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City of Harrisburg v. Prince

Supreme Court of Pennsylvania

November 12, 2019

CITY OF HARRISBURG, Appellee
v.
JOSHUA PRINCE, ESQ., Appellant

          ARGUED: May 14, 2019

          Appeal from the Order of the Commonwealth Court at No. 1982 CD 2015 dated May 10, 2018, Affirming the Order of the Dauphin County Court of Common Pleas, Civil Division, at No. 2015-CV-4163-MP dated September 24, 2015

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          DONOHUE, JUSTICE

         We granted allocatur to decide whether a spreadsheet created by the City of Harrisburg (the "City") to show the receipt of funds from donors (the "donor spreadsheet") to the Protect Harrisburg Legal Defense Fund (the "Fund") constitutes a financial record as defined in 65 P.S. § 67.102 of the Right-to-Know Law ("RTKL"), 65 P.S. §§ 67.101-67.3104.[1] City of Harrisburg v. Prince, 197 A.3d 1170 (Pa. 2018) (per curiam). As discussed herein, although records that would disclose the identity of individual donors are generally exempted from disclosure under the RTKL, if those records may be characterized as financial records, public access is statutorily required. Because we hold that the Commonwealth Court erred in concluding that the donor spreadsheet was not a financial record, we reverse. However, in light of our decision in Pennsylvania State Educ. Ass'n v. Commonwealth, Department of Community and Economic Development, 148 A.3d 142 (Pa. 2016) ("PSEA II"), we hold that the case must be remanded for the performance of a balancing test to determine whether any of the donors' personal information may be protected from access under Article 1, Section 1 of the Pennsylvania Constitution. Accordingly, we remand to the Commonwealth Court for further proceedings.

         I. Background

         Under the RTKL, records in possession of a local agency are generally presumed to be public records, subject to certain exceptions. 65 P.S. § 67.305; see also id. § 67.102.[2] Pursuant to section 701, "[u]nless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act." Id. § 67.701. However, if an agency determines that a record which is subject to access contains information that is not subject to access, the agency may redact the information that is not subject to access. Id. § 67.706.

         Additionally, certain exceptions (or exemptions) apply to the general rule that public records are subject to access. See id. § 67.708(b). Specifically, as relevant here, subsection 708(b) of the RTKL provides:

(b) Exceptions.--Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act:
* * *
(13) Records that would disclose the identity of an individual who lawfully makes a donation to an agency unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official or employee of the agency, including lists of potential donors compiled by an agency to pursue donations, donor profile information or personal identifying information relating to a donor.

65 P.S. § 67.708(b)(13) (emphasis added) (hereinafter, the "donor exception").[3] Subsection 708(c), in turn, provides:

(c) Financial records.--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)(1), (2), (3), (4), (5), (6), (16) or (17). An agency shall not disclose the identity of an individual performing an undercover or covert law enforcement activity.

Id. § 67.708(c) (emphasis added).[4]

         Thus, while records that would disclose the identities of individual donors are generally exempted from public access, id. § 67.708(b)(13), if those records may be categorized as "financial records," they are nonetheless subject to full disclosure (and may not be redacted), regardless of whether they would reveal the identities of individual donors, unless otherwise provided by law. Id. § 67.708(c). For this reason, whether a given public record is a financial record is potentially outcome determinative in terms of the public's ability to access and inspect it.

         As defined in section 102 of the RTKL, a financial record is:

(1) Any account, voucher or contract dealing with:
(i) the receipt or disbursement of funds by an agency; or
(ii) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property.
(2) The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee.
(3) A financial audit report. The term does not include work papers underlying an audit.

Id. § 67.102.

         On February 25, 2015, Appellant Joshua Prince ("Prince") submitted a RTKL request to the City seeking records related to the Fund, which the City created to defray legal costs associated with defending challenges to local firearms ordinances. Prince's request sought the following:

This is a request for all records, including, but not limited to, financial records pursuant to [s]ection 102, 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 Fund]. ... As provided for by [s]ection 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.

City of Harrisburg v. Prince, 186 A.3d 544, 548 (Pa. Commw. 2018) (internal footnotes omitted).

         On February 26, 2015, citing subsection 708(b)(13) of the RTKL, the City's records officer partially denied Prince's request and, as relevant here, provided Prince with a redacted donor list. It revealed the donation amounts and dates but redacted the names, addresses, check numbers and telephone numbers of the donors who contributed. Several days later, the City provided Prince with an updated redacted spreadsheet and also disclosed, by email, that it uses Citizen's Bank for the Fund account.[5]

         Prince appealed to the Office of Open Records ("OOR"). In a letter dated March 12, 2015, the OOR responded by inviting the parties to submit additional information and legal argument within seven days. The OOR also advised the City that it must notify any third parties of their right to participate in the appeal and cautioned that a third party's failure to participate "may be construed as a waiver of objections regarding release of the requested records."[6]

         On April 9, 2015, to more fully develop the record, the OOR requested specific additional information from the City about the Fund.[7] In response, the City's Solicitor, Neil Grover, explained that the Fund is (1) "a subaccount/line item of the Police Protection Special Revenue Fund (SPF) of the City"; (2) "all SPFs have their own bank account. All expenditures from this fund are line item appropriated by Council as per the normal budgeting process"; (3) "all 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 of the donors on the redacted spreadsheet are individuals, not corporations or other entities.

         In response to the OOR directing the City to notify third parties of their right to participate in the appeal, and to Prince's demand for proof of such notification, the City again cited subsection 708(b)(13). The City urged that the notification requirement was inapplicable because donor information was exempt from disclosure and therefore properly redacted on the spreadsheet. In the alternative, the City argued that even if subsection 708(b)(13) somehow did not protect donor information on the spreadsheet from disclosure, third party notification was unnecessary because the donor spreadsheet was created by the City, not by a third party.[8]

         In its final determination, the OOR concluded that because the City had failed to provide a sworn affidavit establishing subsection 708(b)(13)'s applicability, it had therefore failed to meet its burden of proof that the redacted information was exempt from disclosure.[9] Accordingly, the OOR directed the City to supply Prince with the unredacted donor spreadsheet within thirty days.

         The City filed a petition for review appealing the OOR's final determination in the Dauphin County Court of Common Pleas and subsequently supplemented the record with a sworn affidavit from Solicitor Grover.[10] The trial court reversed the OOR's final order, concluding on the basis of this affidavit that the City had met its burden of proving that ...


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