Envirotest Partners v. Com., Dept. of Transp.

• Decision Date: 17 August 1995
• Citation: 664 A.2d 208
• Parties: ENVIROTEST PARTNERS, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, and Richard W. Hayden, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 208

664 A.2d 208

ENVIROTEST PARTNERS, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION and Richard W. Hayden, Respondents.

Commonwealth Court of Pennsylvania.

Argued May 8, 1995.

Decided Aug. 17, 1995.

J. Bradford McIlvain, for petitioner.

Robert J. Shea, Assistant Chief Counsel, for respondent, Dept. of Transp.

Norman James Kennard, for respondent Richard W. Hayden.

Before KELLEY and NEWMAN, JJ., and KELTON, Senior Judge.

KELLEY, Judge.

Presently before this court for disposition are the preliminary objections of the Pennsylvania Department of Transportation (DOT) and Richard W. Hayden to the petition for review in the nature of a complaint for declaratory judgment of Envirotest Partners (Envirotest) filed in our original jurisdiction.

On January 30, 1995, Envirotest filed with this court a petition for review seeking a declaratory judgment determining that certain documents should not be produced by DOT to Hayden pursuant to what is commonly referred to as the Right to Know Act (Act). ¹ The facts as pled in Envirotest's petition are as follows.

Envirotest is a general partnership existing under the laws of Pennsylvania. Hayden is a lawyer residing in Philadelphia, Pennsylvania.

DOT issued a request for proposals (RFP) to perform the centralized emission inspection program (I/M Program) in twenty-five Commonwealth counties and selected Envirotest's Alternate Proposal 3 (proposal) as the winning proposal. As a result, Envirotest and DOT entered into a contract dated November 11, 1993, for Envirotest to perform the I/M Program. Paragraph 29d of the contract contains the following language:

To the extent permitted by law or order of court, the Commonwealth will attempt to honor any confidentiality request of the Contractor. This duty on the Commonwealth shall not apply to any disclosure by the Commonwealth as a result of any type of investigation. Prior to turning over any material requested, the Commonwealth will give at least five (5) days prior written notice to Contractor and afford Contractor the opportunity to review such request. The Commonwealth shall not comply with such request except pursuant to a final non-appealable court order.

The contract states further that "In the case of dispute, the order of precedence is, (1) this Contract, (2) the RFP 111142, 1987-1734, (3) the Contractor's Proposal dated September 7, 1993." ²

Envirotest advised DOT that certain designated portions of Envirotest's proposal contain confidential business information (confidential information) which Envirotest has spent significant funds to develop in order to obtain a competitive advantage over competitors, including Systems Control, Inc. Upon information and belief, Envirotest believes that Hayden represents Systems Control, Inc., a competitor of Envirotest.

Pursuant to the Act, Hayden made a written request to DOT on November 3, 1994, for release of contract documents pertaining to the Envirotest contract with DOT to provide construction and management services of centralized emissions inspection centers in Pennsylvania. DOT advised Envirotest that Hayden requested the confidential information.

In response, Envirotest filed the within petition seeking a declaratory judgment that all portions of its proposal designated confidential are not public records and, pursuant to the contract, should not be produced in response to requests asserted under the Act. As a basis for the requested relief, Envirotest avers, inter alia, in its petition that (1) the information requested by Hayden is not a public record as the contract does not deal with the receipt or disbursement of public funds; (2) access to or publication of the confidential information is prohibited, restricted or forbidden by Pennsylvania law; (3) access to or publication of the confidential information would prejudice or impair Envirotest's reputation by eliminating the competitive advantage provided by the confidential information which Envirotest has spent significant sums to develop; (4) access to or publication of the confidential information would result in the loss by the Commonwealth of federal funds; and (5) disclosure of the confidential portion of the proposal would unlevel the playing field in the event of a re-bid by allowing Envirotest's competitors to obtain such information.

In response to Envirotest's petition, both DOT and Hayden filed preliminary objections thereto. DOT has filed a preliminary objection in the nature of a demurrer alleging that Envirotest has failed to state a claim sufficient to permit an award of the relief requested. DOT's position is that the entire proposal is subject to disclosure under the Act as the contract and each of its elements is a public record as defined in the Act. Further, DOT avers that there is no cognizable basis for exempting any portion of Envirotest's proposal, which is incorporated by reference into the contract, from such disclosure under the Act.

Hayden's preliminary objections allege that this court lacks original jurisdiction over this matter as the Act vests only appellate and not original jurisdiction in this court. Hayden alleges further that Envirotest failed to timely appeal within thirty (30) days from DOT's determination granting Hayden's request for the public records; therefore, Envirotest's petition should be dismissed.

Hayden has also filed a preliminary objection requesting the dismissal of the petition for Envirotest's failure to state a cause of action. Hayden's allegations in support of this preliminary objection mirror DOT's allegations in support of its preliminary objection in the nature of demurrer.

Initially, we note that in ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Meier v. Maleski, 167 Pa.Commonwealth Ct. 458, 648 A.2d 595 (1994). The court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Id. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id. With these standards in mind, we consider DOT's and Hayden's preliminary objections first addressing the issue of this court's jurisdiction.

In support of its objection that this court lacks original jurisdiction and that Envirotest has failed to file a timely appeal, Hayden argues that, pursuant to the Act, this court has only appellate and not original jurisdiction. Hayden contends that since this court lacks original jurisdiction, the proper characterization of Envirotest's action is a petition for review under Pa.R.A.P. 1502 and Pa.R.A.P. 1503, which require that the petition for review shall be the exclusive procedure for judicial review of a governmental determination and that improvident appeals shall be regarded and acted upon as a petition for review of such governmental determination. Consequently, Hayden argues, Envirotest's petition is governed by Pa.R.A.P. 1511, Manner of Obtaining Judicial Review of Governmental Determinations, and Pa.R.A.P. 1512, which provides that a petition for review from a governmental determination shall be filed within thirty days of the date of the determination or entry of the order. Hayden points out that DOT granted his request for the disclosure of the public records by letter dated November 30, 1994, but that Envirotest did not file a petition for review from that determination until January 30, 1995, or sixty (60) days later. ³

We disagree with Hayden that Envirotest's petition should be treated as a petition for review in this court's appellate jurisdiction. Section 2 of the Act provides that "[e]very public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." 65 P.S. § 66.2. Pursuant to section 4 of the Act, any citizen of the Commonwealth denied any right granted to him by the Act may appeal from such denial. 65 P.S. § 66.4.

Under the plain language of the Act, judicial relief is afforded only to a citizen who is denied a right of access to a public record. City of Philadelphia v. Doe, 45 Pa.Commonwealth Ct. 225, 405 A.2d 1317 (1979). In the present case, Envirotest was not denied a right of access to a public record under the Act thereby enabling Envirotest to file an appeal pursuant to section 4 of the Act. Therefore, Envirotest properly filed a petition for review in the nature of a complaint for declaratory judgment in this court's original jurisdiction to determine whether the requested documents should be disclosed by DOT in response to Hayden's request under the Act. ⁴ Accordingly, Hayden's preliminary objection challenging this court's jurisdiction is overruled.

Next, we will address both DOT's and Hayden's preliminary objection alleging that Envirotest has failed to state a cause of action upon which relief may be granted. First, DOT and Hayden contend that the contract is a public record subject to disclosure for purposes of the Act. We agree.

As stated previously in this opinion, every public record of any agency shall be open for examination and inspection by any citizen of the Commonwealth. Section 2 of the Act, 65 P.S. § 66.2. A citizen's interest in seeking the disclosure is irrelevant; a citizen may not be denied access to public records because of lack of interest or for a lack of a "legitimate" purpose. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958); Gutman v. Pennsylvania State Police, 148 Pa.Commonwealth Ct. 567, 612 A.2d 553 (1992), petition for allowance of appeal denied, 533 Pa. 638, 621 A.2d 583 (1993).

Public record is defined in section 1 of the Act as:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or...