City of Harrisburg v. Prince, 1982 C.D. 2015

• Decision Date: 10 May 2018
• Docket Number: No. 1982 C.D. 2015,1982 C.D. 2015
• Parties: CITY OF HARRISBURG v. Joshua PRINCE, Esq., Appellant
• Court: Pennsylvania Commonwealth Court

186 A.3d 544

CITY OF HARRISBURG

v.Joshua PRINCE, Esq., Appellant

No. 1982 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued: June 7, 2017

Decided: May 10, 2018

Adam J. Kraut, Bechtelsville, for appellant.

Joshua M. Autry, Harrisburg, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE WOJCIK

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 numbers⁴ 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) (...