LaValle v. OFFICE OF GEN. COUNSEL OF COM.

• Decision Date: 20 April 2001
• Citation: 564 Pa. 482,769 A.2d 449
• Parties: Gerald J. LaVALLE and Richard A. Kasunic, Individually and in their Capacities as Elected Members of the Senate of the General Assembly of Pennsylvania, Appellants, v. OFFICE OF GENERAL COUNSEL OF THE COMMONWEALTH of Pennsylvania, Appellee.
• Court: Pennsylvania Supreme Court

769 A.2d 449

564 Pa. 482

Gerald J. LaVALLE and Richard A. Kasunic, Individually and in their Capacities as Elected Members of the Senate of the General Assembly of Pennsylvania, Appellants, v. OFFICE OF GENERAL COUNSEL OF THE COMMONWEALTH of Pennsylvania, Appellee.

Supreme Court of Pennsylvania.

Submitted October 26, 2000.

Decided April 20, 2001.

Jeff Foreman, Harrisburg, for LaValle & Kasunic, Elected Members of the Senate of Pa.

Brian P. Gottlieb, for Amicus-PA Newspaper Assn.

Roger E. Grimaldi, Sandra W. Stoner, Anthony S. Potter, James M. Sheehan, Harrisburg, for Commonwealth of Pennsylvania.

Before: FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

This appeal concerns a request for access to a document pursuant to the Right to Know Act, lodged with the Office of General Counsel by two members of the Pennsylvania General Assembly.

In December, 1997, and February, 1998, the Honorable Gerald J. LaValle, a member of the Senate of Pennsylvania, directed several letters to the Office of General Counsel ("OGC") seeking access to a report that had been prepared by Ernst & Young LLP, an accounting consultant to the Commonwealth, Department of Transportation ("PennDOT"). Ernst & Young had been retained in connection with litigation commenced against the Commonwealth by Envirotest Partners ("Envirotest"). In this litigation, Envirotest had alleged that, by abandoning a large-scale, centralized automotive emissions testing program, PennDOT breached a government contract providing for Envirotest's administration of such program; in settlement of this action, the Commonwealth ultimately had paid in excess of $145 million to Envirotest. Apparently having received no response to his prior correspondence, on February 18, 1998, Senator LaValle and several other members of the Senate (including the Honorable Richard A. Kasunic) forwarded a letter to OGC stating an intention to commence a formal proceeding pursuant to Pennsylvania's Right to Know Act.¹ OGC then provided the Senators with a written refusal of their request, explaining that the Ernst & Young report was prepared to assist it and PennDOT in assessing and defending the Envirotest litigation, and that the report was not an audit. Providing no further description of the contents of the report,² OGC took the position that the document was protected under the work product doctrine and therefore was not within the categories of the records subject to mandatory public access under the Act. Alternatively, OGC indicated that if the document was within the general scope of public records under the Act, it was within a statutory "investigations" exception to the requirement of disclosure.

On appeal, in a divided opinion, the Commonwealth Court affirmed OGC's decision to deny the Senators' request for disclosure pursuant to the Act. See LaValle v. Office of General Counsel, 737 A.2d 330 (Pa.Cmwlth.1999). The majority explained that the Act provides for public access to certain "public records,"³ which are divided into two definitional categories: an accounts/vouchers/contracts category;⁴ and a minutes/orders/decisions category,⁵ the former of which was most directly pertinent to the question before the court. The Commonwealth Court majority then reviewed this Court's decision in Sapp Roofing Co. v. Sheet Metal Workers' Int'l, 552 Pa. 105, 713 A.2d 627 (1998)(plurality opinion), and portions of the discussion from North Hills News Record v. McCandless, 555 Pa. 51, 722 A.2d 1037 (1999). The majority noted that, in Sapp Roofing, a plurality of this Court concluded that a private contractor's payroll records in the possession of a school district, which records were related to work performed pursuant to a contract with the district, constituted public records within the accounts/vouchers/contracts category.⁶ The majority then quoted from McCandless the following assessment of Sapp Roofing:

"Implicit in the Court's decision in Sapp Roofing is the conclusion that the accounts/vouchers/contracts category of public records reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts. Nevertheless, it is clear from Sapp Roofing that, to constitute a public record, the material at issue must bear a sufficient connection to fiscally related accounts, vouchers or contracts."

LaValle, 737 A.2d at 332 (quoting McCandless, 555 Pa. at 55, 722 A.2d at 1039). The Commonwealth Court majority observed that Sapp Roofing, as reflected in McCandless, provided a more expansive interpretation of the accounts/vouchers/contracts category of public records than did its prior opinions, and it therefore took the opportunity to specifically overrule its prior precedent. See LaValle, 737 A.2d at 332 (overruling Butera v. Office of the Budget, 29 Pa.Cmwlth. 343, 370 A.2d 1248 (1977)).

Nevertheless, the majority noted that the Ernst & Young report would not comport with its prior interpretation of the accounts/vouchers/contracts category, since it did not reflect any actual disbursement of funds by the Commonwealth, but was commissioned for the express purpose of determining the extent of Envirotest's damages. Because, however, this Court had indicated that the accounts/vouchers/contracts category "reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts," McCandless, 555 Pa. at 55, 722 A.2d at 1039, the Commonwealth Court majority stated that the report might nonetheless constitute a public record under the Act. In this regard, the majority noted that "the Ernst & Young report was an audit⁷ of the materials submitted to the Commonwealth by Envirotest requesting payment for breach of contract[;][i]t was, therefore, in some ways similar to the private contractor's payroll records at issue in Sapp Roofing." LaValle, 737 A.2d at 332. The majority, however, engaged in no further examination of the record concerning the relationship between the report and fiscally-related accounts.

Instead, the Commonwealth Court majority effectively prescribed a separate prerequisite to qualification of materials as "public records" which it derived from Sapp Roofing, namely, a requirement that the records be essential to the performance of a mandatory statutory duty. The majority reasoned:

In Sapp Roofing, regulations implementing the Prevailing Wage Act required the agency to ensure that all wages due to workers by the contractor were paid, and to withhold the amount of unpaid wages from disbursements to the contractor. Thus, the private contractor's records were an "essential component" of the agency's decision, since a mandatory statutory duty could be performed only after a review of those records. In the present case, the Ernst & Young audit was not required by statute or regulation, and the Office of General Counsel was not obliged to act in any way upon the audit. Accordingly, we conclude that the audit, while tangentially relating to disbursements by the Commonwealth, was not an "essential component" of the decision to pay Envirotest and, as such, is not a "public record" under the Right-to-Know Act.

LaValle, 737 A.2d at 333.

In a concurring and dissenting opinion, Judge Kelley, joined by Judge Friedman, disagreed with the conclusion that the Ernst & Young report was not a public record under the Act. See LaValle, 737 A.2d at 333-35 (Kelley, J., concurring and dissenting). Judge Kelley stated that OGC admittedly relied upon the report to determine the extent of Envirotest's damages and that, in effect, "the report was a justification for ... the decision to pay Envirotest approximately $145 million plus interest from public funds." Id. at 333. In support of this conclusion, Judge Kelley noted that the Ernst & Young report had been referenced by various legislators in addressing inquiries concerning the basis for the Envirotest settlement. In these circumstances, Judge Kelley found it clear that the report was an "essential component" of the decision to pay Envirotest. Further, Judge Kelley stated:

There is an inherent responsibility of disclosure and the absolute duty of cooperation between the branches when inquiry is made by any member of the General Assembly with respect to obtaining a justification for the expenditure of public funds. When such an inquiry is made, it is mandatory for disclosure to occur. The Office of General Counsel, Executive Branch, is constitutionally obligated by implication to disclose the basis of the justification for any financial amounts requested from the General Assembly.

Notwithstanding a separate public contract with Envirotest, the report is a part of the justification for the requested amount. This essential information must be provided to the General Assembly as the body authorizing the expenditure of the public funds. Otherwise, by withholding justifying reports from the knowledge of the other branch which of necessity must authorize such money, we would be permitting one branch to act in total or partial ignorance when voting which needless to say would subvert our representative form of government.

LaValle, 737 A.2d at 335 (Kelley, J., concurring and dissenting).

We allowed appeal to determine whether the Ernst & Young report is a public record under the Act.

As a threshold matter, we review the requirement, prescribed by the Commonwealth Court majority, that a document must contain information essential to the performance of a mandatory, statutory duty in order to qualify as a public record pursuant to the Act, as well as the corresponding conclusion that the Ernst & Young report is not a public record, since the Senators failed to identify the requisite mandatory duty vested in PennDOT which could be performed only upon review of the report. Although the majority referred to Sapp Roofing in developing this requirement of a mandate, Sapp Roofing `s lead opinion imposed no such condition as a...