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08/08/97 DAVOUD BARAVORDEH v. BOROUGH COUNCIL

August 8, 1997

DAVOUD BARAVORDEH, APPELLANT
v.
BOROUGH COUNCIL OF PROSPECT PARK AND PETER D. SUBERS AND BEVERLY J. BUTTERLY AND SARAH CAVENDAR AND LOU DEPIETRO AND ROBERT JUREK AND BRENT WHITIG AND RALPH MOORE AND JOHN BRADLEY AND JOHN TOAL



Appealed From No. 95-8458. Common Pleas Court of the County of Delaware. Judge KEELER.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini

OPINION BY JUDGE PELLEGRINI

FILED: August 8, 1997

Davoud Baravordeh appeals from the December 2, 1996 order of the Court of Common Pleas of Delaware County (trial court) which granted the preliminary objections of the Borough Council of Prospect Park, et al., *fn1 (Council) and dismissed Baravordeh's complaint in mandamus.

The facts underlying this matter are as follows. By letter dated February 1, 1995, Baravordeh requested that the Borough of Prospect Park (Borough) provide him with copies of certain documents, including the Prospect Park Police Contract. To have a uniform procedure by which members of the public could request to examine and review public records, the Borough, through Council, had enacted Resolution No. 1656, which provides, in relevant part, that the following procedures "are established in order to provide the public with access to information":

1. Any member of the public may request the right to review and inspect specific public documents pursuant to the Pennsylvania Right-to-Know Act in writing on a form available at the Borough Hall.

2. The Borough shall make available for inspection and review the specifically requested documents within five (5) working days of the request.

3. The Borough will charge $.25 per page for copies of specific documents requested.

4. If the documents requested are not reviewable under the Right-to-Know Act, the Borough shall notify the public within five (5) working days.

In accordance with this Resolution, the Borough informed Baravordeh that his request for public documents must be made on an official Borough form. On February 3, 1995, Baravordeh made that request on the official form, and on the same day, was provided with and charged for 12 pages of the Prospect Park Police Contract, at $.25 per page, for a total charge of $3.00. On April 12, 1995, Baravordeh submitted a request on the official form for copies of the Prospect Park Police Contract and an application for the building permit for 917 Lincoln Avenue. Copies of that information, for which he was again charged $.25 per page, were provided by the following day. *fn2

Claiming that the documents which he received from the Borough were not the "real" Borough police contracts but fabricated documents, Baravordeh filed an amended complaint in mandamus against Council and each of its members in their individual and representative capacities. *fn3 He specifically contended that Resolution No. 1656, as enacted by Council, violated what is commonly known as the Right-to-Know Act (Act) *fn4 because it did not allow for access to Borough records by examination and inspection, but only permitted access to those records by requests for copies and for a charge. Moreover, he contended that the Resolution violated the Right-to-Know Act because inspection and review of the records was not immediate, but was subject to a mandatory five-day delay for access to public records. Baravordeh attached Resolution No. 1656, along with other exhibits, to his amended complaint.

Alleging that the sole remedy for the Borough's and Council's violations was for the trial court to compel Council to comply with the Act, Baravordeh's amended complaint in mandamus requested the trial court to order Council to do the following:

to produce the Police Contracts requested, to present all public records for examination and inspection immediately upon request, to cease and desist in requiring requests for public records, to cease and desist in requiring access to public records solely through copies, and to cease and desist in requiring any ...


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