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JAMES L. MARVEL v. THOMAS G. DALRYMPLE (10/11/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 11, 1978.

JAMES L. MARVEL
v.
THOMAS G. DALRYMPLE, ROBERT J. DIJOSEPH AND JAMES A. DROBILE, COMPRISING THE CIVIL SERVICE COMMISSION OF RADNOR TOWNSHIP (2 CASES)

Appeals from the Order of the Court of Common Pleas of Delaware County in case of James L. Marvel v. Thomas G. Dalrymple, Robert J. DiJoseph, James A. Drobile, comprising the Civil Service Commission of Radnor Township, No. 11308 of 1974.

COUNSEL

John M. Gallagher, Jr., with him Richard, Brian, DiSanti & Hamilton, for James L. Marvel.

Eugene H. Evans, with him Goldberg and Evans, for Radnor Township Civil Service Commission.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 38 Pa. Commw. Page 69]

An order of the Court of Common Pleas of Delaware County directing the Civil Service Commission of Radnor Township (Commission) to make certain records available to appellant, James L. Marvel, is the basis of this appeal.

In March, 1974, Marvel, a Radnor Township police officer, undertook a promotional examination for the rank of sergeant. The examination was a four-part test consisting of (1) a written examination; (2) an oral examination before members of the Commission and a guest; (3) a review of service ratings by superior officers; and (4) a review of appellant's past experience, training and education. Subsequent to the examination, appellant was notified of his score but was not apprised of the passing grade, the number of persons passing the test, or his relative ranking. Because he suspected irregularities in the administration and grading of the examination, appellant petitioned the Commission for permission to review the grades of each examinee in each of the four components of the examination and all papers comprising each component.

Permission was denied ostensibly because that information was deemed to be confidential. Appellant then appealed to the lower court which found that several of the documents sought were indeed "public records" within the meaning of the so-called "Right-To-Know Act"*fn1 (Act), but that certain of those documents were excepted from the provisions mandating

[ 38 Pa. Commw. Page 70]

    disclosure. The court denied appellant access to rating sheets completed by the Commission, evaluations by superiors prepared during the course of the promotional examination, and physical reports on the fitness of each applicant for promotion, reasoning that those documents were within the category of records which would be intrinsically harmful to the reputation or personal security of the participants in the examination, namely, other applicants, the superior officers and the Commission members. The court concluded by ordering that only the following documents be made available to appellant:

1. A copy of the examination booklet used in the examination.

2. Appellant's own written examination answer paper.

3. The written examination answer papers of all other examinees.

4. Appellant's composite score in the examination.

5. The composite scores of all other examinees.

6. Appellant's numerical scores for each part of the examination.

7. The numerical scores of all other examinees for each part of the examination.

Appellant now comes to us and argues that the lower court's order is underinclusive because its application of the disclosure exceptions afforded by the Act is in error. Reliance on the "reputation exception" is misplaced, argues appellant, because the documents sought to be disclosed are not intrinsically harmful to the reputation of anyone involved with the examination. Likewise, appellant asserts that no investigation was undertaken by the Commission in relation to the examination, and that, therefore, the "investigation exception" provided by the Act does not apply. Lastly, appellant claims a common law right

[ 38 Pa. Commw. Page 71]

    in addition to the alleged statutory right, to inspect the records sought herein.

The Commission answers by claiming that none of the records requested by appellant are "public records" as defined by the Act and argues in the alternative that if such records are indeed "public records," the exceptions provided by the Act do apply and preclude discovery of the items sought on appeal.

Section 1 of the Act, 65 P.S. § 66.1 defines "public record" as including

     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 any investigation undertaken by an agency in the performance of its official duties . . . or which would operate to the prejudice or impairment of a person's reputation or personal security. . . .

Any material so designated a public record is available to any citizen of the Commonwealth for examination and inspection. Section 2 of the Act, 65 P.S. § 66.2.

Undoubtedly, the legislature intended through the medium of [this] 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.

[ 38 Pa. Commw. Page 72]

Code,*fn2 and regulations promulgated thereunder, apparently arguing that any decision by the appointing authority to promote some number of individuals certified by the Commission as eligible for appointment could come within the meaning of a decision "fixing personal or property rights, privileges, immunities, duties or obligations . . ." of unpromoted eligibles. See Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 311, 373 A.2d 788, 790 (1977) ("fixing" to be read as "affecting" rather than "creating" rights, privileges, etc.).

The lower court's analysis did not delve into the nature of the right fixed here by the promotion process, relying instead on comparison to documents previously defined by this Court as "public records,"*fn3 concluding that "examination of the statutory definition of 'public record' and appellate interpretations of that definition, together with the Civil Service Commission's statutory duty, convinces us that the records sought by appellant satisfy the definition. . . ." (Footnote omitted.)

Were we to define the requested documents solely by those terms provided in Section 1 of the Act we would have to investigate the particular right or interest propounded by appellant, i.e., ensuring fair testing

[ 38 Pa. Commw. Page 74]

    methods, an issue addressed by neither the parties nor the lower court.

We believe, however, that such investigation is unnecessary when a statutory duty befalls the Commission to keep its examination records open to public inspection. To the extent that the lower court touched on this in the quoted portion of its opinion, we agree.

Section 631 of the First Class Township Code, 53 P.S. § 55631, requires the Commission to keep open to the public all records of its proceedings and official actions, including records of examination.*fn4 In conjunction therewith, Sections 305 and 516 of the Rules and Regulations of the Civil Service Commission of Radnor Township make available for public inspection all examination papers.*fn5

In that these provisions provide public access to the minutes, records and examination papers of the

[ 38 Pa. Commw. Page 75]

Commission, these documents must be deemed "public records" separate and apart from any inquiry into any rights, privileges, immunities, duties or obligations fixed by them. We so hold because we believe the legislature intended the generic definition of a public record contained within the Right-To-Know Act to incorporate by implication those specific definitions of "public record" contained in statutes allowing for public access to particular documents of particular agencies.

Our holding that the requested documents are public records within the context of the Right-To-Know Act compels consideration of any applicable exclusions.

Appellant has requested all examination papers of all applicants in each of the four areas of examination. The Commission contends that such disclosure would not only reveal the institution, progress or result of an investigation undertaken by the agency, but would also operate to the prejudice of the reputation or personal security of those involved in the examination procedures, i.e., the other applicants, Commission members, and reviewing superior officers.

In our view, the requested documents are not of the sort envisaged by the field investigation exception of the Act. As the ultimate determinators of the decision to promote or not to promote, they have been accumulated for that purpose, as opposed to being independent investigations, the discovery of which would compromise the performance of an official agency action unrelated to the particular interest which has rendered the requested minute, order or

[ 38 Pa. Commw. Page 76]

    decision a public record in the first place. See Wiley v. Woods, supra at 352, 141 A.2d at 850 (field investigation notes prepared in connection with report to individual member of City Council nondiscoverable; actual report and record of Planning Commission's denial of rezoning petition discoverable as being bases for ultimate action by City Council).

With regard to the requested rating sheets completed by members of the Commission and the guest examiner in connection with the oral examination, evaluations by superiors specifically for the promotional examinations and physician's reports on the fitness of each applicant for promotion, we believe these to have been properly excluded from discovery as within a category of records the discovery of which would operate to prejudice or impair the reputation of the other applicants.

The same consideration compels exclusion of the superior officer's promotional evaluation, as we believe the confidentiality of such is required to maintain and promote relations between superiors and applicants. This pertains as well to the evaluation sheets prepared by the Commission in the oral interview. An individual rater's interest in maintaining a reputation for fairness and objectivity is best promoted by ensuring the confidentiality of the rating sheets.

As we believe the lower court properly struck the balance between the appellant's interest in a fair and impartial examination, and the need for confidentiality within certain elements of the evaluation process, the order is affirmed.

Order

Now, October 11, 1978, the order of the Court of Common Pleas of Delaware County is affirmed.

Disposition

Affirmed.


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