The opinion of the court was delivered by: Robert Simpson, Judge
Argued: November 14, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
This case returns to us following our remand in Department of Administrative Services/ASCI v. Parsons/WTAE-TV, 13 A.3d 1025 (Pa. Cmwlth. 2011) (en banc) (ASCI I). Television reporter James Parsons and WTAE-TV (collectively, Requester) appeal from the Allegheny County Court of Common Pleas' (trial court) order that reversed the Office of Open Records (OOR) Final Determination directing a local agency to disclose certain private contractor employee information requestedunder the Right-to-Know Law (RTKL).*fn1
In ASCI I, the Department of Administrative Services of Allegheny County (County) and its private non-profit contractor, A Second Chance, Inc., (ASCI) (collectively, Appellees), appealed from the trial court order directing disclosure of ASCI's employee names, dates of birth and hire dates. The trial court determined the contractor information constituted public records related to a governmental function. Unconvinced that the record supported this result, this Court remanded with instructions to hold an evidentiary hearing regarding whether the records of ASCI, a third-party contractor, came within the parameters of the RTKL through Section 506(d) of the RTKL, 65 P.S. §67.506(d), and, whether the records were exempt under Section 708(b)(1)(ii), 65 P.S. §67.708(b)(1)(ii), the Personal Security exception.
On remand, the trial court held the employee information did not directly relate to ASCI's performance of the contract; thus, it was not subject to disclosure. The trial court also concluded that Appellees did not prove the Personal Security exception applied. In dicta, the trial court added that dates of birth are protected by the Personal Identification exception of the RTKL, 65 P.S. §67.708(b)(6)(i). The trial court vacated its earlier order and reversed the final determination of the OOR.
Requester appealed, arguing the information is necessary for contract oversight. Appellees maintain the employee information does not pertain to performance of the direct social services ASCI provides under the contract, and they ask us to affirm. Upon thorough analysis and review, we affirm the trial court.
I. Background and Case History
Parsons is an investigative reporter for WTAE-TV. He frequently obtains information for news stories through the RTKL. WTAE-TV is a Pittsburgh television station for which Parsons reports.
The County Department of Human Services is comprised of several programmatic offices, including the Office of Children, Youth and Families, which contracts with entities, including ASCI, to perform direct social services for the County.
ASCI is a private non-profit corporation that performs social services for the County. It employs 126 individuals who are paid in part through funds from ASCI's contract with the County. The majority of its employees provide direct services to clients as part of the foster care program that seeks to place children with family and friends of family, known as the "kinship care" program. ASCI is licensed by the Department of Public Welfare to operate as a private children and youth agency and to provide adoption services and foster family care.
Requester submitted a request to the County seeking "payroll lists" of ASCI, its third-party contractor. Requester initially sought the "full name of each employee, job position/title, salary and hire date." ASCI I, 13 A.3d at 1027. In response, the County advised the payroll list of ASCI was not within its possession, custody or control; therefore, it could not be provided.
Requester countered that the defense was not valid because ASCI is a contractor of the County. Requester repeated the request on July 15, 2009, as to ASCI's payroll list containing specified information, including employee names, dates of birth and hire dates (Request). Reproduced Record (R.R.), Proposed Findings of Fact Adopted at 969a.
The County denied the Request in part, as to records outside its possession. The County provided the job position/title and salary information, but denied employee names, hire dates, and dates of birth as "[n]o such record exists in the County." ASCI I, 13 A.3d at 1028. The County did not assert any substantive exemptions.
Requester appealed the partial denial to the OOR. The OOR issued a final determination directing the County to retrieve the requested information (employee names, dates of birth, and hire dates) from ASCI and provide them to Requester. The County appealed OOR's final determination to the trial court, at which time ASCI intervened in the case.
The trial court directed the County to "obtain the names, birth dates and hire dates of all employees of [ASCI] who provide services to Allegheny County pursuant to Allegheny County's agreement with [ASCI] and provide such information to Appellees [Requester]." Id. The trial court reasoned that ASCI performs a governmental function for the County within the meaning of Section 506(d)(1) of the RTKL. As a result, the names, dates of birth and hire dates of all ASCI employees who provide direct social services to the County directly relate to the governmental function. The trial court also held that ASCI and the County failed to submit evidence that disclosure of the information was subject to the Personal Security exception, and it held the Personal Identification exception (Section 708(b)(6)(i) of the RTKL, 65 P.S. §67.708(b)(6)(i)), did not expressly prohibit disclosure.
In ASCI I, both the County and ASCI appealed. The County's appeal focused upon the interpretation of Section 506(d), and whether the fact that the information sought is not provided to the County is pertinent to whether the records are accessible. ASCI's appeal challenged the trial court's holding that certain exceptions did not protect the information. ASCI contended the employee information was protected by the Personal Security exception, and its release would not be consistent with the intent of the RTKL as to private contractors.
In ASCI I, Requester asserted that all substantive exceptions to disclosure were waived because the County failed to assert them in its denial. We held in ASCI I that there was no waiver of the issue because the County generally argued the information was "private" in nature. Id. at 1031. We further held the employee information did not qualify as records "of" the County since it was not, and never was, in its possession, custody or control. Id. at 1036.
With regard to Section 506(d), we explained that, contrary to the County's contention, Section 506(d) may reach records that are not in an agency's possession, custody or control provided the third party in possession has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function. We underscored that Section 506(d) does not involve only possession or location, and we noted the RTKL renders such limitations irrelevant to access. The parties did not dispute that the direct services ASCI performs on the County's behalf constitute a governmental function, so we did not further analyze that aspect of Section 506(d).
We explained that the direct relationship that must be shown is to the performance of the governmental function, and not records that are incidental to preparation for the contract, or to the contractor's day-to-day operations unrelated to the services performed. The records must "'directly relate' to carrying out the governmental function." E. Stroudsburg Univ. Found. v. Office of Open Records, (ESU Foundation), 995 A.2d 496, 504 (Pa. Cmwlth. 2010) (en banc) (interpreting Section 506(d) broadly to reach records of third party that fund-raised for University).
We determined in ASCI I that the trial court did not sufficiently explain how the three pieces of contractor employee information directly related to performing the social services for which the County contracted. We also concluded the record did not establish any direct relationship. We further advised that whether the actual names, birth dates and hire dates had any direct bearing on ASCI's contractual obligations could only be determined by examining the obligations set forth in the written contract between the County and ASCI. Id. Accordingly, we remanded to the trial court to take evidence on the matter. Id.
We further instructed the trial court to give ASCI the opportunity to create a record to substantiate the Personal Security exception in Section 708(b)(1)(ii) of the RTKL, and "determine whether the exemption applies based on the record evidence." Id. at 1042.
After a hearing, the trial court held that ASCI's employee information did not "directly relate" to the function of performing social services for the County. In coming to that conclusion, the trial court heard testimony from a number of witnesses regarding the contractual relationship between the County and ASCI.
Specifically, a number of representatives testified regarding the parameters of the contract and the relationship between the requested information and performance of the contract. ASCI caseworkers are required to pass certain criminal background checks, and that requirement is incorporated into the contract. Contract monitors review each employee's file for documentation regarding the employee's training and performance evaluations, and to confirm background checks.
Parsons and Adrianne Smith, a contract monitor, testified on behalf of Requester. Parsons' testimony focused upon the necessity for the names and dates of birth of ASCI employees in order to identify them and assess who is performing the services. The trial court struck Parsons' testimony as irrelevant because it did not pertain to any direct relationship between the information sought and the performance of contractual obligations. Smith testified that the requested information was not necessary for the County to confirm compliance with the contract. Smith testified she could verify ASCI's compliance even if names were redacted from the personnel files reviewed.
The trial court concluded "the governmental functions that [ASCI] performs on behalf of [the County] are kinship foster care, as well as adoption and permanent legal custodian services." See R.R. at 992a. ASCI's role in performing these functions necessitated the exercise of discretion and judgment. Id. The trial court concluded the County monitored the quality of performance by ASCI. Id. Focusing upon the governmental function, the trial court reasoned that the requested employee information did not pertain to the type or quality of services performed. The trial court found that the County did not use the information to monitor compliance with the contract, and that it did not enter the contract based upon any of the withheld information. The identity of employees was unknown to the County and did not affect the services rendered. Also, the requested information did not pertain to performance of the contract.
The trial court also ruled that regardless of its holding on direct relationship, the remand necessitated that it address the substantive exception asserted to protect the information. In a footnote, the trial court stated that the County and ASCI did not meet their burden to demonstrate that names and dates of birth are protected by the Personal Security exception. In dicta, the trial court stated dates of ...