North Hills News Record v. Town of McCandless

• Decision Date: 22 January 1999
• Citation: 722 A.2d 1037,555 Pa. 51
• Parties: NORTH HILLS NEWS RECORD and Robyn Tomlin, Appellees, v. TOWN OF McCANDLESS and Allegheny County, Appellants.
• Court: Pennsylvania Supreme Court

722 A.2d 1037

555 Pa. 51

NORTH HILLS NEWS RECORD and Robyn Tomlin, Appellees, v. TOWN OF McCANDLESS and Allegheny County, Appellants.

Supreme Court of Pennsylvania.

Argued September 16, 1998.

Decided January 22, 1999.

Michael W. Streily, James R. Gilmore, Pittsburgh, for the Com.

J. Howard Womsley, Robert Alton Wilson, Pittsburgh, for McCandless.

Susan A. Yohe, Pittsburgh, for North Hills News and Tomlin.

John A. Feichtel, Harrisburg, for Amicus, Pa. Newspaper Publishers

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

OPINION

SAYLOR, Justice.

This Court invoked its extraordinary jurisdiction to determine whether an audio tape recording of a telephone call made to an emergency response center must be made available to citizens asserting a right to disclosure pursuant to the Pennsylvania Right to Know Act.

On January 1, 1998, Michele Walker Keitel and Charles Dunkle were shot and killed in Ohio Township, Allegheny County. A caller reported the shooting by telephone to the Town of McCandless Central Emergency Telephone Center (the "Center"). The Center was operated by the Town of McCandless ("McCandless") through its police department and provided twenty-four-hour emergency telephone response services to residents of McCandless, Ohio Township and another neighboring municipality. All calls to the Center's emergency number were recorded on a magnetic audio tape.

Upon receipt of this telephone call, the Center notified Ohio Township's police department, which, in turn, dispatched a patrol car, followed by emergency personnel and equipment. Ultimately, Michele Walker Keitel's estranged husband, William Keitel, was arrested in connection with the killings.

Appellees Robyn Tomlin and North Hills News Record submitted requests to McCandless Township's police chief and solicitor, and later to the Allegheny County District Attorney, seeking access to the audio tape recordings of all calls made to the Center on January 1, 1998, relating to the killings. All such requests were denied.

Appellees then filed a statutory appeal in the Court of Common Pleas of Allegheny County pursuant to Section 4 of the Right to Know Act,¹ 65 P.S. §66.4, in which the Commonwealth sought and was granted leave to intervene. After argument, the trial court determined that the tapes were public records pursuant to the Act and should thus be made available to Appellees. In its opinion, the trial court initially acknowledged that the plain language of the Act would not appear to require disclosure of the tapes. Nevertheless, based upon a line of decisions from the Commonwealth Court, it found that the tapes did indeed qualify as public records. The trial court reasoned that:

[the coverage of the Act] is construed so broadly that it requires only that a record reflect some form of action by an agency that has an effect on someone. Here, the [audio tapes] formed the basis for the municipality's decision to investigate the conduct of certain individuals with regard to their personal rights, privileges, duties and obligations.

(citations omitted). Both the Commonwealth and McCandless lodged notices of appeal in the Commonwealth Court, and the Commonwealth filed an emergency petition in this Court seeking the exercise of extraordinary jurisdiction pursuant to Section 726 of the Judicial Code, 42 Pa.C.S. §726, and Pennsylvania Rule of Appellate Procedure 3309.

In the Act, the General Assembly codified and clarified the common law right of public access to public records. See Community College of Philadelphia v. Brown, 544 Pa. 31, 33, 674 A.2d 670, 671 (1996)

(citing Wiley v. Woods, 393 Pa. 341, 350, 141 A.2d 844, 849 (1958)). Section 2 of the Act provides generally 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. Subject to enumerated exceptions, Section 1(2) of the Act provides that "public records" consist of the following two categories: 1) "[a]ny account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property," 65 P.S. § 66.1(2); and 2) "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." Id.

The first of these categories deals generally with fiscal aspects of governance, providing for public review of accounts, vouchers or contracts "dealing with" receipts of and disbursements by an agency. This Court's recent decision in Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, Local Union 12, 552 Pa. 105, 713 A.2d 627 (1998), concerned this accounts/vouchers/contracts category of public records. In Sapp Roofing, a plurality of the Court held that a private roofing contractor's payroll records, which had been submitted to the government in connection with the performance of a public project, were public records under the Act. Id. at ___, 713 A.2d at 629.² The Court reasoned that these documents qualified as public records "because they are records evidencing a disbursement by the school district." Id.

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.

The second category of public records, the minutes/orders/decisions category, touches upon the decisional aspects of agency actions. In formulating such category, the legislature selected a somewhat narrower construct than was employed to define the accounts/vouchers/contracts category—the account/voucher/contract category includes qualified records "dealing with" government receipts and expenditures; whereas, the minutes/orders/decisions category addresses qualified records "fixing" rights and duties.

The parties agree that only the minute/order/decision category of public records is implicated in this appeal. It is the burden of a party asserting a right of disclosure of materials pursuant to this category to establish that the requested material: 1) was generated by an agency as defined in the Act; 2) constitutes a minute, order or decision; 3) fixes the personal or property rights of some person or persons; and 4) is not protected by statute, order or decree of court. See generally Tapco, Inc. v. Township of Neville, 695 A.2d 460, 463 (Pa.Cmwlth.1997)(citing Nittany Printing v. Centre County, 156 Pa.Cmwlth. 404, 409, 627 A.2d 301, 303 (1993)); Frommer v. Commonwealth, Dep't of Labor and Industry, 667 A.2d 35, 36 (Pa.Cmwlth.1995), appeal denied, 544 Pa. 677, 678 A.2d 367 (1996). There is no dispute that Appellees' request meets the first of these requirements, as the audio tapes at issue were generated by the Center, an instrumentality of local government and thus an agency within the meaning of the Act. See 65 P.S. §66.1(1) (setting forth the statutory definition of "agency").

The Commonwealth Court has interpreted the second and third requirements to include not only records that contain some actual agency determination fixing rights or duties, but also those materials that form the basis for such a determination, are essential decisional components or otherwise derive from the decision. See, e.g., Arduino v. Borough of Dunmore, 720 A.2d 827, 830 (Pa.Cmwlth.1998)

; Cypress Media, Inc. v. Hazleton Area School Dist., 708 A.2d 866, 868-869 & n. 2 (Pa.Cmwlth.1998) (stating that "[t]he document must be either the basis for or a condition precedent of the decision"). Moreover, the Commonwealth Court has also construed the term "fixing" to mean, more generally, "affecting." Hunt v. Pennsylvania Dep't of Corrections, 698 A.2d 147, 150 (Pa.Cmwlth.1997). The Commonwealth Court has also stated generally, and in our view, overbroadly, that, to constitute a public record for purposes of the Act, a record need only reflect some form of action by an agency that has an effect upon someone. See, e.g., Vargo v. Department of Corrections, 715 A.2d 1233, 1236 (Pa.Cmwlth.1998); Philadelphia Newspapers, Inc. v. Haverford Township, 686 A.2d 56 (Pa.Cmwlth.1996), appeal dismissed,

550 Pa. 343, 705 A.2d 1301 (1998); Travaglia v. Department of Corrections, 699 A.2d 1317, 1320 (Pa.Cmwlth.), appeal denied, 550 Pa. 713, 705 A.2d 1313 (1997).

These expansive statements notwithstanding, the Commonwealth Court's decisions have recognized the definitional limits of the Act.³ Thus, the Commonwealth Court has acknowledged a range of documents that bear some connection to an agency determination, but nevertheless lack a sufficient nexus to meet the statutory criteria. See, e.g., Aronson, 693 A.2d at 265 (holding that copies of responses to a government-sponsored prevailing wage survey were not public records under the Act); Tapco, 695 A.2d at 464-65 (contract proposals and source audiotapes of public meetings); Aamodt, 502 A.2d at 776 (raw data obtained in connection with a government survey pertaining to the health effects of the 1979 nuclear accident at Three Mile Island). Indeed, the Commonwealth Court has appropriately observed that "[a] decision fixing the rights or duties of a person is just not the same as gathering information, notations and evaluations that may or may not be utilized at some future time to fix rights and duties." Aronson, 693 A.2d at 265. See generally Wiley, 393 Pa. at 347-48,

141 A.2d at 848 (finding that...