May 26, 1958
Appeal, No. 59, March T., 1958, from order of Court of Common Pleas of Allegheny County, Jan. T., 1958, No. 207, in case of Lillian R. Wiley v. C. Ronald Woods et al. Order reversed.
David Stahl, Assistant City Solicitor, with him J. Frank McKenna, Jr., for appellants.
Ralph H. Smith, Jr., with him Smith, Smith & Zehner, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
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OPINION BY MR. JUSTICE BENJAMIN R. JONES
Lillian R. Wiley, appellee, petitioned the Planning Commission of the City of Pittsburgh to recommend to the City Council or Pittsburgh that a certain portion of Wallingford Street, located in the Seventh Ward of Pittsburgh, be rezoned from a "C" Residence District to a "B" Residence District.*fn1
On August 6, 1957, the Planning Commission denied appellee's petition because her rezoning request was inconsistent with a proposed zoning of Wallingford Street under a new and comprehensive zoning ordinance then pending before City Council. Subsequent to the Commission's denial of appellee's petition, an
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inquiry concerning the matter was made by a member of City Council.Pursuant to this inquiry a survey of the properties in that portion of Wallingford Street in which appellee was interested was made by a staff member of the Department of City Planning, field investigation notes were prepared and a report made on September 27, 1957 to that member of City Council who had made the inquiry.*fn2
Appellee sought to examine and inspect all data in the Department of City Planning pertaining to the petition for rezoning. The only data in that office consisted of (a) the report made to the member of City Council, (b) the record of the Commission's denial of the rezoning petition and (c) field investigation notes. The latter consisted of pages from an atlas upon which notations were made representing the properties investigated on Wallingford Street, indicating what the investigator learned from conversations with occupants thereof and from observations with respect to the use of each property. The report to the City Councilman contains a complete summary of the field investigation study; the only information contained in the field investigation notes omitted in the report is the identification of the investigator's notations with each particular structure in the area surveyed. Appellee was permitted to examine and inspect the report made to the member of City Council and the record of the Commission's denial of the rezoning petition but not the field investigation notes.
Appellee then instituted a mandamus action against C. Ronald Woods, Planning Director, the Department of City Planning of the City of Pittsburgh and the Planning Commission to permit her to examine all
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the records, including the field investigation notes, in the Commission's file with respect to the Wallingford Street matter. A hearing was held before the Court of Common Pleas of Allegheny County; after hearing, the Court directed appellant to permit appellee to examine and inspect the field investigation notes although the Planning Commission, in its discretion, was allowed to delete the names and addresses of any persons who furnished information to the staff investigator. This appeal questions the validity of that order.
Appellants contend that appellee has no right, either at common law or by statute, to examine the field investigation notes; that the Act of 1957,*fn3 termed the "right to know" statute, excepts from disclosure such data as field investigation notes; that appellee's remedy by way of mandamus is improper. On the other hand, appellee's argument is three-fold: that both by statute*fn4 and at common law the field investigation notes are open to her examination; that the Act of 1957, supra, is inapplicable to her; that the deprivation of the right to examine the investigation notes violates her constitutional right to due process of law.
The Department of City Planning and a Planning Commission in second class cities were created by the Act of 1927, supra. Section 3 provides, inter alia, that the Planning Commission "shall adopt rules for transaction of all business and shall keep a record of its resolutions, transactions, findings, and determinations which shall be a public record."*fn5 Section 8 imposes upon the Commission the duty "to consult and advise with public officials and agencies, public utility companies,
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civic, educational, professional, and other organizations, and citizens ..." in connection with its planning, and that its reports to the City Council "shall be for the information of the public as well as of council ..." Appellee contends that the "field investigation notes" are "resolutions, transactions, findings and determinations" within the language of this statute and, therefore, public records. Appellee's argument in this respect is without merit. Investigation data do not fall within the category of "resolutions", "transactions", "findings" or "determinations" under the statutory definition of public records.*fn6 Such a construction would be a complete negation of the plain statutory language and a misconstruction of both the legislative purpose and intent.
While it is true that our courts have recognized the right to an examination of public records, either under statutory grant or on common law principles (Simon Election Case, 353 Pa. 514, 46 A.2d 243; Commonwealth ex rel. Eagen v. Dunmore Borough School Directors et al., 343 Pa. 440, 23 A.2d 468; Butcher v.
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and excluded from the definition of "public records". Under this statute appellee has no right to an examination of the field investigation notes.
The court below, however, decided that the 1957 statute did not apply to the appellee on the ground that that statute applies only to citizens in general as distinguished from citizens who have a personal or property interest in the examination of public records. In this respect the court below erred. Section 2 of the statute opens public records to examination and inspection by "any citizen of the Commonwealth of Pennsylvania"; Section 3 gives to "any citizen of the Commonwealth of Pennsylvania" the right to take extracts, make copies, photographs or photostats of public records; Section 4 grants the right of appeal from the denial of such right to "any citizen of the Commonwealth of Pennsylvania". f*fn7 Despite the all inclusive character of the statutory language the court below limited the application of the statute to those citizens who have no interest, personal or property, in the examination and inspection of the records. The rationale of this determination was that, since prior to the 1957 statute any person who had a personal or property interest was entitled to examine and inspect public records, the purpose of the statute was to "enlarge the rights of the general public for the examination and inspection of public records" and not to divest or restrict such rights previously vested in persons having a personal or property interest. Such a construction of the statute ignores the plain language of the statute, the state of the law on the subject prior to the statute and erroneously assumed that notes of field investigations were public records open for disclosure to appellee prior to the statute.
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Prior to the enactment of the 1957 statute, the right of a citizen to the examination and inspection of public records was the subject of some confusion.*fn8 Undoubtedly,
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the legislature intended through the medium of the statute a clarification of the right of examination and inspection of public records by all citizens, regardless of their interest or the extent or nature thereof. Within the statutory language is embraced all citizens and not simply those citizens who by some courts might be denied the right of examination and inspection because of lack of interest or legitimate purpose. Neither the legislative history nor the statutory language justify the narrow and restricted application placed upon this statute by the court below. The 1957 statute is clearly applicable to appellee,*fn9 and it excludes from disclosure as "public records" data such as the instant "field investigation notes"; this conclusion is inescapable both by the letter and spirit of the legislative enactment.
Appellee urges that a denial to her of the right of examination and inspection of these field investigation notes deprives her of the constitutional right to due process of law. "Due process of law", while incapable of exact definition, generally means "law in the regular course of administration through courts of justice, according to those rules and forms which have been established for the protection of human rights": 12
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Am.Jur. § 571, p. 264, and cases therein cited.*fn10 Its essential elements are "notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause": 12 Am. Jur. § 573, pp. 267, 268; Com. ex rel. Chidsey v. Keystone Mut. Cas. Co., 373 Pa. 105, 109, 95 A.2d 664; Carter v. Kubler, 320 U.S. 243, 88 L.ed. 26, 64 S.Ct. 1; Ohio Bell Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292, 81 L.ed. 1093, 57 S.Ct. 724; Interstate Commerce Commission v. Louisville & Nashville Ry. Co., 227 U.S. 88, 57 L.ed. 431, 33 S.Ct. 185; Jordan v. American Eagle Fire Insurance Company, 169 F.2d 281, 288. That the principle of due process is fully applicable to hearings before administrative tribunals is well established: Commonwealth ex rel. Chidsey v. Mallen et al., 360 Pa. 606, 63 A.2d 49; Pittsburgh v. Pennsylvania Public Utility Commission, 171 Pa. Superior Ct. 391, 90 A.2d 850.
While "there is no table of weights and measures for ascertaining what constitutes due process" (U.S. v. Witmer, 115 F.Supp. 19, 24, aff'd 213 F.2d 95, aff'd 348 U.S. 375, 99 L.ed. 428, 75 S.Ct. 392), yet each factual situation must be closely examined to determine the applicability of the principle of due process. As the United States Supreme Court has said in Betts v. Brady, 316 U.S. 455, 462, 86 L.ed. 1595, 62 S.Ct. 1252: "Asserted denial [of due process] is to be tested by an appraisal of the totality of facts in a given case". In the present situation the evidence contained in the field investigation noted did not form the basis of any determination, conclusion or decision either of the
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Planning Commission or of the City Council. The investigation was not made nor the notes prepared until after the Planning Commission had denied appellee's petition for rezoning. There is nothing of record to justify a conclusion that the investigation data was furnished to influence or justify any decision, determination or conclusion of City Council or that City Council made any decision based on such data. The notes were simply prepared for and in connection with a report made not to City Council but to an individual member thereof. Appellee's argument that such data did or would furnish the basis for ultimate action by the City Council is not justified by the record. Withholding of the information contained in these notes does not deprive the appellee of any right to seek a zoning change in connection with her property; in fact, the information contained in these notes was summarized in the report to the member of City Council and made available to the appellee. Appellee has not been deprived of any opportunity for a hearing in connection with her proposal to rezone the area in which her property is situated, and full opportunity is open to appellee to test the constitutionality of the zoning ordinance as it applies to her property, an opportunity which would embrace a full and complete hearing.
As the late Chief Justice HUGHES said in Corporation Commission v. Lowe, 281 U.S. 431, 438, 74 L.Ed. 945, 50 S.Ct. 397: "An infraction of the constitutional provision [14th amendment] is not to be assumed. On the contrary, it is to be presumed that the State in enforcing its local policies will conform its requirements to the federal guarantees. Doubts on this point are to be resolved in favor of, and not against the State". While included among the procedural necessities of due process applicable to administrative tribunals
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are a revelation of the evidence upon which the disputed administrative order is based, an opportunity to explore that evidence and a conclusion based upon reason (Jordan v. American Eagle Fire Insurance Company, supra, 288, 289, and cases therein cited) the instant factual situation does not reveal any failure to disclose or any deprivation of an opportunity to explore evidence upon which any disputed administrative order has been based.
Neither at common law, nor by statute (particularly under the 1957 statute), has the appellee the right of examination and inspection of appellant's "field investigation notes" which are clearly not public records.*fn11
Mr. Justice MUSMANNO dissents.
Order reversed. Costs on appellee.