Hoffman v. Com., Pennsylvania Game Com'n
| Decision Date | 11 January 1983 |
| Citation | 455 A.2d 731,71 Pa.Cmwlth. 99 |
| Parties | Lou HOFFMAN, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA GAME COMMISSION, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Steven J. Schiffman, Serratelli & Schiffman, and Robert E. Rains, Rains & Jacobsen, Harrisburg, for petitioner.
Jay C. Waldman, Gen. Counsel, Stuart Bliwas, Gen. Counsel, Pa. Game Com'n, Harrisburg, for respondent.
Before BLATT, WILLIAMS and CRAIG, JJ.
One of our key statutes allowing citizens to see the records created through tax expenditures is the traditionally-named Right-To-Know Law, Act of June 21, 1957, P.L. 390, as amended, which in Section 2 simply and clearly states:
Every public record of an agency, shall at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.
Petitioner Hoffman wrote to the executive director of the Pennsylvania Game Commission requesting an opportunity to inspect and copy the subscriber mailing list for the Pennsylvania Game News, a state magazine expressly authorized by the Game Law, the Act of June 3, 1937, P.L. 1225, as amended, § 205, 34 P.S. § 1311.205, as one of the "bulletins" or items of "literature" which "may be necessary to the work of the commission ...." Mr. Hoffman's letter offered reimbursement for reasonable costs incurred in the reproduction of the subscribers' list, asking to discuss the format in which the material might be available.
In a prompt replying letter, the chief counsel of the commission, after expressly stating that the letter had been referred to him for reply, refused the request on the ground that the publication of the Pennsylvania Game News is a "proprietary" function, adding:
If you disagree with my opinion, you, of course, have the privilege of initiating such litigation as to a final determination of the legal issues involved. However, I should point out to you that in the event it appears that my position is legally incorrect at the first level of litigation, in the ensuing years for which it will take to come to a final decision within the second level of litigation, I expect that the Game Commission will seek relief in the General Assembly.
Mr. Hoffman has appealed under Section 4 of the Right-To-Know Law, 65 P.S. § 66.4, which provides that any citizen denied a right granted under that law may appeal to court.
The commission, by its same chief counsel, now has moved to quash the appeal for failure to exhaust administrative remedies, a motion which must be viewed as coming with some inconsistency, if not with ill grace, after the chief counsel's written advice that Mr. Hoffman's alternative was to initiate litigation. The letter clearly referred to litigation in court because it spoke of the "second level of litigation" as the final--obviously the Supreme Court--level and granted the possibility of the commission's view being found to be incorrect at the "first level," obviously this court. 1
The commission relies upon 58 Pa.Code § 145.1-145.3, authorizing administrative hearings before the commission when "any party to a Commission proceeding" is adversely affected by commission action. Concomitantly, the commission attacks the validity of its own refusal, through its chief counsel's letter, by citing the Administrative Agency Law, 2 Pa.C.S. § 504, providing that no adjudication of a Commonwealth agency shall be valid unless the agency has afforded a hearing pursuant to reasonable notice.
These provisions, however, must bow to the exclusivity of the statutory appeal to court provided by Section 4 of the Right-To-Know Law, the remedy denominated as exclusive by the Pennsylvania Supreme Court in Wiley v. Woods, 393 Pa. 341, 350, n. 9, 141 A.2d 844, 849, n. 9 (1958), by the Superior Court in Barton v. Penco, 292 Pa.Superior Ct. 202, 204, n. 2, 436 A.2d 1222, 1223, n. 2 (1981), and by this court recently, in Lewis v. Thornburgh, --- Pa. Commonwealth Ct. ---, 448 A.2d 680, 682 (1982). The commission contends that administrative proceedings should be held so that the commission can voice its reasons for refusal and then, again inconsistently, argues that administrative proceedings should be held so that the commission could consider the methods and cost to be associated with providing these records--which it has flatly refused to provide. The commission also argues that the sum total of the cost at which it might arrive--for providing records which it refuses to provide--could be so great that the applicant could be discouraged. These contentions suggest the thought that the General Assembly, in enacting the Right-To-Know Law, may well have mandated the direct remedy of a statutory appeal to court with some recognition of the tactics of delay and discouragement which could be encountered in administrative proceedings at the hands of an agency determined to keep its records under wraps. The motion to quash will be denied.
The questions on the merits, as submitted by petitioner, concern (1) the fundamental entitlement of a citizen to inspect and copy the...
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