April 26, 2010
BURTON STEIN, APPELLANT
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.
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, JUDGE
I agree with the majority that the Right-to-Know Law (Law)*fn11 does not require Plymouth Township (Township) to disclose to Burton Stein (Stein) the name of the person who complained to the Township about Stein's alleged misuse of his properties. However, I write separately to offer an alternative analysis that follows, as closely as possible, the language of the Law.
The Township initiated a zoning enforcement action against Stein after receiving a complaint that Stein was using certain properties in violation of the zoning laws. Stein requested, pursuant to the Law, that the Township give him access to records disclosing the identity of the complainant. The Township denied the request because section 708(b)(17)(i) of the Law*fn12 exempts complaints from disclosure. Stein appealed to the Office of Open Records, which upheld the Township's decision, and, on further appeal, the Court of Common Pleas of Montgomery County affirmed. Stein now appeals to this court.
I. Section 708(b)(17)(i)
Stein argues that, although section 708(b)(17)(i) of the Law exempts complaints from disclosure, the provision does not specifically exempt the complainant's identity. Stein points out that section 708(b)(6) of the Law exempts records containing specific personal information, and, thus, the General Assembly knew how to specifically exempt the name of the complainant in section 708(b)(17)(i) if it intended to do so. 65 P.S. §67.708(b)(6). I reject this argument based on the clear language of the Law.
Section 701 of the Law*fn13 requires that, unless otherwise provided by law, a "public record" shall be accessible for inspection and duplication in accordance with the Law. Section 102 of the Law defines the term "public record," in part, as a "record . that . is not exempt under section 708."*fn14 65 P.S. §67.102. Section 102 of the Law defines the term "record," in part, as "[i]nformation . that documents a transaction or activity of an agency and that is created, received or retained . in connection with a transaction, business or activity of the agency." 65 P.S. §67.102 (emphasis added).
Section 708(e) of the Law provides that, "[i]n determining whether a record is exempt from access under this section, an agency shall consider and apply each exemption separately." 65 P.S. §67.708(e) (emphasis added). Therefore, in determining whether information received by an agency in connection with an activity is exempt from access, we consider each section apart from the others. Stein's attempt to construe section 708(b)(17)(i) of the Law based on section 708(b)(6) is improper.
Section 708(b)(17)(i) of the Law exempts from access a "record" relating to a non-criminal investigation, including "[c]complaints submitted to an agency." 65 P.S. §67.708(b)(17)(i). Based on the statutory definition of "record," this means that the information in a complaint received by an agency in connection with a non-criminal investigation is exempt*fn15 from access and, thus, is not a "public record." Accordingly, the name of a complainant contained in a complaint is exempt from access under section 708(b)(17)(i).
II. Section 708(b)(6)
Despite the requirement that each exemption be considered separately, the majority considers section 708(b)(6) of the Law in conjunction with section 708(b)(17)(i). The majority states that section 708(b)(6) of the Law "prevents disclosure of certain personal information when it is contained in a document or file to which access is otherwise allowed." (Majority op. at 4) (emphasis added). I disagree that section 708(b)(6) necessarily relates to personal information in documents or files to which access is otherwise allowed.
As indicated above, a "public record" is a "record" that is not exempt under section 708 of the Law. 65 P.S. §67.102. Section 708(b)(6)(i)(A) exempts, inter alia, "a record containing all or part of a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number." 65 P.S. §67.708(b)(6)(i)(A). A document or file, i.e., a "record," containing the specified personal information is not a "public record"; thus, contrary to the majority's statement, no information in that "record" is accessible.
However, section 708(c) of the Law states that the "exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection [(b)(6)].." 65 P.S. §67.708(c) (emphasis added). Therefore, a "financial record" containing the personal information in section 708(b)(6) is, except for the personal information, a "public record."
Based on the foregoing, I also would affirm.
ROCHELLE S. FRIEDMAN, Senior Judge