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Stein v. Plymouth Township

April 26, 2010

BURTON STEIN, APPELLANT
v.
PLYMOUTH TOWNSHIP



The opinion of the court was delivered by: Judge Pellegrini

Argued: February 9, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Burton Stein (Stein) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) affirming the decision of the Office of Open Records (OOR) denying his request for access to names of the individual or entity (complainant) that caused Plymouth Township (Township) to initiate an enforcement action. Finding no fault with the OOR's decision that it falls within the "complaint exemption," we affirm the trial court's decision.

In the spring of 2007, the Township received a complaint regarding properties owned by Stein at 111 and 113 W. Germantown Pike for allegedly being used for office space in violation of existing zoning regulations. As a result of the complaint, the Township initiated an enforcement action seeking to abate the allegedly illegal use. Seeking to discern who complained, Stein asked the Township for any and all records relating in any way to the commencement of the enforcement proceedings, including but not limited to written correspondence, memoranda, notes and materials that would identify the name of the complainant. The Township granted his request in part by providing him with copies of the enforcement notices dated April 26, 2007, and September 11, 2007. However, it denied that part of his request seeking the identity of the complainant stating that it was exempt from disclosure by Section 708(b)(17)(i) of the Right-to-Know Law (Law).*fn1 That provision provides that an exception exists for disclosure of records*fn2 of an agency relating to a non-criminal investigation, including, among other things, "complaints submitted to an agency."

Stein only appealed the Township's denial of the complainant's name to the OOR, which also denied his request, stating that because complaints are exempt from disclosure under Section 708(b)(17)(i) of the Law, any information in the complaint, including the complainant's name, would also be exempt because the record itself is exempt. (OOR's April 3, 2009 Final Determination at 5.) Stein appealed the OOR decision to the trial court, which affirmed the OOR's decision based on the same reasoning. This pro se*fn3 appeal followed.*fn4

Stein contends that the OOR erred by refusing to provide him with the name of the complainant because with respect to Section 708(b)(17)(i) of the Law, the General Assembly chose to exempt only the "complaint" submitted to the agency, not the name of the person making the complaint.*fn5 More specifically, Stein contends that had the General Assembly intended to exempt the names of complainants from disclosure, it could have included such language in the statute as it did in subsection 708(b)(6) of the Law, 65 P.S. §67.708(b)(6).*fn6 Because the General Assembly was cognizant of the fact that the names of persons in public records are subject to the Law's disclosure requirements and it chose not to exempt a "complainant" but only a "complaint," Stein contends that the OOR incorrectly determined that the statute included the names of complainants within the exemption for complaints.

65 P.S. §67.708(b)(6), the provision that Stein cites to, prevents public access to certain personal information when it is contained in a document or file to which access is otherwise allowed. When such protected-exempt from access- information is included in a document or digital file, Section 706 of the Law, 65 P.S. §67.706,*fn7 applies. That provision allows access to the information contained in the document or digital file but with the protected information either redacted or segregated. What Stein contends is that if the name of the person is not protected under Section 67.708(b)(6), then he should be entitled to the "identity" of the complainant.*fn8 However, in this case, we are not dealing with a document or digital file containing some information that is exempt from access and some that is not, but with information that is "exempt" from access under Section 65 P.S. §67.708(17).*fn9 That provision makes all information "relating to a non-criminal investigation" exempt from access, including the names of individuals who filed the complaint that prompted the investigation.

Stein also argues that the name of the complainant is not exempt because Sections 908(3) and (5) of the Pennsylvania Municipalities Planning Code (MPC)*fn10 give him the right to confront witnesses against him and present evidence in the enforcement proceeding and does not permit a complainant to remain anonymous. Among a myriad of other factual and legal flaws, that argument fails because this appeal involves whether the complainant's name must be disclosed under the Right-to-Know Law, not the MPC; if he has any rights to disclosure, he has to proceed in that forum.

Stein's final argument is that the OOR erred in refusing to allow him to review the complaint and view the complainant's name because the Township's enforcement proceedings may have been commenced against his properties for an improper purpose, diminishing the value of the properties to such an extent that they could be acquired by an interested party for a substantially reduced price. He further believes that persons associated with the Township's zoning office may have been involved in commencing the zoning-enforcement proceedings for that improper purpose. Just as an improper motive is not the reason to deny a request for information that the General Assembly has deemed accessible, an improper motive behind information does not make exempt records subject to disclosure.

Accordingly, the order of the trial court is affirmed. ORDER

AND NOW, this 26th day of April, 2010, the order of the Court of Common Pleas of Montgomery County, dated May 26, 2009, is affirmed.

DAN PELLEGRINI, ...


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