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A.R. BUILDING COMPANY v. PENNSYLVANIA HOUSING FINANCE AGENCY (11/22/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 22, 1985.

A.R. BUILDING COMPANY, PETITIONER
v.
PENNSYLVANIA HOUSING FINANCE AGENCY, RESPONDENT

Appeal from the Order of the Pennsylvania Housing Finance Agency in case of Re: A.R. Building Co.-Pacific Realty, Cooper Ridge Apartments, dated October 1, 1984.

COUNSEL

W. Thomas Laffey, Jr., with him, Maurice A. Nernberg, Jr., Nernberg & Laffey, for petitioner.

Gwendolyn T. Mosley, Deputy Attorney General, with her, Allen C. Warshaw, Chief Deputy Attorney General, Chief Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Clifford B. Levine, with him, Ralph F. Scalera and David A. Reis, Thorp, Reed & Armstrong, for intervenor, Pacific Realty Corporation, Inc.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 93 Pa. Commw. Page 141]

A.R. Building Company (Company) appeals from a refusal by the Pennsylvania Housing Finance Agency (PHFA) to disclose, pursuant to the Right-to-Know Law (Law),*fn1 a market survey which Pacific Realty Corporation (Pacific)*fn2 had submitted to the PHFA with its application for funding, upon which the PHFA had taken no final action.*fn3

The appeal presents two questions. We must decide whether the PHFA is covered by the Law, and whether a market survey submitted by a private applicant is a "public record" before the agency has disposed of the application.

Coverage of The Law

The Law applies to an "agency", which its section 1(1) defines as:

[ 93 Pa. Commw. Page 142]

Any department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, or any Page 142} State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.*fn4 (Emphasis added.)

The legislative declaration of purpose for the creation of the PHFA was to provide financing for the construction and rehabilitation of homes and rental housing for persons of moderate and low incomes.*fn5 Our Supreme Court affirmed that legislative declaration in Johnson v. Pennsylvania Housing Finance Agency, 453 Pa. 329, 309 A.2d 528 (1973), holding that the PHFA performs a "public purpose".

Thus, the legislative purpose declaration as to the PHFA, our Supreme Court's decision in Johnson, and the express language of the Law -- "any State or municipal authority or similar organization" which performs an essential governmental function -- all lead us to conclude that the PHFA is an "agency" within the meaning of the Law.

Pacific, the intervenor whose survey is sought, contends that Pennsylvania Housing Finance Agency v. Abreen Corporation, 84 Pa. Commonwealth Ct. 571, 480 A.2d 335 (1984) negates the concept of the PHFA as an "agency" under the Law. However, the situation before us is distinguishable from that in Abreen. In Abreen we held only that the PHFA is not "the Commonwealth" under the Board of Claims Act which expressly limits the board's jurisdiction to claims against the Commonwealth".*fn6 The Right-to-Know

[ 93 Pa. Commw. Page 143]

Law is much more expansive in that it applies to "any State or municipal authority or similar organization".

Pacific further argues that the Law's explicit mention of the Pennsylvania Turnpike Commission and omission of the PHFA in the definition of "agency" reveals a legislative intent to exclude the PHFA from its coverage. However, we note that the PHFA was created after the original enactment of the Law. Moreover, the specific mention of the Pennsylvania Turnpike Commission, which the legislature apparently inserted for the sake of clarity, does not negate the nature of the PHFA as an organization "similar" to a "State . . . authority"*fn7 performing "an essential governmental function."

In addition, Pacific contends that our recognition of the financial similarities between the Pennsylvania Turnpike Commission and the PHFA in Abreen supports its contention that the legislature, by explicitly naming the Commission but not the PHFA, thus indicated an intention to exclude the PHFA from coverage of the Law. However, an equally cogent argument is that our recognition of the similarities between the Pennsylvania Turnpike Commission and the PHFA in Abreen tends to confirm the conclusion that the legislature intended to cover both of them under the Law.

Public Record Definition

In considering whether the private applicant's market survey is a "public record", we note that section 1(2) of the Law defines a "public record" as:

[ 93 Pa. Commw. Page 144]

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. . . .*fn8 (Emphasis added.)

The market survey at issue clearly does not come within the express language of that definition.

The same section of the Law tends to confirm its inapplicability to a private applicant's market survey -- which is actually an investigation of market conditions -- by a subsequent proviso which excludes from the Law's coverage "any . . . paper . . . which would disclose . . . an investigation undertaken by an agency . . .," with non-pertinent exceptions. Even when produced at public expense, investigative material is not subject to the disclosure mandate. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958) (field investigation notes of a city planning department concerning a rezoning proposal). A fortiori, if a public agency's own investigation is not subject to disclosure, a private applicant's investigative product would not be amenable to another citizen's scrutiny under this Law.

The Company contends that Pennsylvania Association For Children and Adults With Learning Disabilities v. Department of Education, 91 Pa. Commonwealth Ct. 531, 498 A.2d 16 (1985) is controlling. However, Pennsylvania Association is contrary to the Company's position because the market survey in question here is part of a pending proposal (i.e. application) like the pending proposals and plans which this

[ 93 Pa. Commw. Page 145]

    court refused to release in Pennsylvania Association, not just a gathering of statistics as to which we allowed access. Similarly, Patients of Philadelphia State Hospital v. Department of Public Welfare, 53 Pa. Commonwealth Ct. 126, 417 A.2d 805 (1980), Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 373 A.2d 788 (1977), Young v. Armstrong School District, 21 Pa. Commonwealth Ct. 203, 344 A.2d 738 (1975), and McMullan v. Secretary of Welfare, 3 Pa. Commonwealth Ct. 574, 284 A.2d 334 (1971), rev'd on other grounds sub. nom., McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973) are all distinguishable from this case on the same basis that we distinguished them in Pennsylvania Association; they all related to consummated decisions, not pending ones. Further, Ryan v. Pennsylvania Higher Education Assistance Agency, 68 Pa. Commonwealth Ct. 123, 448 A.2d 669 (1982) (contracts), Carbondale Township v. Murray, 64 Pa. Commonwealth Ct. 465, 440 A.2d 1273 (1982) (cancelled checks), City of Philadelphia v. Doe, 45 Pa. Commonwealth Ct. 225, 405 A.2d 1317 (1979) (real estate tax records) and Marvel v. Dalrymple, 38 Pa. Commonwealth Ct. 67, 393 A.2d 494 (1978) (examination results) are also distinguishable from this case because none involved elements of an incipient proposal or application.

Accordingly, we hold that A.R. Building Company is not entitled to access to a market survey constituting an element in another party's pending application.

Order

Now, November 22, 1985, the Pennsylvania Housing Finance Agency's denial of A.R. Building Company's request is affirmed.

Disposition

Affirmed.


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