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Tribune-Review Publishing Co. v. Bodack

December 18, 2008

TRIBUNE-REVIEW PUBLISHING COMPANY, A PENNSYLVANIA CORPORATION, AND ANDREW CONTE, AN INDIVIDUAL, APPELLANTS
v.
LEONARD BODACK, IN HIS OFFICIAL CAPACITY AS MEMBER OF PITTSBURGH CITY COUNCIL, BARBARA BURNS, IN HER OFFICIAL CAPACITY AS MEMBER OF PITTSBURGH CITY COUNCIL, AND THE CITY OF PITTSBURGH, A MUNICIPAL CORPORATION, APPELLEES



Appeal from the Order of Commonwealth Court entered May 2, 2005 at No. 427 CD 2004, reversing the Order of the Court of Common Pleas of Allegheny County entered February 18, 2004 at No. SA03-1204.

The opinion of the court was delivered by: Mr. Justice McCAFFERY

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: September 10, 2008

OPINION

The Tribune-Review Publishing Company and Andrew Conte, a journalist employed by the Tribune-Review, ("Appellants") sought to obtain, under the act known as the Right-to-Know Act,*fn1 itemized billing records for cellular telephones purchased by the City of Pittsburgh ("the City") and issued to City Council members Leonard Bodack and Barbara Burns. The records sought were for the period from January 1, 2002, through August 1, 2003, and were to include the telephone numbers of both incoming calls to and outgoing calls from each phone, the time of each call, and the duration and cost of each call. Appellants also sought to know which calls were personal calls for which the council members had reimbursed the City. The City denied the request on behalf of Council Members Bodack and Burns on the basis that (1) the records were excludable under the Right-to-Know Act because they contained private telephone numbers, which, if revealed, could potentially result in danger to the owners of the telephone numbers and/or danger that persons would be reluctant to contact the City regarding local problems; and (2) such bills were not, in general, public records subject to the Right-to-Know Act because the council members had reimbursed the City for their cellular telephone usage.

Appellants filed a timely appeal of the City's denial of its request to the Allegheny Court of Common Pleas pursuant to 65 P.S. § 66.4(b). Following a hearing, the trial court sustained Appellants' appeal and ordered that the requested information be produced. Council Members Bodack and Burns and the City ("Appellees") appealed to the Commonwealth Court, which reversed, determining that the telephone bills did not fall within the definition of "public record." The Right-to-Know Act defines a "public record" as follows:

"Public record." 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, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include 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.

65 P.S. § 66.1 (emphasis added).

The Commonwealth Court determined that because the subject telephone bills were clearly "account[s or] voucher[s] . dealing with the receipt or disbursement of funds by an agency," despite any reimbursement made by the council members, the requested bills fell within the general definition of "public record." However, the court also determined that the disclosure of telephone numbers of persons placing calls to, and receiving calls from, the council members could compromise the privacy, reputation, or personal security of those persons to whom the telephone numbers belonged. Thus, the court concluded that the telephone bills, unredacted, fell within an exception to the definition of "public record." Accordingly, the Commonwealth Court reversed the decision of the trial court ordering disclosure of the telephone bills "as-is." More particularly, the Commonwealth Court held that the telephone numbers on the bills must be redacted before the bills are eligible for public release.

In its analysis, the Commonwealth Court first noted a distinction between cellular telephone calls made by council members, and the calls made to council members by individuals, both of which sets of calls would be notated on the cellular telephone bills. The court stated:

Cellular phones are different from traditional phones in that, when a call is made to a traditional phone, the person placing the call generally pays for the cost of the call and thus the number of the person making the call would not appear on the telephone bill of the person receiving the call. However, with cellular phones, the persons receiving a call are still using "airtime" even though they didn't initiate the calls and they are therefore charged for the calls. Thus, because there is a charge for the call, the incoming number is often displayed on the cellular phone bill. This fact . [establishes that] the private citizen, unknowingly, . provid[es] information to the public agency by the act of initiating the call to the cellular telephone of a public official without any notice that his/her identity will be disclosed. As in Times Publishing,*fn2 in this case we believe that private citizens have a legitimate and reasonable expectation that their phone numbers will remain private and that disclosure of these numbers would constitute an unwarranted invasion of personal privacy outweighing any public benefit derived from disclosure. For these reasons, the numbers of incoming phone calls in this case are not subject to disclosure.

Tribune-Review Publishing Co. v. Bodack, 875 A.2d 402, 407 (Pa.Cmwlth. 2005).

The Commonwealth Court also considered that one who has been called on the telephone by a public official risks damage to his or her reputation, once the fact of this call is made public. The court stated:

Furthermore, the reputation of the person called must also be considered. [In particular, the court must] address the damage to the reputation caused to private citizens whose numbers are released to the public when, without notice or warning, they are called by a public official on a cell phone or perhaps even mistakenly called if the public official dials a wrong number. It is a fact that the knowledge that certain people had contact with certain public officials could and would be used at the very least to damage a person's reputation. Such damage can be measured only by the interpretation placed on the release of that information and its perceived connection to the political, business, marital, competitive or other interests of the person receiving the call. It is not enough to only weigh the importance of discovering the public official's use of public funds and public equipment. Rather, the request for this information must be balanced by weighing the rights of innocent private citizens who have no way to protect themselves from an ...


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