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City of Harrisburg v. Prince

Commonwealth Court of Pennsylvania

May 10, 2018

City of Harrisburg
Joshua Prince, Esq., Appellant

          Argued: June 7, 2017




         Joshua Prince, Esq. (Requester) appeals the order of the Dauphin County Court of Common Pleas (trial court) affirming in part, and reversing in part, a Final Determination of the Pennsylvania Office of Open Records (OOR). The trial court affirmed that portion of OOR's Final Determination finding that no other responsive records exist in the custody or control of the City of Harrisburg (City) and reversed that portion of the Final Determination directing that the identity of the names and addresses of donors to the "Protect Harrisburg Legal Defense Fund" (Fund) contained in a spreadsheet that lists check dates, check numbers, names, addresses, phone numbers, and amounts of monetary contributions (Spreadsheet) be disclosed pursuant to the Right-to-Know Law (RTKL).[1] We affirm.

         On February 25, 2015, Requester submitted a request to the City (Request) under the RTKL that sought the following records:

This is a request for all records, including, but not limited to, financial records pursuant to Section 102, [2] since January of 2015, relating to the US Law Shield, et al. v. City of Harrisburg, et al. and Firearm Owners Against Crime, et al. v. City of Harrisburg, et al. [cases] including, but not limited to the following: (1) All records, including, but not limited to, [the City's Fund] . . . [a]s provided for by Section 102, this specifically includes, but is not limited to, the names, addresses, and amounts of any donations to/receipts by the [City]; (2) All records, including, but not limited to, all financial accounts and financial institutions utilized by the [City] in relation to request (1); (3) All records, including, but not limited to, contracts, communications, and billings from or to Lavery, Faherty, Patterson or any other law firm or attorney hired to review the legal issues relating to request (1); and (4) Any other record in any way relating to the current litigation specified above.

Reproduced Record (R.R.) at 9a (emphasis added).

         On February 26, 2015, the City partially denied the request pursuant to Section 708(b)(13) of the RTKL, 65 P.S. §67.708(b)(13), [3] and provided Requester with a redacted donor list. R.R. at 10a, 14a, 18a. The City's open records officer (Records Officer) redacted the names, addresses, check numbers, and telephone numbers[4] of the donors who contributed to the Fund and provided the donation amounts to Requester. Id. at 12a. The Records Officer also explained that the City did not have any formal agreement or letter with the Lavery law firm, in that the City's former insurance company retained the firm; the City's new insurance company continued with the firm; the firm's hourly rate is $125.00; and, currently, there is no bill. Id. at 16a. On March 2, 2015, the Records Officer provided Requester with an updated, redacted donor list via email and indicated that the City uses Citizens Bank for the Fund account; there is currently no bill from the Lavery firm; no other firm is working on anything relating to the Fund; and asserted that any communications from the Lavery firm are protected by the attorney-client privilege. Id. at 19a-22a. Requester did not subsequently clarify the Request.

         On March 11, 2015, Requester appealed to the OOR, challenging the City's partial denial of the Request and asserting grounds for disclosure. R.R. at 24a, 36a. On March 12, 2015, the OOR invited the parties to supplement the record and directed the City to notify third parties of their ability to participate in the appeal. Id. at 32a-33a. On March 18, 2015, the Records Officer reiterated his reason for redacting the donor records, stating that he was unsure what contracts or bank institution information was requested, and asking Requester to be specific so that he can try to get the requested documents. Id. at 31a.

         On March 23, 2015, Requester submitted a brief in support of his appeal, arguing that the City did not meet its burden of proving that the requested records were exempt from disclosure, and that the exception under Section 708(b)(13) of the RTKL does not apply because the donations to the Fund are intended for the personal tangible benefit of the Mayor and City Council members who are public officials and employees of the City. R.R. at 41a. Requester also asserted that the City did not provide all of the requested records, including "account numbers, account totals, and other information relating to the financial accounts utilized by the City" with respect to the Fund; all "records relating to the implementation, control, maintenance and function" of the Fund; documents executed in establishing the Fund; contracts, communications, and billings from or to the Lavery firm; and any other records relating to the U.S. Law Shield litigation, including City Council meeting minutes. R.R. at 42a-43a. Requester also argued that the communications between the City's insurance company and the Lavery firm would be subject to disclosure under Section 506(d)(1) and (3) of the RTKL. Id. at 43a.[5] Finally, Requester claimed that, to the extent that the Records Officer failed to disclose any other records relating to the litigation, this lack of response must be viewed as a deemed denial and that the Records Officer should be ordered to disclose those documents. Id.

         In order to fully develop the record on appeal, the OOR requested the following additional information from the City in the form of an affidavit: (1) what the Fund is; (2) whether the Fund is a City financial account or one of a third party for profit or non-profit; (3) whether the amounts are donated to the City or a third party; and (4) whether the donors on the redacted list are individuals, corporations, entities, etc. R.R. at 45a.

         In response, the City's Solicitor, Neil Grover, provided an unsworn statement providing the following: (1) the Fund is "a subaccount/line item of the Police Protection Special Revenue Fund (SPF) of the City"; (2) "[a]ll SPFs have their own bank account. All expenditures from this fund are line item appropriated by Council as per the normal budgeting process"; (3) "[a]ll revenues received for this SPF are donated directly to the City, deposited by Treasury (checks are written to 'City Treasurer') and accounted for in the City's General Ledger/accounting system"; and (4) all donors on the redacted list provided are individuals, not corporations or any other entities. R.R. at 72a. The Solicitor asserted that because the donor information is exempt from disclosure, the City is not required to give third parties notice pursuant to Section 707(a) of the RTKL, 65 P.S. §67.707(a). Id. at 75a-76a.

         The Solicitor also provided a sworn attestation made under the penalty of perjury, stating that the Records Officer, in consultation with Solicitor Grover, thoroughly examined the files in the possession, custody, and control of the City for records responsive to the request, that inquiries with relevant City personnel and third-party contractors were made in determining whether any responsive records were in their possession, and that the City made a good faith effort in providing all responsive records, in addition to the supplemental information requested by OOR. R.R. at 78a-79a.

         On April 9, April 17, and April 27, 2015, Requester submitted further support for his appeal including, inter alia, the trial court's opinion in U.S. Law Shield of Pennsylvania, LLC v. City of Harrisburg, (C.C.P. Dauph., No. 2015 CV 00255 EQ, filed February 25, 2015) (holding that at least three of the City's gun ordinances were unlawful and granting a preliminary injunction in relation to the enforcement of those ordinances), [6] arguing that the donations being made to the City in relation to the City's ordinances are unlawful in light of U.S. Law Shield, and that Section 708(b)(13) does not apply because it only applies to "lawful" donations. R.R. at 50a, 55a. Requester argued that the City failed to notify any third parties in the matter pursuant to Section 1101(c) of the RTKL, 65 P.S. §67.1101(c).[7] R.R. at 50a, 85a. Requester also claimed that in response to an almost identical request to the City of Lancaster, that city produced 418 pages of applicable records. Id. at 84a, 87a. Requester challenged the veracity of the Solicitor's attestation, requested an in camera review of all records in the City's possession relating to his RTKL request, and again questioned whether notice was given to third parties. Id. at 84a-85a.

         On April 27, 2015, OOR issued its Final Determination granting in part, and denying in part, Requester's appeal. R.R. at 122a, 124a-125a. OOR concluded that because the City submitted only an unsworn attestation from its solicitor and not a sworn affidavit or statement establishing that Section 708(b)(13) applies, the City failed to meet its burden of proving that the requested donor information is exempt from disclosure under the RTKL. R.R. at 123a. OOR also concluded that the City had demonstrated that no other responsive records exist in its possession, custody, or control, relying on the Solicitor's sworn attestation included at the end of his response to the OOR's request for additional information. R.R. at 124a. The OOR directed that the City provide an unredacted donor list to Requester within 30 days of the determination, subject to this Court's holding in Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, 110 A.3d 1076 (Pa. Cmwlth. 2015) (PSEA II)[8] (enjoining the OOR and public school districts from disclosing the home addresses of public school employees until the affected employees have had written notice and a meaningful opportunity to object at the request stage as required by Article I, Section 1 of the Pennsylvania Constitution). R.R. at 123a, 125a. On May 27, 2015, the City appealed the OOR's Final Determination to the trial court.

         In its petition for review, the City argued, inter alia, that OOR erred as a matter of law and abused its discretion in: (1) disregarding the donor exception in Section 708(b)(13) of the RTKL and in directing the release of that information to Requester, which would "subject[] [the donors] to harassment and den[y] them the statutory right to non-disclosure"; and (2) "misapplying municipal law on the protections afforded local officials . . . who are identified in claims against a municipal government, " as the City is the sole party responsible for paying the legal fees associated with the actions for which the Fund was created. R.R. at 131a-133a.

         In his cross-petition for review, Requester argued, inter alia, that OOR erred as a matter of law, and that the City still has other responsive documents in its possession. R.R. at 262a-267a. Requester also submitted a brief in support of OOR's Decision and an affidavit, arguing for the first time that the donor exception in Section 708(b)(13) does not apply to financial records under Section 708(c), which "prevents the application of [65 P.S.] §67.708(b)(13) to financial records as a matter of law." R.R. at 12b, 43b-48b.[9] The City filed another brief and a sworn affidavit of the Solicitor, [10] in which he maintained that the donor names and addresses were properly redacted pursuant to the donor exception in Section 708(b)(13) of the RTKL, the City conducted a good faith review of the City's records, and that the City properly raised the attorney-client and attorney work product privileges. Id. at 421a-423a, 133b.

         On September 24, 2015, following two hearings and oral argument, the trial court issued a Memorandum and Order disposing of the City's appeal. The trial court affirmed OOR's determination that no other responsive records exist in the custody or control of the City, and reversed the OOR's determination that the identity of the donors to the Fund must be disclosed. Trial Court 9/24/15 Memorandum and Order at 3, 4. The trial court concluded that the supplemental affidavit of the Solicitor submitted to the court was "competent evidence, " "indicates that the [F]und was set up by the City to help the City defray legal expenses associated with defending challenges to local firearm ordinances, " and "that the donations at issue cannot and do not provide remuneration or personal tangible benefit to any public official or employee of the City." Id. at 2. As a result, the trial court determined that "the City has met its burden of proving that the donor information is exempt from disclosure" under Section 708(b)(13) of the RTKL. Id. The trial court also determined that the City established that no other responsive records exist in its possession, accepting as true the Solicitor's sworn attestation that was submitted to the OOR. Id. at 3. Requester now appeals the trial court's order to this Court.


          On appeal, [11] Requester first argues that the trial court erred in reversing OOR's determination that the names and addresses of the private donors to the Fund contained in the Spreadsheet must be disclosed because it is a "financial record" as defined in Section 102 of the RTKL.[12] Requester asserts that the Spreadsheet containing the donor information provided in relation to the Request is clearly an "account" or "voucher" that deals with the "receipt . . . of funds by an agency" and, therefore, falls within the definition of "financial record" in Section 102. Thus, although the records would disclose the identity of the individual making the donation, and personal identifying information that is otherwise exempt under Section 708(b)(13) (because the donor records in this case are contained within a financial record), Requester argues that the records are subject to disclosure under Section 708(c) of the RTKL. Thus, Requester contends that the donor information must be disclosed.[13]

         The City counters that the trial court did not err in reversing OOR's determination because the donor information is protected under Section 708(b)(13). The City contends that Section 706 of the RTKL, 65 P.S. §67.706, [14] permits the redaction of financial records, and if the definition of "financial record" in Section 102 is read too broadly, as Requester suggests, the donor exception in Section 708(b)(13) will be rendered a nullity.

         In interpreting the RTKL, we are guided by the well-recognized principles of statutory construction. Pursuant to Section 1921(a) of the Statutory Construction Act of 1972, "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, " and "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa. C.S. §1921(a). In ascertaining the intent of the Legislature in enacting a statute, Section 1922 states that it is presumed "[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable" and "intends [that] the entire statute . . . be effective and certain." 1 Pa. C.S. §1922(1), (2). Moreover, Section 1921(b) provides, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. C.S. §1921(b).

         Under Section 305 of the RTKL, 65 P.S. §67.305, there is a presumption that all records in the possession of a local agency are presumed to be public records unless: (1) a record is exempt under Section 708; (2) a record is protected by a privilege; or (3) a record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree. "Record" is defined, under Section 102, as follows:

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 data-processed or image-processed document.

65 P.S. §67.102.

         Relevant to the Request herein, Section 708(b)(13) exempts from access "[r]ecords that would disclose the identity of an individual who lawfully makes a donation to an agency . . . including . . . donor profile information or personal identifying information relating to a donor, " except as provided in Section 708(c). 65 P.S. §67.708(b)(13). Section 708(c) provides that "[t]he 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 specified Subsections of Section 708(b), of which Subsection (b)(13) is not included. 65 P.S. §67.708(c) (emphasis added). As noted above, "financial record" is defined in Section 102 in pertinent part, as "[a]ny account, voucher or contract dealing with . . . the receipt or disbursement of funds by an agency [] or . . . an agency's acquisition, use or disposal of services, supplies, materials, equipment or property." 65 P.S. §67.102.

         With respect to the ambit of what constitutes a "financial record" under Sections 102 and 708(c), the Supreme Court has explained:

[W]hile [the agency and its contractors] would prefer to emphasize the definitional language associating contracts and disbursements with a government agency, the statute plainly reaches more broadly via its prescription that "financial records" encompass records "dealing with" disbursements of public money and services acquisitions by agencies. See 65 P.S. § 67.102; cf. N. Hills News Record v. Town of McCandless, [722 A.2d 1037, 1039 (Pa. 1999)] (explaining that language within the former open-record's law's definition of "public record"-which the Legislature reposited in the definition of "financial record" under the new Law-reaches some range of records beyond accounts, vouchers, or contracts, subsuming records which "bear a sufficient connection" to such fiscally-related categories).

Department of Public Welfare v. Eiseman, 125 A.3d 19, 29-30 (Pa. 2015) (footnote omitted). See also Pennsylvania State University v. State Employees' Retirement Board, 935 A.2d 530, 534 (Pa. 2007) ("[T]he term 'account' is to be broadly construed for the benefit of the public, encompassing, at minimum, the Commonwealth's financial records of debit and credit entries, as well as monetary receipts and disbursements."); LaValle v. Office of General Counsel, 769 A.2d 449, 456 (Pa. 2001) ("[T]he [RTKL] reaches some class of materials that are not facially accounts, vouchers, contracts, minutes, orders or decisions. The general constraint upon this expanded class that became relevant in McCandless was that the party seeking to inspect government records must establish some close connection between one of the statutory categories and the materials sought.").

         The names and addresses in the Spreadsheet sought herein are not sufficiently connected to any City account, voucher, or contract to constitute a financial record subject to disclosure under the RTKL; rather the information in the Spreadsheet is merely a collation of data with respect to the donors of private funds that is subject to exemption. The private funds voluntarily donated to the City by check were not "received" by the City, and did not become agency funds for purposes of the RTKL, until they were deposited into a City account, and the City's internal compilation of private donor information does not have a sufficiently close connection to such account to be considered a financial record under the RTKL. In short, records relating to the actual receipt and disbursement of the privately donated nongovernmental funds by the City into and from a City account are "financial records" for purposes of the RTKL; documents unrelated to the foregoing financial transactions are not "financial records" and are subject to exemption. See, e.g., Tribune-Review Publishing Company v. Department of Community and Economic Development, 859 A.2d 1261, 1268 (Pa. 2004) ("Neither 'the log' nor the information it contains could be characterized fairly as an account, contract, or voucher to accompany or memorialize funding. . . . While the database does indicate whether certain applications have been awarded Program funding, it is simply an electronic storage facility, and not a decisional document.").[15]

         As a result, the trial court did not err in determining that the requested donor Spreadsheet information is exempt from disclosure under Section 708(b)(13) of the RTKL. See The Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 729-30 (Pa. Cmwlth. 2016), appeal denied, 169 A.3d 539 (Pa. 2017) (holding that private individuals' volunteering of their time and services and the use of their property to a municipal program, without compensation, constitutes a "donation" for purposes of Section 708(b)(13), and affirming a trial court's holding that the donor exception applied to all but one of withheld emails containing donor information).

         Moreover, if the Spreadsheet is deemed to be a "financial record" for purposes of Section 708(c) as Requester suggests, the donors' names and addresses would still be subject to redaction. It should be noted that Section 708(c) preserves the exception provided in Subsection (b)(6) that includes, in relevant part, "[t]he following personal identification information: . . . A record containing all or part of a person's . . . personal financial information [and] home, cellular or personal telephone numbers . . . ." 65 P.S. §67.708(b)(6)(i)(A). In turn, Section 102 defines "personal financial information" as "[a]n individual's personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual's personal finances." 65 P.S. §67.102 (emphasis added).

         In Department of Conservation and Natural Resources v. Office of Open Records, 1 A.3d 929 (Pa. Cmwlth. 2010), the Office of the Budget (Budget), the Department of Conservation and Natural Resources (DCNR), and the Department of General Services (DGS) (collectively, Agencies), appealed separate, but related, OOR decisions requiring the Agencies to release unredacted certified payroll records supplied to them by third-party contractors that had entered into contracts with the Commonwealth for public projects. The third-party contractors submitted the certified payroll records to the Agencies to prove their compliance with the Pennsylvania Prevailing Wage Act, Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§165-1 - 165-17 (PWA). The records contained information relating to each of the contractors' employees who worked on each project including each employee's name, Social Security number, home address, rate of pay, gross amount of wages earned, number of hours worked, amount deducted for taxes and/or benefits, and net pay. In response to RTKL requests for these records, the Agencies produced redacted versions. The requesters challenged the redacted records that were supplied to them, and OOR appeals officers directed the Agencies to release unredacted copies of the records. On appeal, the Agencies argued, inter alia, that the names and addresses of their employees were properly redacted from the disclosed payroll records under the personal financial information exemption such that the information that was provided satisfied the requirements of the RTKL.

         In reversing the OOR determinations and applying the personal financial exemption of Section 708(b)(6)(i)(A), we explained:

Though the exemptions in subsection (b) of Section 708 of the RTKL do not apply to financial records, such as the certified payroll records here, subsection (c) nonetheless provides that an agency "may redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (6), (16) or (17)." Id. Here, the Agencies produced redacted copies of the certified payroll records. [OOR] held that the Agencies erred in redacting the names and/or home addresses of the third-party contractors' employees in those records. We find no error in the Agencies' decisions to exercise discretion afforded to them under the RTKL and to release the certified payroll records as redacted.
In its brief to the [OOR] appeals officer, DCNR explained its reasons for redacting the home addresses as follows:
The certified payrolls that are the subject of the instant RTKL request contain the name of the employer and the name, address, job classification, hourly rate of pay, number of hours worked during the reporting period, wages and fringe benefits paid, and deductions made for each listed employee. These employees are not agency employees and there can be no question that this constitutes personal financial information. However, in order to provide information that may be useful to monitor compliance with the [PWA], portions of the information have been supplied, but not the home address. When coupled with the other information in the payroll records concerning their wages and employment, the home addresses of employees constitute "other information relating to an individual's personal finances" and should therefore be exempt from disclosure under section 708(b)(6)(i)(A).
(R.R. at 9a (emphasis added)). This reasoning is persuasive and can be applied with equal force to Budget's and DGS's decisions to redact the names and addresses of the third-party contractors' employees-nongovernmental employees-from the certified payroll records. The financial information contained in the certified payroll records is only personal to the individual employees so long as the identity of the employees is attached to the information. Redaction of the names and/or addresses renders what was personal financial information, impersonal. The Agencies thus acted reasonably and within the bounds of their discretion by producing the certified payroll records in redacted form to protect the personal nature of the financial information contained in those records.

Department of Conservation and Natural Resources, 1 A.3d at 942 (emphasis in original and footnote omitted).

         Likewise, herein, the personal identification information contained in the Spreadsheet, if deemed to be a financial record, includes personal financial information such as the donors' names, addresses, and telephone numbers that would also properly be redacted by the City pursuant to the exemption in Section 708(b)(6)(i)(A) of the RTKL.[16] In sum, the trial court did not err in reversing that portion of OOR's Final Determination finding that the donors' names and addresses in the Spreadsheet are not subject to exemption under the relevant provisions of the RTKL, and Requester's claims to the contrary are without merit.


         Requester next argues that the trial court erred in permitting the City to supplement the record by accepting the Solicitor's supplemental affidavit. However, Requester concedes that "it [was] within the Court's discretion to allow supplementation of the record, " but "contends that the [City] should not be allowed to submit evidence that could have been submitted during the initial proceeding, which the [City] failed to do in a timely matter." Brief of the Appellant at 21.[17]

         Indeed, the trial court's review of OOR's Final Determination pursuant to Section 1302 of the RTKL, 65 P.S. §67.1302, [18] was de novo and the court was specifically empowered to accept and consider the Solicitor's ...

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