Tribune-Review Publishing Co. v. BodackTribune-Review Publishing Co. v. Bodack
Lead
OPINION
The Tribune-Review Publishing Company and Andrew Conte, a journalist employed by the Tribune-Review, (“Appellants”) sought to obtain, under the act known as the Righb-toKnow Act,
Appellants filed a timely appeal of the City’s denial of its request to the Allegheny Court of Common Pleas pursuant to
“Public record.” 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: Provided, That the term “public records” 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; it 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, or which would operate to the prejudice or impairment of a person’s reputation or personal security, or 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.
The Commonwealth Court determined that because the subject telephone bills were clearly “account[s or] vouchees] ... dealing with the receipt or disbursement of funds by an agency,” despite any reimbursement made by the council members, the requested bills fell within the general definition of “public record.” However, the court also determined that the disclosure of telephone numbers of persons placing calls to, and receiving calls from, the council members could compromise the privacy, reputation, or personal security of those persons to whom the telephone numbers
In its analysis, the Commonwealth Court first noted a distinction between cellular telephone calls made by council members, and the calls made to council members by individuals, both of which sets of calls would be notated on the cellular telephone bills. The court stated:
Cellular phones are different from traditional phones in that, when a call is made to a traditional phone, the person placing the call generally pays for the cost of the call and thus the number of the person making the call would not appear on the telephone bill of the person receiving the call. However, with cellular phones, the persons receiving a call are still using “airtime” even though they didn’t initiate the calls and they are therefore charged for the calls. Thus, because there is a charge for the call, the incoming number is often displayed on the cellular phone bill. This fact ... [establishes that] the private citizen, unknowingly, ... provides] information to the public agency by the act of initiating the call to the cellular telephone of a public official without any notice that his/her identity will be disclosed. As in Times Publishing, [2 ] in this case we believe that private citizens have a legitimate and reasonable expectation that their phone numbers will remain private and that disclosure of these numbers would constitute an unwarranted invasion of personal privacy outweighing any public benefit derived from disclosure. For these reasons, the numbers of incoming phone calls in this case are not subject to disclosure.
Tribune-Review Publishing Co. v. Bodack,
The Commonwealth Court also considered that one who has been called on the telephone by a public official risks damage to his or her reputation, once the fact of this call is made public. The court stated:
Furthermore, the reputation of the person called must also be considered. [In particular, the court must] address the damage to the reputation caused to private citizens whose numbers are released to the public when, without notice or warning, they are called by a public official on a cell phone or perhaps even mistakenly called if the public official dials a wrong number. It is a fact that the knowledge that certain people had contact with certain public officials could and would be used at the very least to damage a person’s reputation. Such damage can be measured only by the interpretation placed on the release of that information and its perceived connection to the political, business, marital, competitive or other interests of the person .receiving the call. It is not enough to only weigh the importance of discoveringthe public official’s use of public funds and public equipment. Rather, the request for this information must be balanced by weighing the rights 'of innocent private citizens who have no way to protect themselves from an •invasion of their personal privacy when they are called on the telephone by a public official and, by the mere act of answering that phone call, [ ] have their identity disclosed by having their land phone and/or cell phone telephone number and/or location published.
Id. at 407-08.
Finally, the Commonwealth Court addressed the issue of personal security, noting the particular concern of the City that “the records requested would include constituent calls for which the caller has an expectation of privacy and the revelation of which would expose those constituents to possible harassment and retaliation. For example, a constituent may call to report illegal activity of a neighbor.” Id. at 408 (quoting an e-mail sent by the City Solicitor that was included in the record).
We accepted review of the Commonwealth Court’s decision, limited to the following two issues:
1. Are itemized cellular telephone bills of an agency open for public inspection under the Right-to-Know Act?
2. Do the personal security and privacy exceptions in the Right-to-Know Act create legal defenses to access that need not be supported with substantial evidence?
Under the Right-to-Know Act, public records are accessible for public inspection and duplication.
Thus, the Commonwealth Court correctly concluded that, in general terms, telephone bills paid by an agency are public records, even when the agency receives reimbursement for calls made from the recipient of the agency-purchased telephone. The fact that the agency may have received reimbursement for expenses does not change the fact that the agency has disbursed public funds for these expenses, rendering the agency’s activity subject to public inspection under the Right-to-Know
However, as the Commonwealth Court correctly observed, the statutory definition of public record contains an exception for records the disclosure of which “would operate to the prejudice or impairment of a person’s reputation or personal security.”
Here, Appellants contend that the record establishes that they have shown that the requested telephone bills are public records and that Appellees have failed to satisfy their corresponding burden of showing that the reputation or personal security exception applied. More specifically, Appellants argue that the record is devoid of evidence that the possessors of the telephone numbers listed in the requested bills would suffer any impairment of their reputation or personal security, with the possible exception of one specific unnamed individual referred to by Council Member Bodack who had called the council member to complain about a neighboring house where drug trafficking was taking place.
Again, we agree with Appellants that they have shown that cellular telephone bills of an agency are, absent a statutory exception, public records subject to disclosure under the Right-to-Know Act. However, we reject Appellants’ argument that the statutory exception does not apply unless the agency establishes, with specific evidence as to each piece of information or data, that the exception has been met. Quite simply, we have never held that the requisite balancing test is utilized only after the agency has established, through particular and item-specific evidence, that the challenged information in an otherwise public record definitively meets one of the exceptions set forth at
In Sapp Roofing Co. v. Sheet Metal Workers’ International Assoc.,
Thus, in Sapp Roofing, a plurality of this Court recognized that general categories of information (i.e., names, addresses, social security numbers, and telephone numbers) could be excluded from public release if the balanced tilted in favor of non-disclosure. Notably, no justice participating in Sapp Roofing determined that the agency was required to prove, with respect to each individual name, address, social security number, or telephone number, that disclosure would operate to the prejudice or impairment of a person’s reputation or personal security. ■
In Pennsylvania State University, supra, we held that the public had the right to know the names, salaries, and service histories of state university employees who participated in the Commonwealth retirement fund; however, the required disclosure did not extend to information “pertinent to” a person’s “personal security,”
Based on the plurality holding in Sapp Roofing and the majority holding in Pennsylvania State University, we conclude that the Commonwealth Court appropriately balanced the interests identified in the record before it, and properly held that the cellular telephone bills may be disclosed once the telephone numbers listed on those bills have been redacted. The Commonwealth Court correctly concluded that while, initially, the telephone bills were public records subject to disclosure, as they were financial records of a public agency, they nevertheless included information that could “potentially impair the reputation or personal security of another.” Pennsylvania State University, supra at 538 (emphasis added). Moreover, the court did not err when it determined that such “potential impairment outweighed the public interest in the dissemination of the records at issue.” Id. Here, no strong public interest in the disclosure of individual telephone numbers is apparent from the record. Indeed, Appellants have failed to set forth any cogent argument that the disclosure of the telephone numbers in the requested cellular telephone bills would serve a strong public function, whether those telephone numbers were possessed by individuals, businesses, or other entities.
Certainly, the public has an interest in monitoring how public officials use public property, and one can make an argument that the disclosure of telephone numbers called by public officials with publicly provided equipment may be important, in the appropriate case, to allow the public “to discover information about the workings of government” and to achieve the laudable goals of “transparency and public access regarding any expenditure of public funds.” Id. at 533. However, the strong intrinsic interest of the possessor of telephone numbers to privacy, reputation, or personal security may not be lightly set aside; and the agency opposing disclosure of such personal information is not, under our case law, required to prove item-by-item that each person or entity who may be affected will potentially suffer a threat to privacy, reputation, or personal security.
Ultimately, the question here is whether the privacy interests of the possessors of
Notes
. Act of June 21, 1957, P.L. 390, as amended,
. In Times Publishing Co., Inc. v. Michel,
. At trial, Council Members Bodack and Burns each testified that some of their constituents had called them about illegal drug activity. They expressed their concerns that these constituents would be subject to harassment or more serious retaliation should their telephone numbers be disclosed.
. In the new Right-to-Know Law, the General Assembly has also recognized that specific types of information should not and, under the law, will not be subject to disclosure. Section 708(b) of the Right-to-Know Law,
. Act of August 15, 1961, P.L. 987, as amended, 43. P.S. §§ 165—1—165— 17.
. It is not difficult in our current age of technology to use a telephone number to obtain further information about the possessor of that number, including name, address, and other personal information.
Concurrence Opinion
concurring.
Although I concur in the result reached by the majority, I have some differences with its reasoning.
Primarily, I would accord more weight to the public’s interest in disclosure of what is facially a public record. While the majority describes such interest as “weak, perhaps non-existent,” Majority Opinion at 269,
At first glance, the question of whether the public should have access to the toll-billing telephone records of public officials under the Right-to-Know Law seems to answer itself. The public has paid for the telephone calls; the numbers called have been recorded on the bill that the public body has paid; the public should have the right to learn the identity of the person called by the public official.
North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders,
I would adopt the New Jersey approach and join the result in the present case, because I find a sufficient specific showing to be lacking.
. I also differ with the majority's finding that disclosure would be “arbitrary” in light of suggested differences between land-line and cell phone bills. See Majority Opinion at 268,