Tribune-Review Pub. Co. v. Bodack

• Decision Date: 18 December 2008
• Docket Number: No. 24 WAP 2008.,24 WAP 2008.
• Parties: TRIBUNE-REVIEW PUBLISHING COMPANY, A Pennsylvania Corporation, and Andrew Conte, an Individual, Appellants v. Leonard BODACK, in his Official Capacity as Member of Pittsburgh City Council, Barbara Burns, in her Official Capacity as Member of Pittsburgh City Council, and the City of Pittsburgh, a Municipal Corporation, Appellees.
• Court: Pennsylvania Supreme Court

961 A.2d 110

TRIBUNE-REVIEW PUBLISHING COMPANY, A Pennsylvania Corporation, and Andrew Conte, an Individual, Appellants v. Leonard BODACK, in his Official Capacity as Member of Pittsburgh City Council, Barbara Burns, in her Official Capacity as Member of Pittsburgh City Council, and the City of Pittsburgh, a Municipal Corporation, Appellees.

No. 24 WAP 2008.

Supreme Court of Pennsylvania.

Argued September 10, 2008.

Decided December 18, 2008.

Ronald D. Barber, Esq., H. Yale Gutnick, Esq., Strassburger, McKenna, Gutnick & Gefsky, Pittsburgh, for Tribune-Review Publishing Company, et al.

George R. Specter, Esq., City of Pittsburgh Law Department, Lawrence Henry Baumiller, Esq., Allegheny County Law Department, Pittsburgh, for Leonard Bodack, et al.

BEFORE: CASTILLE, C.J. and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Justice McCAFFERY.

The Tribune-Review Publishing Company and Andrew Conte, a journalist employed by the Tribune-Review, ("Appellants") sought to obtain, under the act known as the Right-to-Know Act,¹ itemized billing records for cellular telephones purchased by the City of Pittsburgh ("the City") and issued to City Council members Leonard Bodack and Barbara Burns. The records sought were for the period from January 1, 2002, through August 1, 2003, and were to include the telephone numbers of both incoming calls to and outgoing calls from each phone, the time of each call, and the duration and cost of each call. Appellants also sought to know which calls were personal calls for which the council members had reimbursed the City. The City denied the request on behalf of Council Members Bodack and Burns on the basis that (1) the records were excludable under the Right-to-Know Act because they contained private telephone numbers, which, if revealed, could potentially result in danger to the owners of the telephone numbers and/or danger that persons would be reluctant to contact the City regarding local problems; and (2) such bills were not, in general, public records subject to the Right-to-Know Act because the council members had reimbursed the City for their cellular telephone usage.

Appellants filed a timely appeal of the City's denial of its request to the Allegheny Court of Common Pleas pursuant to 65 P.S. § 66.4(b). Following a hearing, the trial court sustained Appellants' appeal and ordered that the requested information be produced. Council Members Bodack and Burns and the City ("Appellees") appealed to the Commonwealth Court, which reversed, determining that the telephone bills did not fall within the definition of "public record." The Right-to-Know Act defines a "public record" as follows:

"Public record." 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 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 an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

65 P.S. § 66.1 (emphasis added).

The Commonwealth Court determined that because the subject telephone bills were clearly "account[s or] voucher[s] ... dealing with the receipt or disbursement of funds by an agency," despite any reimbursement made by the council members, the requested bills fell within the general definition of "public record." However, the court also determined that the disclosure of telephone numbers of persons placing calls to, and receiving calls from, the council members could compromise the privacy, reputation, or personal security of those persons to whom the telephone numbers belonged. Thus, the court concluded that the telephone bills, unredacted, fell within an exception to the definition of "public record." Accordingly, the Commonwealth Court reversed the decision of the trial court ordering disclosure of the telephone bills "as-is." More particularly, the Commonwealth Court held that the telephone numbers on the bills must be redacted before the bills are eligible for public release.

In its analysis, the Commonwealth Court first noted a distinction between cellular telephone calls made by council members, and the calls made to council members by individuals, both of which sets of calls would be notated on the cellular telephone bills. The court stated:

Cellular phones are different from traditional phones in that, when a call is made to a traditional phone, the person placing the call generally pays for the cost of the call and thus the number of the person making the call would not appear on the telephone bill of the person receiving the call. However, with cellular phones, the persons receiving a call are still using "airtime" even though they didn't initiate the calls and they are therefore charged for the calls. Thus, because there is a charge for the call, the incoming number is often displayed on the cellular phone bill. This fact ... [establishes that] the private citizen, unknowingly, ... provid[es] information to the public agency by the act of initiating the call to the cellular telephone of a public official without any notice that his/her identity will be disclosed. As in Times Publishing,[²] in this case we believe that private citizens have a legitimate and reasonable expectation that their phone numbers will remain private and that disclosure of these numbers would constitute an unwarranted invasion of personal privacy outweighing any public benefit derived from disclosure. For these reasons, the numbers of incoming phone calls in this case are not subject to disclosure.

Tribune-Review Publishing Co. v. Bodack, 875 A.2d 402, 407 (Pa.Cmwlth.2005).

The Commonwealth Court also considered that one who has been called on the telephone by a public official risks damage to his or her reputation, once the fact of this call is made public. The court stated:

Furthermore, the reputation of the person called must also be considered. [In particular, the court must] address the damage to the reputation caused to private citizens whose numbers are released to the public when, without notice or warning, they are called by a public official on a cell phone or perhaps even mistakenly called if the public official dials a wrong number. It is a fact that the knowledge that certain people had contact with certain public officials could and would be used at the very least to damage a person's reputation. Such damage can be measured only by the interpretation placed on the release of that information and its perceived connection to the political, business, marital, competitive or other interests of the person receiving the call. It is not enough to only weigh the importance of discovering the public official's use of public funds and public equipment. Rather, the request for this information must be balanced by weighing the rights of innocent private citizens who have no way to protect themselves from an invasion of their personal privacy when they are called on the telephone by a public official and, by the mere act of answering that phone call, [ ] have their identity disclosed by having their land phone and/or cell phone telephone number and/or location published.

Id. at 407-08.

Finally, the Commonwealth Court addressed the issue of personal security, noting the particular concern of the City that "the records requested would include constituent calls for which the caller has an expectation of privacy and the revelation of which would expose those constituents to possible harassment and retaliation. For example, a constituent may call to report illegal activity of a neighbor." Id. at 408 (quoting an e-mail sent by the City Solicitor that was included in the record).³ Because of the personal security concern, as well as its conclusions regarding privacy and reputation, the court determined that the requested telephone bills met the exception to the act's definition of "public record" and held that unless the bills were redacted to exclude the listed telephone numbers, they were not eligible for public disclosure under the Right-to-Know Act.

We accepted review of the Commonwealth Court's decision, limited to the following two issues:

1. Are itemized cellular telephone bills of an agency open for public inspection under the Right-to-Know Act?

2. Do the personal security and privacy exceptions in the Right-to-Know Act create legal defenses to access that need not be supported with substantial evidence?

Under the Right-to-Know Act, public records are accessible for public inspection and duplication. 65 P.S. § 66.2(a) ("Unless otherwise provided by law, a public record shall be accessible for inspection and duplication by a requester in accordance with this act."); The Pennsylvania State University v. State Employees' Retirement Board, 594 Pa. 244, 935 A.2d 530, 533 (2007). The Right-to-Know Act thus sets forth a general disclosure rule for public records and further takes a broad view of what constitutes a public record. As we emphasized, the Right-to-Know Act...