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Jonathan Silver and the v. Borough of Wilkinsburg

December 14, 2012

JONATHAN SILVER AND THE PITTSBURGH POST-GAZETTE, APPELLANTS
v.
BOROUGH OF WILKINSBURG



The opinion of the court was delivered by: Anne E. Covey, Judge

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

Argued: November 14, 2012

OPINION BY

JUDGE COVEY

PG Publishing Company d.b.a. The Pittsburgh Post-Gazette and Jonathan Silver (collectively, Gazette) appeal from the Allegheny County Common Pleas Court's (trial court) January 25, 2012 order affirming the Final Order of the Office of Open Records (OOR) affirming Wilkinsburg Borough's (Borough) decision to grant limited access to an employment termination letter, thereby redacting all information contained in the letter except the employment termination language itself and that the employee had been given notice of said employment termination. There are two issues before this Court: (1) whether Section 708(b)(7)(viii) of the Right-To- Know Law (RTKL),*fn1 which requires production of a final action, means the entire employment termination letter which contains prior disciplinary action or only the employment termination language and notice given to the employee, and (2) whether the Borough waived its argument that the employment termination letter was not a final action. We affirm.

On August 2, 2011, the Gazette submitted a request under the RTKL to the Borough seeking, among other items, a former Borough employee's employment termination letter. The Borough produced a redacted copy of the employment termination letter. The Gazette appealed to the OOR, which issued a Final Determination affirming the Borough's decision to grant limited access to the employment termination letter. The Gazette appealed to the trial court. The trial court reviewed the unredacted employment termination letter in camera and determined that the redacted material related to previous disciplinary action. On January 25, 2012, the trial court affirmed the OOR's Final Determination. The Gazette appealed to this Court.*fn2

The Gazette first argues that the exception within the general exemption of Section 708(b)(7)(viii) of the RTKL, related to the final action of an agency resulting in an employee's demotion or discharge, requires production of the complete final action which in this case the Gazette contends is the entire employment termination letter. Specifically, the Gazette contends that although Section 708(b)(7)(viii) of the RTKL exempts information relating to an agency employee's discipline, demotion or discharge, the second sentence of Section 708(b)(7)(viii) of the RTKL specifically states an exception for a final action of an agency that results in demotion or discharge. Consequently, the Gazette avers, because an employment termination letter is a final action resulting in discharge, the entire letter should have been produced. We disagree.

Section 708(b)(7)(viii) of the RTKL specifically exempts from access "[i]nformation regarding discipline, demotion or discharge contained in a personnel file [relating to an agency employee]. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge."*fn3 Thus, the issue becomes whether the employment termination letter is the "final action" of the agency.

The RTKL does not define "final action." It is "a well-settled rule of statutory construction that when statutory provisions are not ambiguous, legislative intent should be effectuated by according the words their plain and ordinary meaning and not by disregarding their obvious meaning in search of a particular result." In re Condemnation of a Permanent Right-of-Way, 873 A.2d 14, 17 (Pa. Cmwlth. 2005). According to Webster's Third New College Dictionary 428, 12 (2008), the definition of final is "forming or occurring at the end . . . or constituting the last element in a series, process or procedure[;]" and the definition of action is "the process of acting or doing . . . [a]n act or deed." In addition, Section 102 of the RTKL defines "record" as:

Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a dataprocessed or image-processed document. 65 P.S. § 67.102. Clearly, the agency's "final action" was the employment termination, and the employment termination letter was the "record" of said employment termination.*fn4

The purpose of the RTKL is "to promote access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions." Allegheny County Dep't of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) (quoting Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), appeal granted, 609 Pa. 265, 15 A.3d 427 (2011)). Similarly, the purpose of the Sunshine Act, 65 Pa.C.S. §§ 701-716, is "to provide the Commonwealth's citizens with a right to be present at all meetings of public agencies and to witness deliberations, policy formulation and decision-making processes." Society Hill Civic Ass'n v. Philadelphia Bd. of License & Inspection Review, 905 A.2d 579, 584 (Pa. Cmwlth. 2006).

The [RTKL] is one of a series of legislative enactments designed to provide a comprehensive format governing public access to the meetings and hearings of public agencies. The other statutes are now embodied in the Sunshine Act. Because they relate to the same class of things, information about actions by public agencies, the [RTKL] and the Sunshine Act are in pari materia. Indeed, this has been the practice for Commonwealth agencies since 1974. Therefore, they shall be construed together, if possible, as one statute.

Schenck v. Twp. of Center, Butler County, 893 A.2d 849, 853 (Pa. Cmwlth. 2006) (citations omitted).

Section 703 of the Sunshine Act defines an "official action" as:

(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.

(2) The establishment of policy by an agency.

(3) The decisions on agency business made ...


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