Vargo v. Department of Corrections

• Decision Date: 04 August 1998
• Parties: George P. VARGO, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1233

715 A.2d 1233

George P. VARGO, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 12, 1998.

Decided Aug. 4, 1998.

George P. Vargo, petitioner, pro se.

Robert M. Wolff, Camp Hill, for respondent.

Before DOYLE and FLAHERTY, JJ., and MIRARCHI, Jr., Senior Judge.

MIRARCHI, Jr., Senior Judge.

George P. Vargo (Petitioner), acting pro se, petitions this Court to review a decision of the Pennsylvania Department of Corrections (Department) denying his request for documents made pursuant to the act commonly referred to as the Pennsylvania Right to Know Act (Act). ¹ Petitioner made this request as an inmate of the State Correctional Institution at Huntingdon, Pennsylvania. We affirm in part and reverse in part.

By letter dated October 1, 1997, Petitioner filed a request with the Department for inspection and reproduction of the following:

1. The current Visiting Regulations in effect at SCI-Huntingdon, and [the Department] policies relating to Visiting regulations, especially documents relating to the Termination of Visiting Privileges. [R]equested documents include but [are] not limited to the following: Scientific Drug Detection Equipment, namely the type or identification of Scientific Drug Detection Equipment being used and the qualification of personnel that are certified and licensed to operate Scientific Drug Detection Equipment and any other departmental policies, records, or other writings relating to the operation of Scientific Drug Detection Equipment. All documents, records and other writing relating to the accuracy of this particular Scientific Drug Detection Equipment. All Departmental policies and procedures that determine how strictly the procedures are used in the Operation of Scientific Drug Detection Equipment (i.e. [,] how often the equipment is calibrated and what monitoring system is used to insure accuracy), and all records indicating such.

2. The current Visiting Regulations in effect at SCI-Huntingdon, and [the Department] policies relating to Visiting Regulations, especially documents relating to the termination of Visiting Privileges. Requested documents include but [are] not limited to the following: Scientific Drug Detection Equipment (i.e. [,] ION Scanning Equipment), documenting the accuracy of said ION Scanning Equipment against false reading from Prescription Medications, Perfumes, Colognes, Other Cosmetics and Monies. All documents[,] policies and other writings pertaining to the safeguarding readings from over the counter Medications and Prescription Medications.

Letter of Petitioner to Department, October 1, 1997, p. 1. ²

By letter dated February 2, 1998, the Department granted the request in part and denied it in part. Specifically, the Department granted Petitioner permission to inspect and copy the SCI-Huntingdon written inmate visitation policy and the Department's written inmate visitation policy. The Department denied, however, any access to documents delineating the type of scientific drug detection equipment used by the Department, characterizing such documents as not being "public records" under the Act. The Department also denied Petitioner's request to inspect policies, records, and documents relating to the accuracy and calibration of drug detection equipment as well as documents regarding false readings and the qualification and training of personnel authorized to administer the drug detection equipment. The Department determined that the disclosure of these documents, if indeed any of them were public records for purposes of the Act, would threaten the personal security of individuals and were thus exempt from disclosure under the Act.

Petitioner thereupon filed this petition for review, seeking a reversal of the Department's decision to deny access to those documents precluded from inspection and copy. This Court's scope of review is to determine whether the Department had just and proper cause to deny Petitioner's full request. Aamodt v. Department of Health, 94 Pa.Cmwlth. 54, 502 A.2d 776 (1986).

Section 2 of the Act, 65 P.S. § 66.2, provides that "[e]very public record of an agency shall ... be open for examination and inspection by any citizen of the Commonwealth ...." Section 1(2) of the Act, 65 P.S. § 66.1(2), defines the term "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 property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term 'public records' [a] 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; [b] it shall not include any record, document, material, exhibit, pleading, report, memorandum or any paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or [c] which would operate to the prejudice or impairment of a person's reputation or personal security, or [d] which would result in the loss by the Commonwealth or any of its political subdivisions ... of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

The reference in this rather lengthy definition to "any minute, order or decision by an agency fixing the personal property rights, privileges, immunities, duties or obligations of any person or group of persons" has been broadly interpreted to mean some form of action by an agency that has an effect on someone. Gutman v. Pennsylvania State Police, 148 Pa.Cmwlth. 567, 612 A.2d 553 (1992), petition for allowance of appeal denied, 533 Pa. 638, 621 A.2d 583 (1993). This is in keeping with the intent of the Act, which is, in part, to insure the availability of government information to citizens of the Commonwealth by permitting access to official information. Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 546 Pa. 688, 686 A.2d 1315 (1996). Thus, a broad construction is given under the Act to the initial determination of whether a document is a public record, which may be countered by the opposing party's establishment of any of the stated exceptions set forth in Section 1(2) of the Act.

The Department argues that the information requested by Petitioner (aside from the information already made available to him) does not constitute public records under the Act. In making this argument, the Department contends that documents relating to the identity of scientific drug equipment used in screening visitors to the prison, as well as documents concerning the accuracy of this equipment and the qualifications of the personnel administering the equipment, do not constitute a "minute, order or decision" of the Department. The Department also contends that Petitioner would not be permitted access to such documents because he has no right to have visitors while an inmate at the prison. This argument is based upon language in Section 1(2) of the Act that the agency's "minute, order or decision" must fix the personal or property rights of a person or persons. Finally, the Department argues that even if the requested documents can be considered public records under the Act, they are exempt from disclosure because such disclosure would operate to the prejudice of the personal security of individuals.

Section 1(2) of the Act generally contemplates a two-step analysis. The first step requires a determination of whether the requested document falls generally within the definition of "public record." If it does, a determination of whether any of the stated exceptions to this general definition are applicable must be made. If the document falls under one of these exceptions, then the document is not a "public record" as defined by the Act. The Department argues both that the documents requested by Petitioner do not fall under the general definition of "public records" and that even if they do, one or more of the exceptions set forth in Section 1(2) of the Act apply to prohibit disclosure.

We disagree with the Department's argument that the requested documents do not fall under the general, or initial, definition of public records under the Act. We first observe that the Act is not limited to the disclosure of minutes, orders or decisions of an agency. A public record may also be an "account, voucher, or contract dealing with the receipt or disbursement of funds by an agency." 65 P.S. § 66.1(2). The drug testing equipment used by the Department to screen visitors must necessarily have been purchased or otherwise acquired by the Department. Thus, an account, contract, or voucher of the Department that deals with the receipt or disbursement of funds (and which identifies such equipment) is, by definition of Section 1(2), a public record unless excepted for one of the listed reasons.

Further, the Department's argument that the requested documents are not public records or are not available to Petitioner because he has no constitutional right to have visitors is nowhere supported by the Act. A public record is, again, generally defined as a "minute, order or decision by an agency fixing the personal property rights,...