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MCMULLAN v. WOHLGEMUTH ET AL. (07/02/73)

decided: July 2, 1973.

MCMULLAN
v.
WOHLGEMUTH ET AL., APPELLANTS



Appeal from order of Commonwealth Court, No. 640 C.D. 1971, in re John McMullan, James Steele and Philadelphia Newspapers, Inc. v. Helene Wohlgemuth, Secretary of Welfare of the Commonwealth of Pennsylvania, and Clarence P. Jenkins, Executive Director of Philadelphia County Board of Public Assistance, and the Commonwealth of Pennsylvania.

COUNSEL

Marx S. Leopold, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for Commonwealth, appellant.

Bruce W. Kauffman, with him David H. Pittinsky, Carl H. Hanzelik, and Dilworth, Paxson, Kalish, Levy and Coleman, for appellees.

Jonathan M. Stein and Douglas G. Dye, amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Roberts

[ 453 Pa. Page 149]

In early 1971, four reporters of the Philadelphia Inquirer (a metropolitan newspaper owned by the appellee Philadelphia Newspapers, Inc.) requested from Helen Wohlgemuth, the Secretary of the Pennsylvania Department of Public Welfare, and Clarence Jenkins, the Executive Director of the Philadelphia County Board of Public Assistance, permission to examine and inspect departmental lists containing the names and addresses of and amounts received by Philadelphia public assistance recipients. The City Editor of the Inquirer made, at the same time, an identical request, by telegram, to the Governor. Both requests were refused.

Thereafter, on February 14, 1971, appellees filed two actions (one in mandamus, the other in equity) in the Commonwealth Court seeking to gain the requested information. The Commonwealth Court, after conducting a hearing, issued a preliminary injunction enjoining the Department of Public Welfare from withholding

[ 453 Pa. Page 150]

    from the appellees a list containing the names and addresses of, and amounts received by, two percent of those people receiving public assistance in the City of Philadelphia. McMullan v. Wohlgemuth, 2 Commonwealth Ct. 183 (1971). This Court, after finding no irreparable harm to the Inquirer, reversed that decree. McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971). Neither the mandamus action nor the equity suit has advanced since the date of our decision (October 12, 1971), and neither is involved in the instant appeal.

During the pendency of the above two proceedings, the Inquirer, through its Executive Editor, John McMullan, formally requested of Secretary Wohlgemuth that the desired information be made available. Secretary Wohlgemuth, in a letter dated July 7, 1971, formally refused to permit the Inquirer access to the public assistance information it sought. The Inquirer appealed this denial to the Commonwealth Court, which, on December 9, 1971, reversed the decision of the Department of Public Welfare and ordered the Department to grant access, as sought by the Inquirer. McMullan v. Wohlgemuth, 3 Commonwealth Ct. 574, 284 A.2d 334 (1971). This Court granted allocatur and issued a supersedeas to preserve the status quo. We now reverse the order of the Commonwealth Court.

We are here called upon to decide whether appellees, either under our common law or under the "Right-To-Know Act" (Act of June 21, 1957, P. L. 390, §§ 1 et seq., 65 P.S. §§ 66.1 et seq.), are entitled to have access to the names and addresses of and amounts received by public assistance eligibles in Philadelphia. Appellees argue in the alternative that even if access is denied under the above theories, the First Amendment to the United States Constitution guarantees them a right to the information they seek. Appellees' contentions, on this record, are without merit.

[ 453 Pa. Page 151]

    but such information shall not be used for commercial or political purposes." Act of August 22, 1953, P. L. 1361, at 1364-65 (emphasis added).

A reading of this 1953 provision readily reveals the marked differences between it and its repealed 1939 predecessor, supra. The law as it existed in 1953 was specifically changed in three respects: (1) Disclosure was not permitted where the information obtained was to be used for "commercial or political" purposes; (2) the requesting party was now required to be an "adult resident of the Commonwealth", rather than merely a "taxpayer" and; (3) the County Boards of Assistance were no longer permitted to disclose the names of those persons receiving public assistance. The prerequisite was legislatively placed upon the "adult resident" to come forward with the name (or names) of a recipient (or recipients) "about whom inquiry is made."

In 1967, the welfare laws were recodified,*fn3 and the following sections included in the new Public Welfare Code:

"§ 404. Regulations for protection of information (a) The department shall have the power to make and enforce regulations:

(1) to protect the names of applicants for and recipients of public assistance from improper publication, and to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance. Upon request by any adult resident of the Commonwealth, the department may furnish the address and amount of assistance with respect to persons about whom inquiry is made; but, information so obtained shall not be used for commercial or political purposes ; and no information shall

[ 453 Pa. Page 153]

    be furnished regarding any person's application for, or receipt of, medical assistance for the aged."

"§ 425. Furnishing information

Upon request by any adult resident of the Commonwealth, any county board shall furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes."

Act of June 13, 1967, P. L. 31, art. 4, § 404, § 425, 62 P.S. § 404, § 425 (emphasis added).*fn4

In supplementing its statutorily conferred regulatory authority, as set out in § 404(a)(1), supra, the Department of Public Welfare adopted Regulation 4143.31 (Department of Public Welfare-Public Assistance Manual):

"4143.31 Request by an Adult Resident of Pennsylvania.

(Does Not Apply to Medical Assistance)

Provided that the information is not to be used for political or commercial purposes, the address and amount of assistance a person is currently receiving are disclosed to any adult resident of Pennsylvania who asks for such information about any person.

In releasing such information, the County Office must be reasonably assured that the person is 21 or over

[ 453 Pa. Page 154]

    and a resident of Pennsylvania; the County Office also takes the following steps:

     a. If the inquirer appears in person, the information in the 'Request' section of the PA. 163, REQUEST FOR ADDRESS AND/OR AMOUNT OF ASSISTANCE, is filled in, and the person making the request signs the form, before the information is disclosed. The 'Reply' section of the form is then filled in.

     b. If the request is made by telephone and the inquirer is known to the person receiving the request and the inquirer knows about the restrictions on the use of information, the information is given over the telephone; otherwise the inquirer is advised to either come to the office or to make his request in writing. When information is given over the telephone, the person giving the information prepares a PA. 163 for file, showing the name of the person making the request.

     c. If the information is requested by correspondence, the County Office prepares a reply in duplicate, always including in any reply that gives information the following excerpts from the Public Welfare Code: . . ."

"Section 483 Penalties. -- 'Any person knowingly violating any of the rules and regulations of the department made in accordance with the Article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine, not exceeding one hundred dollars ($100), or to undergo imprisonment, not exceeding six months, or both.'" (emphasis added.)

In addition to Regulation 4143.31, the Department has also adopted Regulation 4142, which, in full conformity with the 1967 statute it implements (§ 404(a)(1), supra), forbids disclosure of the "[ n ] ames of applicants and recipients " of public assistance. See also Regulations 4143 et seq. Department of Public Welfare-Public Assistance Manual.

[ 453 Pa. Page 155]

Interpreting § 404(a)(1), § 425, and the regulations which implement § 404(a), we must conclude that: (1) the requesting "adult resident" must supply the name (s) of a recipient(s) before the Department of Public Welfare or the County Boards of Assistance are authorized to disclose the recipient's address and the amount of public assistance received; (2) all requests for information must be made by an "adult resident of the Commonwealth" and; (3) information so obtained may not be used for a "commercial or political" purpose.

The corporate appellee (newspaper) must be denied access to the information it requests since it fails to meet all three of the above statutory requirements. Clearly, no one would seriously suggest that the Philadelphia Newspapers, Inc. is an "adult resident" of Pennsylvania. In the 1953 and 1967 revisions of the Public Welfare Law, the Legislature clearly narrowed the class of those entitled to request information (the addresses and amounts received by public assistance recipients) from "taxpayers" to "adult residents of the Commonwealth." This classification obviously does not include corporations, such as the appellee here. If the Legislature had intended to include "corporations" in the class eligible to request information, it explicitly could have done so. Despite this plain language, the court below directed that the corporate appellee be furnished information forbidden to it by statute. That court apparently failed to realistically discern that the individual appellees are one and the same as their corporate counterpart.

Although the important informational role of the press cannot be over-emphasized, and although the Inquirer's goal here may be laudable, appellees have not asserted any non-commercial or non-political use for the public assistance information requested. Thus, we

[ 453 Pa. Page 156]

    cannot indulge in conjecture to conclude that once obtained, the information would be used solely by the newspaper, its individual appellee-editor, or reporter for non-commercial and non-political purposes. Sections 404(a)(1) and 425, supra, explicitly forbid disclosure under these circumstances.

Finally, and most importantly, the appellee-newspaper, as well as the individual appellees, are foreclosed under §§ 404(a)(1) and 425, supra, since they have failed to produce the names of recipients "about whom inquiry is made." A common sense reading of the statutes, and a review of the legislative reforms of the last thirty years, makes it abundantly clear that the Legislature in the 1953 and 1967 public welfare enactments, supra, placed the responsibility on the "adult citizen" to produce the names of those recipients "about whom inquiry is made."*fn5

[ 453 Pa. Page 157]

Appellees, in their initial administrative requests submitted to appellants, in their pleadings and briefs to the court below, and in their briefs on this appeal, have consistently insisted that they be furnished not only the addresses of all recipients in Philadelphia and the amounts received, but also the names of all Philadelphia citizens on public assistance. At no point in the entire proceedings have the appellees, in compliance with §§ 404(a)(1) and 425, supra, provided appellants with the names of those people they seek to investigate.*fn6 Instead, they have merely furnished a Philadelphia telephone directory, containing more than 500,000 listings. See footnote 5, supra.

Accordingly, since the appellees have failed to comply with the mandatory and unambiguous statutory requirements, the information they seek must be denied. The statutory requirements (§§ 404(a)(1) and 425, supra) mean exactly what they say -- "any adult resident of the Commonwealth" can request that the County Boards of Assistance or the Department of Public Welfare furnish ". . . the address and amount of assistance with respect to persons about whom ...


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