Marvel v. Dalrymple

• Decision Date: 11 October 1978
• Citation: 393 A.2d 494,38 Pa.Cmwlth. 67
• Parties: James L. MARVEL, Appellant, v. Thomas G. DALRYMPLE, Robert J. DiJoseph and James A. Drobile, comprising the Civil Service Commission of Radnor Township, Appellees. James L. MARVEL v. Thomas G. DALRYMPLE, Robert J. DiJoseph and James A. Drobile, comprising the Civil Service Commission of Radnor Township, Appellants.
• Court: Pennsylvania Commonwealth Court

Page 494

393 A.2d 494

38 Pa.Cmwlth. 67

James L. MARVEL, Appellant, v. Thomas G. DALRYMPLE, Robert J. DiJoseph and James A.

Drobile, comprising the Civil Service Commission

of Radnor Township, Appellees.

James L. MARVEL v. Thomas G. DALRYMPLE, Robert J. DiJoseph and James A.

Drobile, comprising the Civil Service Commission

of Radnor Township, Appellants.

Commonwealth Court of Pennsylvania.

Argued April 3, 1978.

Decided Oct. 11, 1978.

John M. Gallagher, Jr., Richard, Brian, DiSanti & Hamilton, Upper Darby, for appellant.

Eugene H. Evans, Sol., Radnor Twp. Civil Service Com'n, Goldberg & Evans, West Chester, for appellees.

Before BOWMAN, President Judge, and MENCER and ROGERS, JJ.

BOWMAN, President Judge.

An order of the Court of Common Pleas of Delaware County directing the Civil Service Commission of Radnor Township (Commission) to make certain records available to appellant, James L. Marvel, is the basis of this appeal.

In March, 1974, Marvel, a Radnor Township police officer, undertook a promotional examination for the rank of sergeant. The examination was a four-part test consisting of (1) a written examination; (2) an oral examination before members of the Commission and a guest; (3) a review of service ratings by superior officers; and (4) a review of appellant's past experience, training and education. Subsequent to the examination, appellant was notified of his score but was not apprised of the passing grade, the number of persons passing the test, or his relative ranking. Because he suspected irregularities in the administration and grading of the examination, appellant petitioned the Commission for permission to review the grades of each examinee in each of the four components of the examination and all papers comprising each component.

Permission was denied ostensibly because that information was deemed to be confidential. Appellant then appealed to the lower court which found that several of the documents sought were indeed "public records" within the meaning of the so-called "Right-To-Know Act" ¹ (Act), but that certain of those documents were excepted from the provisions mandating disclosure. The court denied appellant access to rating sheets completed by the Commission, evaluations by superiors prepared during the course of the promotional examination, and physical reports on the fitness of each applicant for promotion, reasoning that those documents were within the category of records which would be intrinsically harmful to the reputation or personal security of the participants in the examination, namely, other applicants, the superior officers and the Commission members. The court concluded by ordering that Only the following documents be made available to appellant:

1. A copy of the examination booklet used in the examination.

2. Appellant's own written examination answer paper.

3. The written examination answer papers of all other examinees.

4. Appellant's composite score in the examination.

5. The composite scores of all other examinees.

6. Appellant's numerical scores for each part of the examination.

7. The numerical scores of all other examinees for each part of the examination.

Appellant now comes to us and argues that the lower court's order is underinclusive because its application of the disclosure exceptions afforded by the Act is in error. Reliance on the "reputation exception" is misplaced, argues appellant, because the documents sought to be disclosed are not intrinsically harmful to the reputation of anyone involved with the examination. Likewise, appellant asserts that no investigation was undertaken by the Commission in relation to the examination, and that, therefore, the "investigation exception" provided by the Act does not apply. Lastly, appellant claims a common law right in addition to the alleged statutory right, to inspect the records sought herein.

The Commission answers by claiming that none of the records requested by appellant are "public records" as defined by the Act and argues in the alternative that if such records are indeed "public records", the exceptions provided by the Act do apply and preclude discovery of the items sought on appeal.

Section 1 of the Act, 65 P.S. § 66.1 defines "public record" as including

"any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term 'public records' shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of any investigation undertaken by an agency in the performance of its official duties . . . or which would operate to the prejudice or impairment of a person's reputation or personal security . . . ."

Any material so designated a public record is available to any citizen of the Commonwealth for examination and inspection. Section 2 of the Act, 65 P.S. § 66.2.

"Undoubtedly, the legislature intended through the medium of (this) statute a clarification of the right of examination and inspection of public records by all citizens, regardless of their interest or the extent or nature thereof. Within the statutory language is embraced all citizens and not simply those citizens who by some courts might be denied the right of examination and inspection because of lack of interest or legitimate purpose." Wiley v. Woods, 393 Pa. 341, 349-50, 141 A.2d 844, 849 (1958).

As the Commission has structured its argument, the materials sought by appellant cannot be a public record because he cannot assert a personal or property right or privilege in a promotion to the rank of sergeant.

Insofar as the major premise is concerned, this is a proper statement of the law. No right, as such, adheres to promotion. McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968); Bobick v. Fitzgerald, 416 Pa. 588, 207 A.2d 878 (1965); Eckert v. Buckley, 23 Pa.Cmwlth. 82, 350 A.2d 417 (1976).

Commission's syllogism has not, however, properly framed the inquiry in an action brought under the Right-To-Know Act. As Wiley v. Woods,supra, makes abundantly clear, any citizen may seek examination of any " public record". This right to examine is not dependent upon any other personal or property right, privilege or immunity he may otherwise enjoy but rather whether the documents sought in this case are within the intended framework of any "minute, order or decision . . . fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons." A broad construction adheres, therefore, to an initial determination that a document is a "public record", to be tempered as an opposing party brings into play the enumerated exceptions. See McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973).

More pertinently, appellant has not postulated his request in terms of a right to promotion, but rather in terms of a right to be fairly and objectively examined solely in terms of his merit and fitness for the job, these being the criteria for promotion incorporated into Section 642 of the First Class Township Code, ² and regulations promulgated thereunder, apparently arguing that any decision by the appointing authority to promote some number of individuals certified by the Commission as eligible for appointment could come within the meaning of a decision "fixing personal or property rights, privileges, immunities, duties or obligations . . ." of unpromoted eligibles. See Lamolinara v. Barger, 30 Pa.Cmwlth. 307, 311, 373 A.2d 788, 790 (1977) ("fixing" to be read as "affecting" rather than "creating" rights, privileges, etc.).

The lower court's analysis did not delve into the nature of the right fixed here by the promotion process, relying instead on comparison to documents previously defined by this Court as "public records", ³ concluding that "examination of the statutory definition of 'public record' and appellate interpretations of that definition, together with the Civil Service Commission's statutory duty, convinces us that the records sought by appellant satisfy the definition . . . ." (Footnote omitted).

Were we to define the requested documents solely by those terms provided in Section 1 of the Act we would have to investigate the particular right or interest propounded by appellant, I. e., ensuring fair testing methods, an issue addressed by neither the parties nor the lower court...