Martella v. Department of Transp.

• Decision Date: 26 January 2004
• Citation: 841 A.2d 633
• Parties: Joseph MARTELLA and Jacqueline Martella, Petitioners v. DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Pennsylvania Commonwealth Court

841 A.2d 633

Joseph MARTELLA and Jacqueline Martella, Petitioners v. DEPARTMENT OF TRANSPORTATION, Respondent.

Commonwealth Court of Pennsylvania.

Submitted December 11, 2003.

Decided January 26, 2004.

As Amended January 29, 2004.

Caram J. Abood, Johnstown, for petitioners.

Audrey Feinman Miner, Harrisburg, for respondent.

BEFORE: LEADBETTER, Judge, LEAVITT, Judge, and JIULIANTE, Senior Judge.

OPINION BY JUDGE LEAVITT.

Joseph and Jacqueline Martella (Petitioners) petition for review of an adjudication of the Pennsylvania Department of Transportation (PennDOT) denying Petitioners' request for documents under the law commonly known as the RIGHT-to-Know Law.¹ PennDOT held that the document sought by Petitioners was not a public record and, further, Petitioners' exceptions did not present their claim with sufficient detail, as required by the Right-to-Know Law. We review PennDOT's adjudication against the newly enacted amendments to the Right-to-Know to Know Law.²

Petitioners own a pharmacy on Franklin Street in Johnstown, Pennsylvania. The pharmacy is adjacent to a site where the Conemaugh Memorial Medical Center (the Medical Center) has proposed the construction of a parking lot. On April 22, 2003, Petitioners' counsel, Caram J. Abood, sent a letter to PennDOT's Acting District Engineer, Ronald L. Samuel (Samuel), requesting information about a meeting held on January 8, 2003 between representatives from PennDOT and the Medical Center. Petitioners believed that the meeting involved the proposed parking lot.

By letter dated May 7, 2003, Samuel responded to the request explaining that,

The meeting to which you refer was an impromptu meeting to gain general information on what may be required should the construction of the parking garage be pursued. Because this meeting was conceptual in nature, no decisions were made on any final configuration; however, general traffic flow issues were identified and possible options to mitigate the impact were discussed. It was noted that any changes in current configuration of the highway, including possible parking changes, would need to be coordinated with the City of Johnstown. No formal minutes were taken at the meeting; however, a Highway Occupancy Permit Application has been submitted and a full review of the application will be conducted.

Reproduced Record, R.R. 4a (R.R. ___). Samuel noted that if Petitioners wished to review the Highway Occupancy Permit Application (Application), it could make a request under the Right-to-Know Law. The letter enclosed instructions on how to pursue a Right-to-Know Law claim.³

On May 14, 2003, Petitioners requested⁴ a photocopy of the Application from PennDOT, and on June 3, 2003, PennDOT, by its RTKL Official, denied Petitioner's request.⁵ The RTKL Official reasoned that the Application is not a public record, as defined in the Right-to-Know to Know Law,⁶ because PennDOT had not yet made a decision to grant or deny the Application.

Thereafter, on June 5, 2003, Petitioners, through counsel, filed exceptions with PennDOT⁷ stating

The reasons I file Exceptions are that I consider the Highway Occupancy Permit Application a public record, and one that affects the economic welfare of my client. Also, there was a meeting held with representatives of the Department of Transportation and the architect/engineer for [the Medical Center], and my clients were not a part of that meeting. It was indicated that there were no minutes taken at that meeting, but, in fact, there were, and I have a copy of same. Thus, this meeting must have been a meeting of substance, and I want a copy of the Application.

The impact of that Application could severely affect my client's business which is adjacent to the subject proposed parking lot, and therefore, I believe he is entitled to have that.

R.R. 13a. On June 25, 2003, the PennDOT Exceptions Official⁸ affirmed the May 14, 2003 decision of PennDOT's RTKL Official, explaining that Petitioners' exceptions failed to

set forth the reasons why the identified record is a public record, nor has he explained why he disagrees with the reasons set forth in [the official's] letter.... Moreover, the exceptions do not explain how the requested record meets the general definition of a `public record.'

R.R. 21a-22a. Petitioners then sought this Court's review.⁹ On appeal, Petitioners contend that PennDOT erred because the Application constitutes a public record. PennDOT counters that Petitioners have waived this issue because their exceptions failed to comply with the Right-to-Know to Know Law and the procedures adopted for considering requests for public records.

The General Assembly's recent amendments to the Right-to-Know to Know Law have established procedures that must be followed when appealing an agency's initial denial of a request for a public record. Section 3.5(a) provides that if a written request for access is denied, exceptions may be filed with the agency head. 65 P.S. § 66.3-5(a). "The exceptions shall state the grounds upon which the requester asserts that the record is a public record and shall address any grounds stated by the agency for delaying or denying the request." Id. (emphasis added). Section 3.5 does not give the agency the express authority to deny exceptions that are facially inadequate. However, Section 8 of the Right-to-Know to Know Law,¹⁰ 65 P.S. § 66.8, authorizes, and requires, agencies to establish written policies and regulations for the handling of requests for public records. PennDOT's Right-to-Know to Know procedures, inter alia, provide as follows:¹¹

Exceptions should address the reasons for denying the request. Exceptions that fail to comply with this requirement may be dismissed for that reason.

PennDOT Policy, Exceptions, 7(c)(2) (emphasis added).

Here, Petitioners' exceptions did not address why the Application is a public record as required in Section 3.5(a) of the Right-to-Know to Know Law, 65 P.S. § 66.3-5(a); Petitioners merely stated in a conclusory fashion that they "consider the Highway Occupancy Permit Application a public record." R.R. 13a. Further, Petitioners' exceptions did not address the stated grounds for PennDOT's initial denial, as required by 3.5 of the Right-to-Know Law, 65 P.S. § 66.3-5(a).¹² It has been explained that the purpose of exceptions in a judicial proceeding is to point out mistakes of fact or law so that the trial judge has an opportunity to correct them before an appeal is lodged. In re Borough of Churchill, 525 Pa. 80, 90, 575 A.2d 550, 555 (1990); STANDARD PENNSYLVANIA PRACTICE 2d § 56:21 (1999). The purpose of the exceptions provided in The Right to Know Law appears identical to that for exceptions in judicial proceedings. Properly presented exceptions will allow the agency to correct its errors thereby obviating the need for an appeal.¹³

The exceptions of Petitioners failed to point out mistakes of fact or law made by the RTKL Official. On that basis alone, PennDOT's Exceptions Official could have dismissed Petitioners' exceptions in accordance with the procedures PennDOT has adopted and made available to the public by electric means. However, PennDOT decided Petitioners' exceptions on the merits. It considered the question of whether the Application was a public record under the Right-to-Know Law and concluded that it was not. We agree.

Section 2 of the Right-to-Know to Know Law provides that public records shall consist of the following two categories: (1) an account, voucher or contract, and (2) a minute, order or decision.¹⁴ The first category deals with the fiscal aspects of governance, and the second relates to agency decisions which fix rights and duties of citizens. North Hills News Record v. Town of McCandless, 555 Pa. 51, 55-56, 722 A.2d 1037, 1039 (1999).

Here, the Application sought by Petitioners does not deal with fiscal governance; it is not an account, voucher, agency contract, minute or order. Because the Application has not been approved, it is not a decision fixing the personal or property rights of a person. See Tribune-Review Publishing Company v. Department of Community and Economic Development, 814 A.2d 1261, 1264 (Pa.Cmwlth. 2003) (holding that unfunded grant applications are not subject to public disclosure under the Right-to-Know to Know Law because no evidence existed to prove that the applications were essential components of an agency decision; or that the agency acted on the applications; or that the applications formed the basis for a decision to fund other grant applications). In short, the Application is not a public record.¹⁵ Accordingly, we affirm the decision of PennDOT to deny the exceptions of Petitioners for the reasons stated therein.

O R D E R

AND NOW, this 26th day of January, 2004, the order of the Pennsylvania Department of Transportation dated June 25, 2003 in the above-captioned matter is hereby affirmed.

1. Act of June 21, 1957, P.L. 390, as amended by the Act of June 29, 2002, P.L. 663, 65 P.S. §§ 66.1-66.9.

2. Act of June 29, 2002, P.L. 663.

3. Section 2 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.

4. Section 2(c) provides, in part, that a "written request shall be addressed to the agency head or other person designated in the rules established by the agency." 65 P.S. § 66.2(c). PennDOT has designated a Right-to-Know to Know Law (RTKL) Official for considering requests for public records in its custody.

5. Section 3.3(c) provides,

(c) Denial. If a Commonwealth agency's response is a denial of a written request for access, whether in whole or in part, a written response shall be issued and include:

(1) A description of the record requested.

(2) The specific reasons for the denial, including a citation of supporting legal authority. If the denial is the result of a determination that the record requested is not a public...