is
to the control of the agency.
See, e.g., Carbondale Township Murray,
64 Pa.Cmwlth.
(1982).
If
preparation
writing,
such as
litigation
document,
by an attorney for an agency
byor
an attorney-in-fact for
agency’s
insurer
not viewed
as preparation by
agency, any
public entity could thwart
required by
disclosure
the Act
having an attorney or an
insurer’s attorney prepare every writing
entity
keep
Hence,
wishes to
confidential.
“agency possession or
control is prerequisite to triggering any duties under the
[Freedom of Information
Kissinger
Act].”
v. Reporters Com
mittee,
136, 151,
(1980).
U.S.
100 S.Ct.
incorporate some Id. at requester.” reach FOIA beyond the documents J., dissenting). (Brennan, concurring and 159, 100 S.Ct. *10 Pennsylvania of Civil 4009.1 of the Rules Pursuant to Rule action], party in a civil a is [involving discovery Procedure if its requested they to are within documents required produce rule, In the custody construing or control.” “possession, posses- a narrow reject “physical of courts the Commonwealth test, party focusing subpoenaed instead on whether sion” of in legal custody control the documents right has a to Hence, compliance us if the before involved question. matter request a to the discovery request pursuant rather than with Act, justify to would unable produce agreement question. failure to the settlement newspaper for a re- Township, reporter In Carbondale to township available that certain officials of a make quested him, township’s cancelled inspection copying, township accounts. payroll on the road The checks request. affirming In of the officials decision denied court, trial which held the cancelled checks were Act, held the Commonwealth Court records may not disclosure of records under public entity that a evade showing possession lack of actual of the records. its control court said: The may possession actual of its Township not have
While checks, production has in that cancelled it control over their to produce it can the bank them. authorize matter, Similarly, in instant while the Id. at 1274-75. may possession not actual of the Housing Authority have production. it has over its agreement, settlement control Housing Authority Attomey-in-Fact testified that It to follows that copy agreement. entitled Housing Authority may either authorize HARIE to make require provide it to document available Tribune-Review Housing Authority, which will make the copies then document available Tribune-Review. Housing Authority that, if argues further document Tribune-Review,
is made
confidentiality
available to
then the
will
persons,
clause
be violated
of
two
neither whom are a
party to
argument
specious given
this action. This
agreement
settles
lawsuit between the
employee.
many
and its
We
note
of our
States
sister
have
a provision
litigation
refused
enforce
in a
settlement
prohibiting
agreement
disclosure
the terms
provision
where such a
to a
contrary
freedom of
Findlay
information statute. See State ex
Co.
Publ’g
rel.
Comm’rs,
Hancock Co. Bd.
80 Ohio St.3d
684 N.E.2d
(confidentiality
provision
by county
entered into
preclude
civil
lawsuit does not
disclosure under Public Records Act and fact that
no
board
longer
possession
had actual
did
duty
agreement);
relieve
to disclose
Des
Indep.
Moines
*11
Cmty. Sch. Disk Pub. Records v. Des Moines
&
Register
Co.,
(Iowa 1992) (settlement
Tribune
agree-
Next, complains that the Common- wealth Court precedent failed follow the established in Dynamic Student Servs. v. State Sys. Higher Educ., (1997). 548 Pa. 697 A.2d 239 Dynamic Student (DSS) Services a was dealer in used textbooks. It both asked Millersville West Chester supply registra- Universities to and approved tion course material so might information that it anticipate Chester, future student needs. West after first denying data, request for registration DDS all supplied did not Although it West Chester requested.
the information information, an with the compile procured it course bookstore, organization, to DDS non-profit supply campus supplied reg- requested. information Millersville with the DDS, provide information on data to but refused to istration compile did not such materials because the school course pursu- suit to obtain the information information. DDS filed that, although state the Act. This Court concluded ant to subject to Acts disclosure agencies universities were state Act, university required, under the requirements, was concerning required textbooks and produce information part had in university found that the no materials. We course solicited, ordering selling of textbooks neither on materials. Ulti- compiled, nor information course retained that, non-profit organi- fact mately, we concluded university required operated zation that bookstore university carry closely out its stated work with order entity independent it as an purposes, did not lose status Act. purposes requirements of the disclosure is an that HARIE Housing asserts Student Dynamic independent entity, like the bookstore Services, is not and that the holds disagree. Act. The settle requirements disclosure We agency relation product at issue ment Authority and HARIE. ship that existed between the in this case agency principal, Actual when exists HARIE, into enter Authority, agent, and an here with manifesta relationship. relationship That exists *12 (2) him; agent act for the by principal tion the shall by agent; and the acceptance undertaking of the the Basile principal. in of the control of the endeavor the hands Block, Inc., (2000). R v. H & 563 Pa. “ his is the agent principal of an bind distinctive power ‘The ” Id. at Anglo-American agency relation.’ of the feature (Second) a). 8A, § cmt. Agency, the (quoting Restatement matter, with Housing Authority contracted In instant the the accepted HARIE it in the event of suit. HARIE defend legal contract for undertaking the ser- the when executed Authority. Housing though, vices with the in instant Even matter, Authority Housing agree did with that not HARIE settled, the suit should be HARIE of the stood in the shoes Authority in Housing prosecuting and functioned as the suit (Second) agent. its Agency 1,§ See Restatement cmt. e. Further, agent power legal “holds alter relations ” the principal persons.... between and third Restatement (Second) of Agency entirely § 12. This is an rela- different from that tionship indepen- state universities and their dently-owned bookstores.
Finally, as have we concluded the settlement record, agreement is a public we exceptions review the provid if, ed Act under the though determine even the document is record, its disclosure is restrained. The exceptions provide is not document record if it discloses investigation, statute, matters relative to an is forbidden by prohibited by 66.1(2). order of court. 65 P.S. is no There prohibited is by averment disclosure statute or that the document to an investigation. Further, relative in the matter, instant the federal district court the civil action against Housing Authority not did seal the terms agreement; the settlement only agreed the parties themselves not to disclose Hence, those terms. disclosure of the settle agreement ment is not by exceptions restrained to disclo sure contained in Moreover, Act. we believe that confidentiality clause contained is void as against public policy to the extent that it conflicts with the text purpose may Act. entity A into enter promises enforceable of confidentiality regarding public rec ords. preparation the settlement Attor-
ney-in-Faet Housing insurer, Authority’s repre- who sented the employees suit, and its in the a public duty performed constitutes agent Housing Authority. HARIE represented Au- thority in and, as its agent HARIE, although rather than the Housing Authority, is the signatory agreement, signature on that *13 Housing Authority. See
placed agent as the there (1945). Crittenden, Pa. generally, Neel suit on of the HARIE defended the behalf The fact that agreement Authority, drafted settlement it, Housing Authority objected to the or that signed the fact that ended lawsuit does alter settlement Thus, the employee. and its between public document disclo- agreement is a settlement to the Act. sure
CONCLUSION by those recognize public policy served important We recognize that encourage settlement. We also measures that may unwilling the terms of litigants to settle unless some confidential, inability that settlement remain may adversely agency confidentiality to ensure municipality or But, specific a ability negotiate its settlement. affect upon relies statutory provisions which Tribune-Review reflect that by this favors policy determination Commonwealth general policy over of encour- records disclosure state, through people of this their aging settlement. The representatives, have in the clearest terms elected stated they important type it is have access to more However, that it confidential. information than remain .those agreement remain to have a settlement confidential who wish recourse; they potential may petition the are not without sealed, protecting it the record thus from court have appropriate circumstances. disclosure clause, Concerning confidentiality Supreme Ohio, matter, said, “a with a similar when faced promises into of confi public entity cannot enter enforceable dentiality preparation records.... regarding insurer, attorney county’s for the agreement by the representing county employees and its in the who is lawsuit, county’s public duty performed by constitutes Co., Today at we Findlay Publ’g N.E.2d 1225. agent.” agreement negotiated on behalf of an hold that agent is a further con- document. We a confidentiality elude that clause contained conflicts with policy Right and the Know Act and *14 that, a confidentiality where policy, clause subverts cannot be enforced. of
The Order the Commonwealth is affirmed. LAMB in dissenting opinion Justice files a which Chief joins. Justice CAPPY LAMB dissenting.
Justice I Because agreement believe the confidential settlement between the County Housing Authority’s Westmoreland insurer, (Housing Authority) Redevelopment And (HARIE), Exchange Insurance complainant and a not a subject record Right disclosure under to Know Law, 66.1, 66.2,11 §§ 63 P.S. dissent. Right
The version of the Act in Know effect in 2000 provided that a public minute, order, decision, record is a account, voucher or of public agency contract which fixes the personal property rights, immunities, or privileges, or duties obligations any person or group persons which subject to a statutory or court-ordered non-disclosure. 65 66.1(2); § P.S. North Hills News Record v. Town McCand- less, 51, 1037, (1999). 555 Pa. 722 A.2d 1039 An agency was any “municipal authority defined similar organization by created to a which statute in declares such organization performs substance that or has 21, 390, 1957, 212, 1. Act of June P.L. No. as amended the Act June 17, 160, 1971, 9, §§ P.L. legislature signifi- No. 65 P.S. 66.1-66.4. 2002, cantly Right 29, amended the to Know Act in Act of ihe June P.L. 663, 100, days, No. provides: effective in 180 7 Section of which "If an request subject receives a confidentiality record that is to a act, executed before the effective dale of the law in effect executed, at the including judicial time interpreta- law, record, govern tion of the shall access to the even if the record is a record, parties confidentiality agreement agree unless all writing governed to be by this act.” Since dispute is the which of this was executed 30, 2000, on October governed under Section 7 access to record is Right to Know Law in effect at that time. 678 governmental essential purpose performance
for its 66.1(1). P.S. function.” 65 Act, available for Right to Know to be
Pursuant must both records rec- inspection, the records Co., Inc. v. Metal agency. Sapp Roofing Sheet ords state Association, 627, A.2d 552 Pa. Workers’International (1998). System Higher v. Student Services State Dynamic In Education, (1997), A.2d 239 this Court 548 Pa. hands of the bookstores from distinguished the records in the of the bank in township checks hands the cancelled 465, 440 A.2d Murray, Township 64 Pa.Cmwlth. Carbondale (1982). correctly There, held the Commonwealth Court checks township control over cancelled retained *15 them. The records produce authorize the bank and could not of Student Services were those the Dynamic sought in university directly were sent bookstores. Since but therefore, were, they not public agencies not bookstores were Dynamic agency. in records of state possession Services, at 242 n. 4. Student 697 A.2d Authority’s that the Commonwealth Housing argument The Dynamic Student Services apply holding Court failed Dynamic Student Services In this court held is well taken. entity public an do not independent that records of become closely public entity works with solely records because in this agency carry purposes.2 out its stated Likewise case, not records of HARIE do become records relationship public agencies. with solely because HARIE’s required, expenditure such as the greater A involvement Call, Morning liability in underwriting found funds 397, 627 v. Township, Inc. Lower Saucon 156 Pa.Cmwlth. A.2d (1993). 297 Call, Morning to a Five
In the settlement was deductible, ($5,000) payable by township. Thousand Dollar Call, Morn in Morning importantly, 627 at A.2d 299. More Dynamic By holding today, majority appears overruled its to have 2. sub Student Services silentio. Call, ing township signatory was a to the Settlement Agreement, and have been for the full obligated would amount Thus, pay. had carrier failed to Id. at 300. Morning required Call funds. disbursement 66.1(2). P.S. Ohio, Virginia, Washington West cases that the
majority cites all involve to which agreements body case, In signer. was a this sign agreement. did see or It that in is also true this presented case there was no evidence had any impact Authority. financial on the Authority’s
The Housing question, second whether the rela- tionship between the and HARIE makes a public agency, HARIE is also negative answered this Court’s Dynamic decision in Services. Student HARIE a reciprocal and, for housing insurer authorities as a conse- quence, closely public agencies works with the it insures. HARIE does a public not become agency any association more than independent bookstores agencies became they because supplied services to at public students universi- Services, Dynamic ties. Student 242. 697 A.2d at In Pennsylvania State University Derry Township District, School (1999), 557 Pa. A.2d held funding mere “[t]he of an institution does not make instrumentality of the state.... Commonwealth programs institutions, funds countless but closely few of aligned government these are so with the as to *16 agencies . entity’s thereof .. [A]n status as an varies, instrumentality depending on issue for which the being determination is made.” Community See also College Brown, v. Philadelphia Pa. 674 A.2d (holding community that colleges are not Right Know they Law “agencies” because are not as that term is act). defined public agency
The test for is entity whether “[a] municipal authority or similar organization created to a which statute declares in that substance such purpose performance has
organization performs or for governmental 66.1. There function.” 65 P.S. of an essential HARIE is from which could be inferred language is no government which would function performing essential Right to Know public agency purposes it a make Law. the creation no the case either suggestion
There designed to shield HARIE or public agency is not from view. When records of, a expended account to, funds are on party and no exclusively in the is maintained then that should agency’s insurer records a public record. be deemed the Common- the Order of Accordingly, I would reverse wealth Court. joins dissenting opinion.
Chief Justice CAPPY SHAULIS, Appellee K. Kathleen COMMISSION, Appellant, ETHICS PENNSYLVANIA STATE Association, Bar Intervenor. The Commonwealth Pennsylvania. Supreme Court of 10, 2000. Submitted Oct. 1, 2003.
Decided Oct.