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Lutz v. City of Philadelphia

October 22, 2010

MICHAEL G. LUTZ, LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, THROUGH ITS TRUSTEE AD LITEM, JOHN MCNESBY; CHRISTINE O'SHEA, NADINE CRAWFORD, KENNETH FLEMING AND EDWARD SPANGLER
v.
CITY OF PHILADELPHIA AND PHILADELPHIA NEWSPAPERS, LLC AND WENDY RUDERMAN
APPEAL OF: CITY OF PHILADELPHIA



The opinion of the court was delivered by: Judge Leavitt

Argued: May 18, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

The City of Philadelphia appeals an order of the Court of Common Pleas of Philadelphia County granting, in part, a preliminary injunction in favor of the Fraternal Order of Police, Lodge No. 5 (Union). The injunction effectively prohibited the City from granting a news organization's request for access to police grievance arbitration awards under the Right-to-Know Law.*fn1 Because Union failed to demonstrate the "clear right to relief" necessary for a preliminary injunction, we will reverse the trial court's order.

In July 2009, Wendy Ruderman, an employee of Philadelphia Newspapers LLC, submitted a request to the City under the Right-to-Know Law to review "all arbitration awards, including written decisions by arbitrators, pertaining to police officers in the years 2005, 2006, 2007, 2008 through the present." Reproduced Record at 119 (R.R.__).*fn2 The City reviewed Philadelphia Newspapers' request and identified 187 arbitration decisions of varying lengths and formats that were subject to the request. The City planned to provide redacted copies of these documents.

Upon learning of the City's plan, Union filed a complaint for declaratory judgment and petition for injunctive relief with the trial court.*fn3 Union sought, inter alia, an order preliminarily enjoining the City from disclosing any portion of any arbitration decision in response to Philadelphia Newspapers' Right-to-Know request. Union averred that the documents contain sensitive information related to the function, performance and duties of police officers, which, if released to the public, could jeopardize the safety of officers and their ability to effectively perform their duties. Union further averred that the documents may contain personal information about individual officers and their off-duty conduct which, if released to the public, could threaten the security of the officers and their families. Union believes that the arbitration decisions are the private property of the City and Union, and that the real interested individuals, i.e., the grievant police officers, have no means to restrict access to the information in the records or appeal a decision by the City to release any or all of that information.

On August 31, 2009, the trial court held a hearing on Union's request for injunctive relief. Philadelphia Newspapers sought, and was permitted, to intervene. No witnesses testified. However, the trial court directed the City to provide it with copies of the grievance arbitration decisions at issue. At a second hearing on September 14, 2009, John McGrody, the Union's vice president in charge of arbitration and grievance procedure, testified on behalf of Union.

McGrody offered several reasons to support Union's position that no portion of an arbitration decision should be released to the public. For example, the American Arbitration Association has not adopted guidelines for the format of an arbitrator's written decision. As a result, some arbitrators may include facts in the actual award, while others may simply state "grievance denied." Because of this inconsistency in the factual content of the decisions, Union members are concerned about the inadvertent release of factual information that could jeopardize their own or their families' personal safety. Such information includes the officers' home addresses, names of their family members, ages and dates of birth of their children, and what schools their children attend. McGrody stated that "a lot of our police officers have received threats over the years, and those threats . have extended to the families of police officers." R.R. 52. McGrody explained that arbitration decisions related to staffing issues can contain sensitive information about manpower, deployment and work hours of specific groups of officers, such as narcotics and undercover units. Further, if a grievance relates to financial irregularities, then an officer's date of birth, social security number and other identifying factors may be placed into evidence. Finally, McGrody posited that grievances may involve discipline for off-duty conduct that is unrelated to an officer's employment by the City.

On September 28, 2009, the trial court granted partial injunctive relief in favor of Union. The trial court ordered the City to comply with Philadelphia Newspapers' request for records by providing a summary of each arbitration award that included only the following information:

(1) the date the arbitration award was issued;

(2) the name of the arbitrator; and

(3) whether the grievance was affirmed or denied.

The order enjoined the City from releasing all other information, including the name of the police officer and any description of the nature of the grievance or the remedy awarded.*fn4

The trial court reasoned that its injunction was tailored to prevent disclosure of information protected from public access by several provisions in the Right-to-Know Law. First, the trial court cited the exemption in Section 708(b)(7) of the Law, for "[w]ritten criticisms of an [agency] employee," and "[g]rievance material, including documents related to discrimination or sexual harassment." 65 P.S. §67.708(b)(7). Next, the trial court cited the exemption in Section 708(b)(8) of the Law for "an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion." 65 P.S. §67.708(b)(8). Finally, the trial court cited Section 708(b)(1)(ii), which exempts release of requested records that "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual" police officer and his or her family. 65 P.S. §67.708(b)(1)(ii). The trial court reasoned that the vagueness of Philadelphia Newspapers' request, the lack of a standard format in the arbitration decisions, and the City's willingness to release information without Union's involvement, created a potential risk to the police officers' constitutional right of privacy identified in ...


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