PG Pub. Co. v. County of Washington

• Decision Date: 24 February 1994
• Citation: 162 Pa.Cmwlth. 196,638 A.2d 422
• Parties: , 22 Media L. Rep. 1552 PG PUBLISHING COMPANY, Observer Publishing Company v. COUNTY OF WASHINGTON, Paul Belcastro, Controller of the County of Washington and The County of Washington, Pennsylvania. Appeal of COUNTY OF WASHINGTON, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 422

638 A.2d 422

162 Pa.Cmwlth. 196, 22 Media L. Rep. 1552

PG PUBLISHING COMPANY, Observer Publishing Company v. COUNTY OF WASHINGTON, Paul Belcastro, Controller of the County of Washington and The County of Washington Pennsylvania Appeal of COUNTY OF WASHINGTON, Appellant.

Commonwealth Court of Pennsylvania.

Argued Nov. 18, 1993.

Decided Feb. 24, 1994.

[162 Pa.Cmwlth. 199] Melvin B. Bassi, Washington County Sol., for appellant.

Perry A. Napolitano for appellee, P.G. Pub. Co.

Stephen D. Marriner, Jr., for appellee, Observer Pub. Co.

Robert L. Knupp for amicus curiae, Pennsylvania State Ass'n of County Com'rs.

Before McGINLEY and KELLEY, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

County of Washington and Paul Belcastro, Controller of the County of Washington (collectively, County) appeal from the Court of Common Pleas of Washington County's order compelling the County to produce its Cellular One telephone records requested by PG Publishing Co. ¹ and the Observer Publishing Co. ² (collectively, Newspapers) pursuant to Section 4 of the Right to Know Act (Act), Act of June 21, 1957, P.L. 390, 65 P.S. § 66.4. We affirm, as modified.

HISTORY

In the summer of 1993, Newspapers ³ requested the County to provide itemized Cellular One telephone billing statements for the years 1991, 1992 and 1993. This request included all pages and documents accompanying the monthly bills, and all documents received by the County regarding its accounts with Cellular One.

By letter dated June 21, 1993, the County refused Newspapers' request, stating that absent "some urgent, compelling reason we believe it totally within the proprietary interests of government to give only summaries and not allow view of the specific bill in question." (134a).

Newspapers filed a statutory appeal in the Court of Common Pleas of Washington County pursuant to Section 4 of the Act, challenging the County's refusal to provide access to the entire bill. The trial court conducted an expedited evidentiary hearing, which included argument by the parties' counsels. Essential to the resolution of this matter is a synopsis of pertinent facts as found by the trial court.

Twenty-one cellular phones are assigned to various County governmental departments and public officials, including the Health Center, EMS Service, Administration, Sheriff, Coroner, District Attorney, District Attorney Drug Task Force Agency (Drug Task Force), and the three County Commissioners.

The phone bills are broken down into two major sections. The first is a "summary" section which sets forth the total dollar amount owed by the County for the month, the current monthly activity of each cellular phone, the assigned phone number and the total charge of each phone for the month.

The second section is an itemization of calls made by each cellular phone indicating the number called, the city, time, date, amount of air-time and cost per call (itemization). Incoming calls are also recorded by date and amount of air-time as a fee is paid for all calls received, but neither the caller's number nor location is provided on the itemization.

No distinction appears on the itemization as to what calls are "County business-related" or "personal." Various public officials testified that under the "honor system," they have reimbursed the County for "personal" calls. However, the trial court found that this reimbursement for personal calls has no bearing on the issue of whether or not the documents requested are "public records" under the Act. The trial court also synopsized the testimony of four County officials as follows:

Testimony from the District Attorney, John C. Pettit, indicated that as a result of the publication, all of the cellular phone numbers relating to his office (approximately 7) had to be changed, due to the nature of the work performed by the District Attorney (ongoing criminal investigations/prosecutions). Mr. Pettit also testified that disclosure of his office's cellular numbers and/or a list of itemized billings for those numbers would jeopardize the safety of law enforcement officers under his control and, more importantly, put at risk ongoing criminal investigations, especially those in the Drug Task Force Unit as they could be discovered and identified.

In addition, calls to and involving confidential informants using those numbers in drug related investigations would be jeopardized, along with their personal security. The reason being the itemized statements set forth the phone numbers called, and, if published, confidential informants' identities would be compromised and, obviously, their personal safety would be in jeopardy along with hampering the district attorney's drug investigation work.

Coroner Timothy Warco and Sheriff James Fazzoni testified that their offices had only one cellular phone, used by themselves. Coroner Warco indicated his office dealt with death and the possible criminal involvement of individuals surrounding death and, therefore, due to the sensitive nature of these circumstances, he objected to the release of any itemized statements on his cellular phone usage.

Similarly, Sheriff Fazzoni testified that the use of his phone is essential to law enforcement, as he receives calls from the District Attorney, state and local police requesting his assistance in various criminal matters which would likewise not merit revealing.

(Trial court opinion at 5-6) (emphasis in original). On August 24, 1993, the trial court issued an order and opinion granting, with limited exceptions, public access to the County's entire monthly Cellular One telephone bills, including itemizations. The order states, in pertinent part:

All cellular phone records of Washington County, both summary and itemized billings, currently numbering twenty-one (21) are public records, pursuant to 65 P.S. § 66.1(2) and are subject to examination and inspection and/or copying pursuant to 65 P.S. §§ 62-2-66.3, by any citizen of this Commonwealth. Paul Belcastro, Controller of the County of Washington in the lawful custodian of such records, shall adopt and enforce reasonable rules and time for such inspection, examination, and/or copying. Any copying of said documents will be at the cost of the individual or entity requesting same.

However, the District Attorney and the Drug Task Force Unit under the supervision of the District Attorney is permitted to redact, remove, or obliterate those telephone numbers involving active criminal investigations and/or numbers of confidential informants including the cellular numbers assigned to the District Attorney's office.

On August 25, 1993, Newspapers again requested copies of the County's Cellular One telephone bills from the Controller. The Controller refused to provide these records and, on September 9, 1993, the County filed its notice of appeal to this Court. ⁴

The County, in its appeal, argues that the trial court erred as a matter of law in holding that the Cellular One itemization is a "public record" which may be "open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." Section 2 of the Act, 65 P.S. § 66.2. Because all parties have conceded that the County is an agency, ⁵ we will begin our analysis by reviewing the trial court's conclusion that the Cellular One itemization was a "public record" within the definition set forth in the Act. ⁶

PUBLIC RECORD

Section 1(2) of the Act, 65 P.S. § 66.1(2), defines a "public record" as:

Any 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 and any minute, order or decision by an agency fixing the person or property rights, privileges, immunities, duties or obligations of any person or group of persons....

(Emphasis added). The County contends that the documents requested do not fall under the definition of a "public record" because the itemization of the Cellular One phone bill is not an "account, voucher or contract," but is either work product or an internal memoranda between non-decision makers. ⁷

The County does not challenge the premise that bills paid for by a county are a "public record," Carbondale Township v. Murray, 64 Pa.Commonwealth Ct. 465, 440 A.2d 1273 (1982), but rather asserts that only the summary of the charges is the "bill" and that the itemizations requested by Newspapers are only the detailed supporting documents, created for internal accounting, i.e., work product, and do not fall under the definition of "public record." The County cites Nittany Printing and Publishing Co. v. Centre County Board of Commissioners, 156 Pa.Commonwealth Ct. 404, 627 A.2d 301 (1993), ⁸ and Vartan v. Department of General Services, 121 Pa.Commonwealth Ct. 470 First, the itemization itself was actually compiled by Cellular One rather than by the County. Second, Controller Belcastro admitted that he did little or no work with the actual itemization but merely paid the amount set forth on the summary sheet.

550 A.2d 1375 (1988), ⁹ for the proposition that work product is not a "public record," unless it forms the basis for an executive or legislative decision. We do not agree.

Most importantly, however, the County also contends that the itemization is not open for public examination and inspection because it does not form the basis for a decision, fixing rights which it concedes would make the itemizations available for inspection under the Act.

The entire argument that the itemization is work product because it does not form the basis of a decision and, thus, not a public record, is premised on a misreading of the Act. The Act differentiates between public records in the form of accounts or vouchers, as we have here, and those in the form of a minute, order or decision fixing rights. Nittany Printing and Vartan both address that portion of the statute concerning minutes, orders or...