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FRED MERGENTHALER v. COMMONWEALTH PENNSYLVANIA (04/25/77)

decided: April 25, 1977.

FRED MERGENTHALER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES RETIREMENT BOARD, APPELLEE



Appeal from the Order of the State Employes Retirement Board in case of In Re: Fred Mergenthaler, dated April 7, 1976.

COUNSEL

Thomas A. Beckley, with him Craig W. Bremer, and, of counsel, Beckley & Madden, for appellant.

Raymond Kleiman, Deputy Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Mencer.

Author: Wilkinson

[ 33 Pa. Commw. Page 239]

This appeal arises under the "right to know" statute, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § 66.1 et seq. Appellant is a resident and taxpayer of the Commonwealth of Pennsylvania, and President of the Pennsylvania Association of Retired State Employees (PARSE), a non-profit corporation, having as its purpose, inter alia, to foster the interests of current and retired employes of the Commonwealth of Pennsylvania in order to advance and promote such interests financially, socially and psychologically. On April 6, 1976, appellant requested access to the records of the State Employes Retirement Board (Board). Alternatively appellant requested that he be provided with a list of such persons at a reasonable expense. This request was refused by the Board on April 7, 1976. We disagree and reverse.

A Public Record is defined by the statute, 65 P.S. § 66.1(2) as:

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

[ 33 Pa. Commw. Page 240]

    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.

Appellant contends first that the names and addresses of retired state employes are public records; and second, that it is inconceivable that a list of these names and addresses does not exist. The Board on the other hand contends: first, they are not required to furnish a list of names and addresses of retired persons under the "right to know" statute 65 P.S. § 66.1 et seq.; second, that sufficient information is already available for inspection and copying to satisfy the requirements of the statute;*fn1 and third, that the release of the addresses would affect the personal security and reputation of the retirees.

The "right to know" statute, 65 P.S. § 66.1 et seq. allows for four exceptions to its very general definition of Public Record, 65 P.S. § 66.1(2). The first exception pertains to records involved in an investigation; the second, involves records to which access is unavailable due to "statute law or order or decree of court"; the third, prohibits access to records "which

[ 33 Pa. Commw. Page 241]

    would operate to the prejudice or impairment of a person's reputation or personal security"; the last exception, prohibits access to records which would cause the loss to the Commonwealth or any of its political subdivisions of Federal funds. The problem of interpreting the breadth of this definition and its exceptions has been faced by this Court on several occasions, necessitating a review of the relevant case law.

In McMullan v. Secretary of Welfare, 3 Pa. Commonwealth Ct. 574, 384 A.2d 334 (1971), rev'd on other grounds sub nom., McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973) appellants sought the names, addresses, and amounts of public assistance received by recipients in the County of Philadelphia. In that case the Department of Public Welfare argued that access was barred under the "right to know" statute and the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 401 et seq. This Court granted access under the "right to know" statute. On appeal, the Pennsylvania Supreme Court reversed,*fn2 holding that the Public Welfare Code barred access.*fn3 Nonetheless, it found the definition of "Public Record" under the "right to know" statute, 65 P.S. § 66.1(2), to be broad enough to encompass the information sought.*fn4

In Friedman v. Fumo, 9 Pa. Commonwealth Ct. 609, 309 A.2d 75 (1973), the records containing the names of the candidates for the Certified Public ...


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