Appeal from the Order of the Department of Environmental Resources in the case of Re: Hill, et al. v. DER and Wichard Sewer Company, EHB Docket No. 85-356-R.
Philip R. Detwiler, with him, Sean P. Flynn, Philip R. Detwiler & Associates, P.C., for petitioner.
M. Dukes Pepper, Jr., Assistant Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail did not participate in the decision in this case.
[ 120 Pa. Commw. Page 511]
Elizabeth Steele appeals from a decision of the Department of Environmental Resources (DER) denying her request to inspect a copy of a 1979 memorandum pursuant to the Right-To-Know Law, Act of June 21, 1957, P.L. 390, as amended. Section 2 of the Act states:
Every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.
[ 120 Pa. Commw. Page 512]
In April 1987, counsel for Ms. Steele wrote to Mr. Kenneth Gelburd, assistant counsel for the Department of Environmental Resources, requesting an opportunity to inspect and examine a "nine-page memorandum dated February 13, 1978 entitled 'DRBC Approval of Waste Water Treatment Projects' authored by Maxine Woefling and R. Timothy Weston." At that time, both Ms. Woefling and Mr. Weston were assistant attorneys general.
In response, Mr. Gelburd transmitted the request to DER's Bureau of Water Quality Management, Division of Permits and Compliance. On May 13, 1987, Mr. Peter Slack, chief of the permits section, responded that the 1979 memo requested "is considered as a privileged communication, not subject to the statutory requirements in question."
The threshold question is whether the memorandum sought to be reviewed is a "public record" as defined and made ...