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04/28/97 IRWIN W. ARONSON v. PENNSYLVANIA

April 28, 1997

IRWIN W. ARONSON, PETITIONER
v.
PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY; AND MICHAEL J. ACKER, IN HIS OFFICIAL CAPACITY AS DEPUTY SECRETARY FOR SAFETY AND STANDARDS, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENTS



State Agency Pennsylvania Department of Labor and Industry.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge McGINLEY.

The opinion of the court was delivered by: Mcginley

OPINION BY JUDGE McGINLEY

FILED: April 28, 1997

Irwin W. Aronson (Petitioner) appeals the denial by the Chief Counsel (Chief Counsel) of the Department of Labor and Industry (Department), of Petitioner's request pursuant to the Right to Know Law, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1 - 66.4, to inspect and copy responses to a prevailing wage survey, and the mailing list of construction employers who received the survey.

The wage survey requested that construction employers voluntarily report data about the wages they paid on certain types of projects during 1995, and the first five months of 1996, to assist the Deputy Secretary for Safety and Standards for the Department (Secretary) to accurately determine prevailing wages. The deadline for responding was September 3, 1996. Letter from Department to Construction Employers, August 7, 1996, at 1.

On July 30, 1996, Petitioner, a citizen of the Commonwealth, requested to inspect and copy the wage survey responses and the mailing list of construction employers. Letter from Petitioner to Secretary, July 30, 1996, at 1; R.R. at 3. The Secretary denied Petitioner's request. The Secretary stated that responses were still being received and the information that was received was not yet processed. The Secretary also stated that the release of the mailing list was restricted by the Unemployment Compensation Law (UC Law) *fn1 because the list was partially compiled from reports submitted by employers pursuant to the UC Law. Letter from Secretary to Petitioner, August 23, 1996, at 1; R.R. at 4. On August 30, 1996, Petitioner responded and alleged the Secretary misinterpreted the Right to Know Law. Letter from Petitioner to Secretary, August 30, 1996, at 1,2; R.R. at 5,6. The Secretary sent this letter to the Office of Chief Counsel for the Department. By letter dated September 12, 1996, the Chief Counsel denied Petitioner access to both the survey responses and the mailing list of construction employers. The Chief Counsel cited Aamodt v. Department of Health, 94 Pa. Commw. 54, 502 A.2d 776 (Pa. Commw. 1986); A. R. Building Company v. Pennsylvania Housing Finance Agency, 93 Pa. Commw. 140, 500 A.2d 943 (Pa. Commw. 1985); and Pennsylvania Association for Children & Adults With Learning Disabilities v. Department of Education, 91 Pa. Commw. 531, 498 A.2d 16 (Pa. Commw. 1985), and suggested that Petitioner's request for the survey responses was, at best, premature. The Chief Counsel noted that "with regard to the mailing lists, we have performed a significant amount of research on the issue, and find that the "lists" cases are amply distinguishable from the present situation." Also, the Chief Counsel reasserted the Department's position regarding confidentiality under the UC Law, relying upon Allegheny County Housing Authority v. Tribune-Review Publishing Co., 662 A.2d 677 (Pa. Commw. 1995). Letter from Counsel to Petitioner, September 12, 1996, at 1,2; R.R. at 8,9.

Petitioner raises the following issues for our review: (1) whether the survey responses are public records under the Right to Know Law; and (2) whether the mailing list of construction employers is a public record under the Right to Know Law. *fn2

The Right to Know Law authorizes this Court to compel an agency to make public records available for review by the citizens of this Commonwealth. Section 4 of the Right to Know Law, 65 P.S. § 66.4. Section 2 of the Right to Know Law, 65 P.S. § 66.2 provides that "every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania."

Section 1(2) of the Right to Know Law, 65 P.S. § 66.1(2), defines the term "public record" as follows:

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 or 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.

PREVAILING WAGE SURVEY RESPONSES

Initially, Petitioner asserts that, because the Secretary intends to use the survey responses to determine the prevailing wage rates, as required under the Prevailing Wage Act and the Wage Act Regulations, the survey was a decision by the Secretary. The Petitioner contends that the information requested qualifies as a public record because it is an agency decision that sets the personal or property rights, privileges, immunities, duties or obligations of a person or group of persons. We disagree.

Pursuant to Section 7 of the Prevailing Wage Act, Act of August 15, 1961, P.L. 987, as amended, 43 P.S. § 165-7, and the Wage Act's implementing regulations, 34 Pa. Code § 9.105(d), the Secretary is obligated to determine prevailing minimum wage rates for each public work project. The regulation also specifies the types of information which the Secretary should consider. *fn3 The survey responses do not, independently, affect any person's rights or duties, and because the secretary has ...


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