Tribune-Review Publishing Co. v. DCED

• Decision Date: 21 October 2004
• Parties: TRIBUNE-REVIEW PUBLISHING COMPANY and WPXI, Appellant, v. DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, Appellee.
• Court: Pennsylvania Supreme Court

859 A.2d 1261

580 Pa. 80

TRIBUNE-REVIEW PUBLISHING COMPANY and WPXI, Appellant, v. DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, Appellee.

Supreme Court of Pennsylvania.

Re-Submitted September 27, 2004.

Decided October 21, 2004.

David Alan Strassburger, Esq., Attorney H. Yale Gutnick, Pittsburgh, for Tribune-Review Publishing Company, et al.

Teri L. Henning, Esq., for amicus curiae Pennsylvania Newspaper Association.

Nancy J. Kippenhan, Esq., Leslie Anne Miller, Esq., for Department of Community and Economic Development.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice NEWMAN.

Tribune-Review Publishing Company and WPXI (collectively, Tribune-Review) appeal from an Order of the Commonwealth Court, which, after an interlocutory appeal and remand, affirmed the decision of the Department of Community and Economic Development (DCED) to deny Tribune-Review access to unfunded Community Revitalization Program (Program) grant applications. For the reasons that follow, we affirm the Order of the Commonwealth Court.

FACTS AND PROCEDURAL HISTORY

DCED is a Commonwealth agency that, inter alia, distributes state-funded grants pursuant to the Program, which is designed to assist local communities in financing revitalization and improvement projects.¹ By letter dated June 9, 1999, Tribune-Review requested an electronic copy of DCED's Single Application Comprehensive Tracking Report computer database (commonly referred to as "the log") for all Program grant applications for fiscal years 1996-97, 1997-98, and 1998-99. Specifically, Tribune-Review sought to review the following information: (1) the application sequence number; (2) the date the application was received by DCED; (3) the applicant name and contact person; (4) the project description; (5) the project location; (6) the amount of funding requested; (7) any notations as to whether the application was complete and consistent with Program guidelines; (8) whether or not DCED had approved the application; (9) where applicable, the amount of the grant awarded; and (10) where applicable, the date on which DCED notified the applicant that it had approved the application.

DCED responded by letter dated June 15, 1999, indicating that it was undertaking a review of the request by Tribune-Review and would, upon completion of its assessment, provide Tribune-Review with those materials satisfying the request that it deemed public information. On June 30, 1999, DCED provided Tribune-Review with information for only those Program applications that DCED had granted and that had been reduced to contract. Tribune-Review renewed its request on August 10, 1999, explicitly seeking information related to grant applications that DCED denied. DCED denied the request, maintaining that grant applications not reduced to contract were not public records subject to disclosure pursuant to the Right to Know Act (Act), Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1—66.4. Section 1(2) of the Act defines a "public record" as follows:

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(2).

Tribune-Review appealed the decision of the DCED by filing a Petition for Review in the Commonwealth Court. In the Petition, Tribune-Review maintained that applications for state-funded grants are essential components of DCED's decision to distribute funds and, therefore, are public records, whether or not DCED ultimately grants the applications. In a published Opinion, the Commonwealth Court agreed, concluding that all applications for Program funding are essential components of DCED's decision as to which applicants receive money from the Commonwealth; accordingly, the Commonwealth Court determined that the grant applications, regardless of disposition, were public records. Tribune-Review Publishing Company v. Department of Community and Economic Development, 751 A.2d 689 (Pa.Cmwlth.2000) (Tribune-Review I). The Commonwealth Court explained that "the purpose of the Act is to scrutinize the acts of public officials and to make them accountable for their use of public funds." Id. at 692. The court specifically relied on the fact that DCED "represented that it relies upon recommendations from legislators, as opposed to a competitive process, as the basis for determining which grant applications are to be awarded funds." Id. at 692-93. Finding the potential for abuse and political favoritism, the Commonwealth Court reasoned that "[i]f the public were not entitled to review the unfunded as well as the funded grant applications, quite conceivably a community could be continually denied Program funds while another community, with perhaps a more aggressive or persuasive representative, could be repeatedly awarded funds." Id. at 693. Because the process "appears to fly in the face of the purpose of the Act[,]" the Commonwealth Court required disclosure. Id.

DCED filed a Petition for Allowance of Appeal with this Court, contending that the Commonwealth Court had misconstrued the provisions of the Act. However, before we disposed of the Petition, we decided LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001). In LaValle, a group of state senators sought disclosure of a report prepared by Ernst & Young for the Department of Transportation (PennDOT) to determine the extent of damages incurred by Envirotest Partners (Envirotest) when PennDOT abandoned a large-scale, centralized automotive emissions testing program that PennDOT had contracted with Envirotest to administer. Based on this report, PennDOT settled with Envirotest, out of court, for $145 million. The state senators contended that the report constituted a public record because it formed the basis for the legislature's expenditure of public funds for the settlement. We rejected the senators' request, affirming the rationale employed by the Commonwealth Court that the report constituted protected work product, which would include "mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics." Id. at 457. We "decline[d] to infer that by prescribing a right of public access to minutes, orders, decisions, accounts, vouchers and contracts, the General Assembly meant to expose predecisional, internal deliberative aspects of agency decision making to mandatory public scrutiny." Id. at 458.

Following the LaValle decision, we entered the following Per Curiam Order in the instant matter:

AND NOW, this 8th day of March, 2002, the petition for allowance of appeal is hereby granted. The order of the Commonwealth Court is vacated and the matter is remanded for reconsideration in light of LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001).

Tribune-Review Publishing Company v. Department of Community and Economic Development, 568 Pa. 36, 791 A.2d 1153 (2002) (Tribune-Review II) (Per Curiam Order) (internal citation modified).

On remand, the Commonwealth Court reversed its previous position and affirmed the decision of DCED to deny the request of Tribune-Review for access to the unfunded grant applications, finding that they were not public records. Tribune-Review Publishing Company v. Department of Community and Economic Development, 814 A.2d 1261 (Pa.Cmwlth.2003) (Tribune-Review III). The Commonwealth Court adopted the "deliberative process privilege," which it described as follows:

The deliberative process privilege protects from disclosure documents containing confidential deliberations of law or policymaking, reflecting opinions, recommendations, or advice. The privilege tempers the rights of citizens to access public records. The privilege allows for an intra-agency and inter-agency flow of information. The privilege protects from disclosure the discretion afforded to and exercised by agencies. The deliberative process privilege applies to predecisional communications, which reflect on legal or policy matters.

Id. at 1263-1264 (internal quotation and citations omitted). The court determined that the deliberative process privilege protected unfunded grant applications from disclosure; "[o]nce the applications are acted upon, i.e. granted, the applications are public records subject to disclosure." Id. at 1264.² Senior Judge Jiuliante dissented without filing an opinion.

Tribune-Review filed a Petition for Allowance of Appeal, contending that: (1) the Commonwealth Court misconstrued our Grant, Vacate, and Remand Order (GVR Order); and (2) the Commonwealth Court improperly adopted and applied the deliberative process privilege. We granted allocatur on both issues, in hopes of both explaining the meaning of a GVR Order and clarifying what constitutes a public record...