L.E. Scolforo and The York Dispatch v. The County of York

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Liz Evans Scolforo and :

The York Dispatch, : CASES CONSOLIDATED

Appellants :

:

v. : No. 359 C.D. 2021

:

The County of York :

:

Liz Evans Scolforo, :

:

Appellant :

:

v. : No. 360 C.D. 2021

: Argued: September 12, 2022

The County of York :

:

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: July 10, 2023

Before the Court are two consolidated appeals arising out of a Right-to-Know

Law (RTKL)1 request for name, salary, job title, and length of service, including

start and end dates, for employees of the York County Prothonotary’s Office

(Prothonotary) by Liz Evans Scolforo and The York Dispatch (together, Requester).

In the first appeal, Requester argues the Court of Common Pleas of York County

(common pleas) erred in its January 25, 2021 decision (January Decision) affirming

the Final Determination of the Office of Open Records (OOR), which concluded the

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

OOR lacked jurisdiction over the records at issue in Requester’s appeal because

Prothonotary is a judicial agency and the requested records are “of” that judicial

agency. The January Decision also directed York County (County) to refer

Requester’s RTKL request to the 19th Judicial District Records Manager (Judicial

Records Manager). Requester asserts Prothonotary is not a judicial agency but a

county agency, the requested records are those “of” County and not “of” the judicial

agency, and common pleas should not have directed the transfer of the matter to

Judicial Records Manager.

In the second appeal, Requester challenges common pleas’ President Judge

Musti Cook’s (President Judge) March 17, 2021 decision (March Decision) that

confirmed Judicial Records Manager’s decision that followed the matter’s transfer

under the January Decision. Judicial Records Manager ordered the disclosure of the

name, salary, and job title of Prothonotary employees as a financial record, but

redacted from that disclosure the hiring and termination dates (the length of service)

of those employees, reasoning they were not a financial record subject to disclosure.

Requester argues the length of service dates are clearly disclosable under the RTKL

or Pennsylvania Rule of Judicial Administration 509, Pa.R.J.A. 509 (Rule 509)

(governing the disclosure of financial records of the judiciary).

Thus, in these appeals, we must determine: (1) if Prothonotary is a judicial

agency; (2) if so, are the requested records of Prothonotary rather than of County;

and (3) if the requested records are of Prothonotary, is the length of an employee’s

service a financial record subject to disclosure? We answer the first two questions

in the affirmative and, therefore, affirm the January Decision upholding the OOR’s

conclusion that it lacked jurisdiction over Requester’s appeal. However, we answer

the last question in the negative, concluding Prothonotary employees’ length of

2

service records bear a “sufficiently close connection” to the “fiscally related”

categories in the RTKL’s definition of financial record and deal with the

disbursement of public monies making them disclosable pursuant to City of

Harrisburg v. Prince, 219 A.3d 602 (Pa. 2019). Therefore, we reverse the March

Decision affirming the redaction of that information from the records provided to

Requester.

I. BACKGROUND

A. The Requests

Requester’s attempts to obtain records relating to Prothonotary employees

have been numerous, and the responses thereto have been conflicting. Requester

first submitted a RTKL request to County on July 28, 2020, requesting “the number

of employees who have resigned from the York County Prothonotary[’s] Office

between Jan[uary] 3, 2020, and July 28, 2020, as well as the number of years of

service each resigning employee had with the office.” (Reproduced Record (R.R.)

at 45a, 172a.) County replied that Prothonotary “is a court office and therefore this

request must be submitted through the court’s RTK office.” (Id. at 45a.)

On July 29, 2020, Requester submitted a request under Rule 509 via email to

Judicial Records Manager.2 Therein, Requester stated “Prothonotary employees are

considered employees of a judicial agency[,]” and “[t]he court has a legal duty to

provide access to financial records[]” (Prior Request). (Id. at 16a, 52a-53a.) Judicial

Records Manager denied the Prior Request, explaining:

Employees in [ P]rothonotary’s office are subject to the joint

supervision of independently elected officials of county government

2

The relevant email communications can be found in the Original Record for 359 C.D.

2021 at Item No. 8 and in the Reproduced Record at pages 44a-63a.

3

([ P]rothonotary and the county commissioners) who are not under the

jurisdiction of me, the president judge, nor any other member of the

state judiciary regarding hiring, firing, promoting, demoting,

disciplining, terminating, or compensating those employees. The court

has absolutely no authority over, responsibility for, nor access to any

personnel record of any employee in [ P]rothonotary’s office.

Furthermore, even if we did have access to that information, it would

not be a financial record of funds appropriated to the court subject to

the RTKL as it pertains to the judiciary. As such, your request to this

office remains denied. If you want access to county employee records,

which may or may not be subject to disclosure under the RTKL by the

keeper of those records, you need to direct that request to the county

agency that has access to and control of those records. If you disagree

with my decision, your option is to file an appeal to the president judge.

(Id. at 52a.)

After receiving this denial, Requester emailed the then-president judge of

common pleas and County Solicitor (Solicitor), explaining County told her the

information must come from Judicial Records Manager, and Judicial Records

Manager told her it must come from County. (Id. at 51a.) Further emails were

exchanged in which Requester indicated their “media attorney” confirmed

Prothonotary was a judicial agency position, and Judicial Records Manager

responded Requester’s attorney was incorrect and the records had to be sought from

County. (Id. at 52a-53a.) According to Requester, the then-president judge called

her on July 30, 2020, to explain the court administration office did not have the

records she was requesting and “those records must come from [] County.” (Id. at

50a.) Requester did not appeal this denial.

Instead, on August 10, 2020, Requester sent an email to County, making a

second RTKL request, explaining:

This RTKL request does NOT replace my July 28[, 2020] RTKL

request seeking similar information. I have heard nothing from

[C]ounty about that request since a county official erroneously stated

4

that I should be getting that information elsewhere. I believe [] County

should still be actively handling the July 28[, 2020,] RTKL request.

Today’s request is merely similar.

If the July 28[, 2020,] request is NOT actively being handled, please

alert me so I may contact the Office of Open Records about my options.

Had [S]olicitor [] ever gotten back to me, I wouldn’t be unsure about

the status.

. . . I am requesting access to salary records for all [P]rothonotary

employees from Jan[uary] 1, 2020, to present, showing name, salary,

job title and length of service, including start and end dates, please.

(Id. at 54a (emphasis omitted).) The next day the Solicitor’s Office responded,

explaining Requester “was advised that [her July 28, 2020] request would have to

be submitted to the” Judicial Records Manager, and “[t]hat request was, therefore,

closed as a County Open Records Request and no further action was taken.” (Id. at

59a.)

Requester filed the request at issue on August 11, 2020 (Request), seeking

electronic copies of “salary records for all [P]rothonotary employees from Jan[uary]

1, 2020, to present, showing name, salary, job title and length of service, including

start and end dates.” (Id. at 64a.) On August 14, 2020, County denied that Request,

explaining:

Based upon statutory language and case law, the records you are

seeking are records of a judicial agency. Under the Pennsylvania Rules

of Judicial Administration, court prothonotaries and their employees

are personnel of the unified judicial system [(UJS)]. [Pennsylvania

Rule of Judicial Administration 102,] Pa.R.J.A. [] 102. Frazier v.

Phila. C[nty.] Off[.] of the Prothonotary, 58 A.3d 858, 859 [(Pa.

Cmwlth.] 2012[)]. Further, their records are deemed judicial records.[3]

3

Although the underlying decisions in this matter refer to the records at issue as “judicial

records,” this term is not defined in the RTKL. Grine v. County of Centre, 138 A.3d 88, 97 (Pa.

Cmwlth. 2016) (en banc). “For clarity[] and consistency with RTKL terminology, we recast this

phrase as ‘records of a judicial agency,’” id., unless used in quoted material.

5

The fact that a county pays an employee’s salary who works in a

judicial office “does not affect his status as a judicial employee[.]”[]

County of Lehigh v. P[a.] Lab[.] Rels[.] B[d.], . . . 489 A.2d 1325, 1327

([Pa.] 1985). The Open Records Office has routinely denied such

appeals as they do not have jurisdiction to hear such matters. . . . .

Where the record may also be in the possession of [] County does not

of itself make it an agency record. Records may document an activity

of more than one agency. Where such dual records are also under the

control of the judicial agency and the rules of judicial administration

would not permit disclosure of such records, they may not be disclosed.

In this instance, the Courts have held that permitting the judicial branch

to maintain control over the records which are also considered records

of the judicial agency is appropriate. The Courts have even enjoined a

county from “exercising control over records of the judiciary” related

to open records requests. C[t.] of Common Pleas of Lackawanna Cnty.

v. Off[.] of Open Rec[s.], 2 A.3d 810 (Pa. Cmwlth. 2010) [(Lackawanna

County)].

[“]The location of the record or an agency’s possession [of a record]

does not guarantee that a record is accessible to the public; rather, the

character of the record controls.” Grine v. County of Centre, 138 A.3d

88[, 95 (Pa. Cmwlth. 2016) (en banc)].

The Courts have also held that “to preserve the separation of powers, a

requester was unable to access records of activities of a judicial

employee by seeking the records through a county.” See Lackawanna

C[nty.] case.

As a result, despite your threats to file an appeal and criticisms

regarding a lack of transparency of this office, this office cannot

consider such statements in responding to a request and is required to

follow the law. As such, your request for these records is denied.

The proper appeal is the denial of your request from the 19th Judicial

District. Such appeals follow [] Rule of Judicial Administration 509[,

6

Pa.R.J.A. 509].[4] Please note that Rule 509 does not mirror the rules

or definitions as outlined in the RTKL.

....

(Id. at 64a-65a.)

B. OOR Final Determination

Requester appealed County’s denial to the OOR, which dismissed the appeal

for lack of jurisdiction over the records at issue, because Prothonotary was a judicial

agency.5 In its Final Determination, the OOR explained:

The RTKL defines a “judicial agency” as “[a] court of the

Commonwealth or any other entity or office of the [UJS].” [Section

102 of the RTKL,] 65 P.S. § 67.102. The “[UJS]” is defined by the

Judicial Code and the Pennsylvania Rules of Judicial Administration.

42 Pa.C.S. § 102; Pa.R.J.A. 102. In particular, the term “system and

related personnel” is defined to include the following:

Personnel of the system and related staff. The term

includes district attorneys, public defenders, sheriffs and

other officers serving process or enforcing orders,

registers of wills, prothonotaries, clerks of courts, clerks

of the orphans’ court division, coroners, jury

4

Rule 509 governs access to financial records of the UJS. Pa.R.J.A. 509. Rule 509(c)(1)

provides that requests are initially made to a records manager. Pa.R.J.A. 509(c)(1). If the request

is denied by the records manager, an appeal may be filed with the president judge of that judicial

district. Id. Rule 509(a) sets forth the policy regarding financial records and defines such records,

stating:

(a) General Policy. Financial records of the [UJS] are presumed to be open to any

member of the public for inspection or copying during established business hours.

The term “financial records” is defined as any account, contract, invoice or

equivalent dealing with: 1) the receipt or disbursement of funds appropriated to the

system; or 2) acquisition, use or disposal of services, supplies, materials, equipment

or property secured through funds appropriated to the system.

Pa.R.J.A. 509(a).

5

The OOR’s Final Determination can be found in the Original Record for docket number

359 C.D. 2021 at Item No. 8 and in the Reproduced Record at pages 5a-13a.

7

commissioners, probation officials, and the related

personnel of all of the foregoing.

42 Pa.C.S. § 102; Pa.R.J.A. 102. The Judicial Code distinguishes

between “personnel of the system,” defined as “[j]udicial officers,

personal staff, administrative staff and central staff,” and “related

staff,” which includes “[a]ll individuals employed at public expense

who serve the unified judicial system” but “does not include personnel

of the system.” 42 Pa.C.S. § 102. . . . .

(R.R. at 8a (second, third, and sixth alteration added).) Distinguishing Miller v.

County of Centre, 173 A.3d 1162 (Pa. 2017), which was cited by Requester, the

OOR first explained:

The term “administrative staff” is defined as:

All individuals employed in the business of a court,

including the personnel of the office of the clerk of the

court of common pleas, but the term does not include

judicial officers or their personal staff. The term includes

the clerks or prothonotaries of the Supreme Court,

Superior Court and the Commonwealth Court and their

staffs.

[42 Pa.C.S. § 102.] . . . . Although prothonotaries of the courts of

common pleas are not expressly identified in this definition, the Judicial

Code defines “Office of the clerk of the court of common pleas” as

follows:

A term employed in this title to refer generally to the

administrative staff of the courts of common pleas and the

Philadelphia Municipal Court responsible for the receipt

of documents transmitted to the court by litigants and the

transmission of notice of orders entered by and process

issued under the authority of the court. The business of

such staff shall be divided among the personnel of the

offices of the prothonotary, the clerk of the courts and the

clerk of the orphans’ court division in the manner provided

by or pursuant to Chapter 27 (relating to office of the clerk

of the court of common pleas). Except as otherwise

provided by statute, the term does not imply the

8

unification of the administration, personnel or operations

of any or all of such offices.

[42 Pa.C.S. § 102.]

(Id. at 9a-10a (second and third alteration added, emphasis omitted).)

The OOR reasoned that, although Miller held that district attorneys are not

“judicial agencies” as defined by the RTKL, “prothonotaries, like clerks of the court

of common pleas, are ‘administrative staff’ and, it follows . . . that prothonotaries

are also ‘personnel of the system,’ as defined in the Judicial Code.” (Id. at 8a-10a.)

The OOR found support in Smith v. Philadelphia Office of Judicial Records (Pa.

Cmwlth., No. 945 C.D. 2019, filed September 25, 2020), slip op. at 3-4,6 in which

this Court noted it had “consistently held that a court’s filing office, such as a

prothonotary’s office, clerk of courts’ office, or . . . the [Office of Judicial Records],

are included within the RTKL’s definition of ‘judicial agency.’” (Id. at 10a

(emphasis omitted).) The OOR held “[b]ecause county prothonotaries are

‘administrative staff’ and, as a result, fall within the definition of ‘personnel of the

[UJS],’ they are considered judicial agencies under the RTKL.” (Id. at 11a.) The

OOR explained it lacks “jurisdiction over the records of a judicial agency, including

those in the possession of an agency within the OOR’s jurisdiction.” (Id. at 12a.)

However, the OOR also noted that, pursuant to the RTKL, judicial agencies must

still disclose financial records, which includes salary information. (Id.)7

6

Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.

126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),

unreported panel decisions of this Court may be cited for their persuasive value.

7

In a footnote, the OOR stated it

recognizes that this holding puts [] Requester in an unusual position. The

information being requested, salaries and basic job information for agency

(Footnote continued on next page…)

9

C. Common Pleas’ January Decision

Requester appealed the Final Determination to common pleas, arguing the

requested records are County records, other counties routinely provide identical

information to Requester, and Judicial Records Manager stated in his response

Prothonotary employees are under the joint supervision of Prothonotary and County

Commissioners. Requester, citing Rosenwald v. Barbieri, 462 A.2d 644 (Pa. 1983),

also argued “[P]rothonotary employees are ‘related staff’ of the judiciary ‘whose

function aids the judicial process but who are not supervised by the courts.’” (R.R.

at 146a.) County responded that, pursuant to the Rules of Judicial Administration

and Frazier, court prothonotaries are part of the UJS, and, thus, part of the judiciary,

precluding the OOR from having jurisdiction. County requested common pleas to

consider the separation of powers doctrine under the Pennsylvania Constitution8 as

precluding a county or local agency from disclosing jointly held records of a judicial

agency, the disclosure of which must be within the judicial agency’s purview, citing

Grine, 138 A.3d at 95.

After citing the relevant statutes and case law, common pleas affirmed the

Final Determination and directed County to refer the Request to Judicial Records

employees, is clearly public. See [Section 708(b)(6)(ii) of the RTKL,] 65 P.S.

§ 67.708(b)(6)(ii); Pa.R.J.A. 509(a). [] Requester sought the information via Rule

509 . . . and was denied. [] Requester then sought the information via the RTKL

and was denied. Here, based on the analysis above, [] Requester’s appeal of the

RTKL denial is being dismissed; however, that [] Requester should be provided the

requested information is not in dispute. The question is merely who is responsible

for providing it. Unfortunately, this Final Determination will not resolve that

question.

(R.R. at 12a n.6.)

8

Article V, section 10 of the Pennsylvania Constitution, PA. CONST. art. V, § 10 (outlining

our Supreme Court’s general supervisory authority over the UJS).

10

Manager.9 In a thorough and well-written decision, common pleas explained “there

was no avenue to access documents of the judiciary” until the Supreme Court

adopted Rule 509, which “permitted Pennsylvanians access to financial records of

the judiciary, [while] limiting release that would compromise personal information

or security.” (January Decision at 8-9.) Rule 509 also provided, common pleas

explained, a procedure for accessing records “through a records manager and a

permissive appeal to the president judge of the county court of common pleas.” (Id.)

Subsequently, the RTKL was enacted and provided for access to the financial

records of judicial agencies. As to whether the responsive records fell under the

purview of County as a local agency, or were records of a judicial agency that could

be released if authorized by a judicial records manager as “a ‘financial record’ as

narrowly defined by the RTKL,” common pleas held “the records in question are

judicial records and [] County has no jurisdictional authority to release them without

direction to do so by the judiciary.” (Id. at 14-15.)

Common pleas explained “prothonotaries and their employees are

administrative staff of the [c]ourt” and “system personnel,” and Miller, which

involved a district attorney, was distinguishable. (Id. at 15-16.) Common pleas

indicated that although Miller held district attorneys and their employees are not

personnel of the judiciary, “extending [Miller’s] holding to cover all other members

of the ‘system and related personnel’ of the UJS would be misplaced.” (Id. at 16.)

Unlike district attorneys, whose power and duties are laid out in the Pennsylvania

Constitution as being part of the executive branch, common pleas stated “the office

of the prothonotary was inextricably tied to the function of the Judiciary.” (Id. at

17.)

9

The January Decision can be found in the Original Record for docket number 359 C.D.

2021 at Item No. 2, and in the Reproduced Record at pages 140a-62a.

11

Turning to whether the responsive records were “of” a judicial agency or “of”

a local agency, common pleas examined Section 1620 of The County Code, 16 P.S.

§ 1620,10 which explicitly states county commissioners are to “represent the judges

of the court of common pleas” in salary and compensation negotiations and “sit on

behalf of judges” in such negotiations, which will not impair the hiring, discharge,

and supervision of employees. (Id. at 17-18.) Common pleas held “[a] record does

not need to be generated by the agency receiving a RTKL request to qualify as ‘of’

that agency,” and it was the subject matter, rather than the location of where it was

stored, that mattered in the inquiry. (Id. at 19 (citing Bagwell v. Dep’t of Educ., 76

A.3d 81 (Pa. Cmwlth. 2013).)) “Given this context,” common pleas concluded “it

becomes apparent that the wage and salary records requested are judicial records

under the control and supervision of the judiciary,” and the requested records were

“of” the judicial agency, not County. (Id.)

Regarding the identified separation of powers concerns, common pleas noted

the Prior Request had been made to the judiciary and responded to by Judicial

10

Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620. Section 1620 provides:

The salaries and compensation of county officers shall be as now or hereafter fixed

by law. The salaries and compensation of all appointed officers and employes who

are paid from the county treasury shall be fixed by the salary board created by this

act for such purposes: Provided, however, That with respect to representation

proceedings before the Pennsylvania Labor Relations Board or collective

bargaining negotiations involving any or all employes paid from the county

treasury, the board of county commissioners shall have the sole power and

responsibility to represent judges of the court of common pleas, the county and all

elected or appointed county officers having any employment powers over the

affected employes. The exercise of such responsibilities by the county

commissioners shall in no way affect the hiring, discharging and supervising rights

and obligations with respect to such employes as may be vested in the judges or

other county officers.

Id.

12

Records Manager, whereas the Request before it was addressed to County and

answered by its open records officer. (Id. at 20.) Common pleas noted this was

significant because before the court was “an appeal from a decision rendered by the

OOR after a request was made to a local agency, County, to produce its records.

Critically, it is not an appeal from a decision rendered by the [Judicial] Records

Manager of a judicial agency,” which would have involved different underlying

procedures for requests, disclosure, and appeals. (Id. at 22.) As such, common pleas

confined its analysis to the issue expressly before it, the appeal from the OOR’s

determination, and declined to consider whether the requested documents were

disclosable financial records under Rule 509.

Ultimately, common pleas held that because the requested records were “of”

both a judicial agency, Prothonotary, and a local agency, County, the local agency

had to defer to the judicial agency’s disclosure decision. (Id. at 22-23.) Accordingly,

common pleas denied the appeal and affirmed the OOR’s Final Determination. In

addition, common pleas directed County to refer the Request to Judicial Records

Manager “for review and determination whether the documents requested should be

released consistent with this opinion.” (Id. at 1.)

Requester appealed and filed, as directed, a Concise Statement of Errors

Complained of on Appeal (Concise Statement) pursuant to Pennsylvania Rule of

Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Therein, Requester relevantly

argued:

2. The [c]ourt erred in concluding that the wage and salary records

requested are judicial records under the control and supervision of the

judiciary. . . .

3. The [c]ourt erred in referring the case to [] Judicial Records Manager

for review and determination whether the documents requested should

be released consistent with this opinion. . . .

13

4. The [c]ourt erred in failing to adequately discern whether the records

qualify as records ‘of’ a particular agency by conducting a thorough

review of the subject matter of the records sought. . . . The [c]ourt

engaged in an inadequate analysis to determine which office was

primarily responsible for hiring, paying and supervising [P]rothonotary

employees. By contrast, the [c]ourt should have used the more in-depth

approach that was used in Philadelphia Dist[rict] Attorney’s Off[ice] v.

Stover, 176 A.3d 1024 (Pa. Cmwlth. 2017)[,] to determine whether the

salary records sought were the primary responsibility of the

Prothonotary or the court system.

(Concise Statement ¶¶ 2, 4 (internal quotation marks omitted).11)

In its Rule 1925(a) Memorandum Opinion (1925(a) Opinion),12 common pleas

stated the January Decision sufficiently explained its rulings, but separately

addressed the errors complained of in the Concise Statement. Common pleas

responded to the second alleged error, explaining:

If [] Prothonotary and [its] employees are ‘related staff’ then the natural

conclusion is that their financial records are county records and free to

be released. However, since we have concluded that [] Prothonotary

and its staff fall outside the term ‘related staff’ as defined in [] Miller,

then it naturally follows that the financial records associated with them

are at least simultaneously records of the judiciary and [C]ounty

records, if not solely records of the judiciary. Given this conclusion,

despite the fact that the financial records are held by County, the

character of the records suggest that they are records of the judiciary

and therefore can only be released with approval of the judiciary.

(1925(a) Op. at 6-7.)

With regard to the third alleged error, common pleas explained Requester

cited no authority as to why it erred and “[t]his portion of the Order was meant to

11

The Concise Statement can be found in the Original Record for 359 C.D. 2021 at Item

No. 3.

12

The 1925(a) Opinion can be found in the Original Record for 359 C.D. 2021 at Item No.

4.

14

expedite the matter as neither the OOR nor this [c]ourt hold[s] the belief that

[Requester is] not entitled to the financial records sought, merely that [Requester]

followed the wrong track in attempting to gain access to the records.” (Id. at 7.)

Notably, common pleas stated “the [c]ourt maintains that [Requester is] entitled to,

at minimum, the financial records they seek with redacted private information but[,]

due to the procedural posture of this proceeding, it would be inappropriate for us to

grant [Requester’s] requested relief.” (Id. at 9.) Rather, common pleas explained,

this decision had to be made on “the judiciary track,” which is why the court

“direct[ed] that the matter be submitted to [] [J]udicial [R]ecords [M]anager of the

judiciary for proper determination of entitlement.” (Id.)

Finally, as to the fourth alleged error, common pleas explained it did engage

in a comprehensive and thorough analysis. It looked at the character of the

documents, including name, salary records, location of the documents, source of

funding, “character of the function that [] Prothonotary provides, and many other

factors,” to reach its conclusions. (Id. at 10.)

D. Judicial Records Manager’s Review and March Decision

In accordance with common pleas’ January Decision, the Request was

submitted to Judicial Records Manager for review under the RTKL and Rule 509.

On February 8, 2021, Judicial Records Manager issued a determination. Therein,

Judicial Records Manager stated:

[Requester] is requesting information that is contained, presumably, in

the personnel files of these employees and other records maintained by

[][C]ounty’s human resources department. Because these records are

not in the court’s possession, control or supervision, but rather are in

the possession, control and supervision of [][C]ounty, I will treat this

as a request for the court to authorize [] [C]ounty to release the

information in its possession. I have not been presented with any

15

authority for the proposition that I can cause or compel [][C]ounty to

actually release or withhold the information.

....

The names, salaries, and job titles of employees of [][P]rothonotary are

within the scope of the RTKL as it pertains to the judiciary, at least

under the statute’s definition of a financial record, so I authorize []

[C]ounty to release that information to [Requester]. The length of

service, including start and end dates of employment, exceeds the scope

of the RTKL as it pertains to the judiciary, so I do not authorize

[][C]ounty to release that information to her.

(R.R. at 166a.) In accordance with Judicial Records Manager’s decision, Requester

was given a spreadsheet reflecting Prothonotary employees’ first and last names,

hourly rates, annual salaries, and full titles. (Id. at 176a.) However, the employees’

hiring dates and termination dates were redacted. (Id.)

Requester appealed this “Rule 509 determination” to President Judge,

asserting the redaction of the length of service information was not consistent with

Section 708(b)(6) of the RTKL, which made this information public. (Id. at 168a.)

On March 17, 2021,13 President Judge confirmed the determination of Judicial

Records Manager and denied Requester’s appeal. President Judge agreed with the

January Decision’s conclusion that the records sought were those “of” a judicial

agency for the reasons offered in the January Decision. President Judge held the

plain language of Sections 102 and 304 of the RTKL, 65 P.S. §§ 67.102, 304, did

not include an employee’s length of service in the definition of financial record.

(March Decision at 2-3.) In addition, Requester’s reliance on Section 708(b)(6) of

the RTKL as requiring disclosure was misplaced because Section 708, entitled

“Exceptions to public records,” did not apply to records of a judicial agency, which

13

The March Decision can be found in the Original Record for 360 C.D. 2021, Item No. 2

and in the Reproduced Record at 202a-05a.

16

are not “public records” as defined by the RTKL. 65 P.S. § 67.102 (“A record,

including a financial record, of a Commonwealth or local agency that: (1) is not

exempt under [S]ection 708.”). (Id. at 204a (emphasis in original).) Requester

appealed, and Requester’s two appeals were consolidated for review by this Court.14

II. DISCUSSION

Requester raises three arguments on appeal. First, county prothonotaries are

not “judicial agencies” but are “local agencies,” which renders the full RTKL

applicable to the requested records. Second, common pleas erred in failing to

consider the nature of the records which would show the records themselves were

not “of” the judiciary, but instead evince a transaction of County - paying

prothonotary employees as County employees. And, third, common pleas erred in

transferring the Request to Judicial Records Manager, and President Judge erred in

affirming the redaction of the length of service of Prothonotary employees from the

responsive records, which should be disclosable under the RTKL and/or Rule 509.15

County responds there was no error in common pleas affirming the OOR’s

Final Determination in the January Decision, because both correctly held

14

“Our standard of review in a [RTKL] case is whether an error of law was committed,

constitutional rights were violated, or necessary findings of fact are supported by substantial

evidence. Our scope of review is plenary.” Silver v. Borough of Wilkinsburg, 58 A.3d 125, 127

n.2 (Pa. Cmwlth. 2012).

15

The Pennsylvania Newsmedia Association (PNA) filed an amicus curiae brief in support

of Requester’s position. PNA adopts Requester’s argument that length of service records are

records of the county, rather than of the judiciary. PNA maintains the responsive records are

subject to disclosure pursuant to Section 708(b)(6)(ii), which expressly directs disclosure of

“length of service of a public official or an agency employee.” 65 P.S. § 67.708(b)(6)(ii), as well

as Sections 102 and 304, and City of Harrisburg, 219 A.3d 602. Alternatively, if the Court finds

the records to be records of a “judicial agency” subject to the requirements of Rule 509, PNA

argues the length of service records must still be disclosed because they constitute “financial

records” under that rule. (PNA’s Br. at 4.)

17

Prothonotary is a judicial agency and its employees are personnel of the judicial

system notwithstanding their being paid by County, the responsive records are of a

judicial agency, and County does not have authority to release those records without

being directed by a judicial agency. County further responds, President Judge

correctly concluded in the March Decision the length of service information was not

a disclosable financial record under the RTKL, and, as a result, the redaction of this

information was not in error.

A. The RTKL

Preliminarily, we recognize the RTKL was implemented as “remedial

legislation to facilitate government transparency and promote accountability,” and

is “construed to maximize access to public records” in an agency’s possession.

McKelvey v. Pa. Dep’t of Health, 255 A.3d 399, 400 (Pa. 2021). The RTKL was

also implemented “[t]o ‘prohibit secrets, scrutinize the actions of public officials,

and make public officials accountable for their actions,’ [and] the RTKL places the

statutory duty of disclosing public records ‘solely on the government agency.’”

Energy Transfer v. Friedman, 265 A.3d 421, 428-29 (Pa. 2021) (quoting McKelvey,

255 A.3d at 400). The RTKL mandates a Commonwealth agency or a local agency

to “provide public records in accordance with the” RTKL without regard to a

requester’s “intended use of the public record . . . unless otherwise provided by law.”

Sections 301 and 302 of the RTKL, 65 P.S. §§ 67.301, 67.302. The RTKL defines

“public record” as a record of a Commonwealth agency or local agency that “is not

exempt from being disclosed under any other Federal or State law or regulation or

judicial order or decree.” Section 102 of the RTKL, 65 P.S. § 67.102. A record in

18

the possession of a Commonwealth agency or local agency “shall be presumed to be

a public record.” Section 305(a) of the RTKL, 65 P.S. § 67.305(a).

However, the RTKL treats the records of judicial agencies differently, and

only “a financial record in the possession of a judicial agency shall be presumed to

be available in accordance with this act.” 65 P.S. § 67.305(b). Sections 304 and 305

of the RTKL set forth that, unlike other agencies, the presumption of the public

nature of a record for judicial agencies does not arise until after the judicial agency

reviews the record and decides whether it is a “financial record.” 65 P.S. §§ 67.304,

67.305. The RTKL defines “financial record,” in relevant part, as follows:

(1) Any account, voucher or contract dealing with:

(i) the receipt or disbursement of funds by an agency; or

(ii) an agency’s acquisition, use or disposal of services, supplies,

materials, equipment or property.

(2) The salary or other payments or expenses paid to an officer or

employee of an agency, including the name and title of the officer or

employee.

65 P.S. § 67.102.

Because the RTKL distinguishes between judicial agencies and other

government agencies, we first examine whether Prothonotary is a judicial agency as

that determines what, if any, records are subject to disclosure.

B. Whether Prothonotary is a judicial agency and its employees are

personnel of the judicial system

1. Parties’ Arguments

Requester argues common pleas applied an overly narrow interpretation of the

RTKL, and prothonotaries are local agencies for purposes of the RTKL. Requester

19

acknowledges “the majority of the records maintained in a prothonotar[y’s] office

are judicial records. . . . [H]owever, prothonotaries do not produce or create those

judicial records; those judicial records are created in legal proceedings by attorneys,

litigants, and judges. The prothonotary’s office simply maintains them.”

(Requester’s Brief (Br.) at 16.) Relying on Miller, Requester argues prothonotaries

are similar to district attorneys’ offices and are “related staff,” which “covers those

whose function aids the judicial process but who are not supervised by the courts.”

(Id. at 19 (quoting Miller 173 A.3d at 238-39).) Moreover, Requester cites article

IX, section 4 of the Pennsylvania Constitution,16 which references prothonotaries

and district attorneys together as county officers, to argue the two offices should be

treated the same and common pleas erred in distinguishing Miller. (Id. at 19-20.)

Citing Frazier, County contends prothonotaries, like clerks of court, are

judicial agencies and that Miller is distinguishable because it involved a district

attorney and its staff, not a prothonotary, whose work and activities are considered

functions of a court system. (County’s Br. at 8.) County stresses prothonotaries and

their personnel are “personnel of the system,” and, therefore, part of a “judicial

agency” for purposes of the RTKL. County argues the mere fact it pays the salary

of Prothonotary employees does not transform Prothonotary from a judicial agency

into a local one, citing County of Lehigh, 489 A.2d at 1327.

16

Article IX, section 4 of the Pennsylvania Constitution states, in relevant part: “County

officers shall consist of commissioners, controllers or auditors, district attorneys, public defenders,

treasurers, sheriffs, register of wills, recorders of deeds, prothonotaries, clerks of courts, and such

others as may from time to time be provided by law.” PA. CONST. art. IX, § 4.

20

2. Analysis

To determine whether Prothonotary is a “judicial agency,” the Court must

interpret the RTKL. The Statutory Construction Act of 1972 (SCA), 1 Pa.C.S.

§§ 1501-1991, emphasizes the objective of our interpretation is to ascertain and

effectuate the General Assembly’s intent. Section 1921(a) of the SCA, 1 Pa.C.S.

§ 1921(a). A statute’s plain language generally provides the best indication of

legislative intent. 1 Pa.C.S. § 1921(b). “However, if the words of the statute are not

free from ambiguity, the intention of the General Assembly may be ascertained by

considering, inter alia, the occasion and necessity for the statute, the object or policy

goals to be obtained, and the consequences of a particular interpretation. 1 Pa.C.S.

§ 1921(c).” Miller, 173 A.3d at 1168.

Section 102 of the RTKL defines “judicial agency” as “[a] court of the

Commonwealth or any other entity or office of the [UJS].” 65 P.S. § 67.102

(emphasis added). The UJS is defined by the Rules of Judicial Administration and

by the Judicial Code. Miller, 173 A.3d at 1169. The term “personnel of the system”

includes “[j]udicial officers, personal staff, administrative staff and central staff.”

Section 102 of the Judicial Code, 42 Pa.C.S. § 102; see Rule 102 of the Pennsylvania

Rules of Judicial Administration, Pa.R.J.A. 102. “Administrative staff” is defined

as “[a]ll individuals employed in the business of a court, including the personnel of

the office of the clerk of the court of common pleas, but the term does not include

judicial officers or their personal staff.” 42 Pa.C.S. § 102. The definition also states:

“The term includes the clerks or prothonotaries of the Supreme Court, the Superior

Court, and the Commonwealth Court and their staffs.” Id. “System and related

personnel” includes “district attorneys, public defenders, sheriffs and other officers

serving process or enforcing orders, registers of wills, prothonotaries, clerks of the

21

courts, clerks of the orphans’ court division, coroners, jury commissioners, probation

officials, and the personnel of all of the foregoing.” 42 Pa.C.S. § 102 (emphasis

added); see also Pa.R.J.A. 102. “Related staff,” by contrast, includes “[a]ll

individuals employed at public expense who serve the [UJS], but the term does not

include personnel of the system.” 42 Pa.C.S. § 102 (emphasis added). “These

definitions[] clearly distinguish between ‘personnel of the system’ and ‘related

staff.’” Rosenwald, 462 A.2d at 647.

Consistent with identifying prothonotaries as “personnel of the system,”

subchapter B of Chapter 27 of the Judicial Code, 42 Pa.C.S. §§ 2731-2738, entitled

“Prothonotaries,” addresses, among other items, the powers and duties of a

prothonotary and the staffing of the office of prothonotary. While a prothonotary is

an elected county office, the powers and duties of a prothonotary relate to the

business of the court, including administering oaths, entering civil judgments, using

the county court’s seal, and “[e]xercis[ing] the authority of the prothonotary as an

officer of the court.” Section 2737(5) of the Judicial Code, 42 Pa.C.S. § 2737(5).

As to a prothonotary’s staff, who are also considered “personnel of the system,”

“[t]he prothonotary may appoint and remove such deputies and other administrative

staff of the office of the prothonotary as may be necessary.” Section 2735(a) of the

Judicial Code, 42 Pa.C.S. § 2735(a). Further, a prothonotary has the authority to fix

the compensation and duties of the prothonotary office’s staff, unless otherwise

provided by statute, home rule charter, or optional plan, and, if the compensation is

set by a county salary board, the prothonotary must be a member of that board for

the purpose. 42 Pa.C.S. § 2735(c).

This Court has held, in the context of a request submitted to the Philadelphia

County Office of Prothonotary for an autopsy report, that court prothonotaries are

22

personnel of the UJS. Frazier, 58 A.3d at 859. “We have consistently held that a

court’s filing office, such as a prothonotary’s office, clerk of courts’ office, or, . . .

the [Office of Judicial Records], are included within the RTKL’s definition of

‘judicial agency.’” Smith, slip op. at 10 (emphasis added). See also League of

Women Voters of Greater Pittsburgh v. Allegheny Cnty., 819 A.2d 155, 158 n.12

(Pa. Cmwlth. 2003) (holding “clerks of court and prothonotaries are personnel of

the [UJS]”) (emphasis added). As the precedent makes clear, prothonotaries, like

clerks of court, are personnel of the UJS. Although Requester urges us to consider

a prothonotary’s office a “local agency” in one context and a “judicial agency” in

another, such interpretation is inconsistent with the statutory language, rules, and

precedent, which make prothonotary employees UJS personnel subject to the hiring,

firing, and supervision of the prothonotary, a judicial agency.

We disagree with Requester’s position that prothonotaries are akin to district

attorneys, which would make them “related staff,” not a judicial agency, under

Miller. In Miller, our Supreme Court held district attorneys, while identified as

“system and related personnel,” constituted “related staff” and not “judicial

agencies.” 173 A.3d at 1169. The Supreme Court explained:

Because district attorneys are “system and related personnel,” but are

not “personnel of the [UJS],” it follows that they are “related staff.”

“Related staff” expressly are not “personnel of the system.” A fortiori,

such staff cannot be personnel or entities or offices of the [UJS].

Rather, “related staff” are “those whose function aids the judicial

process but who are not supervised by the courts.” [] Under the plain

language of the RTKL, the Judicial Code, and the Rules of Judicial

Administration, district attorneys (like public defenders, sheriffs, and

others identified as “system and related personnel”) are not “judicial

agencies.” Accordingly, [the district attorney] cannot invoke the

protections for judicial agencies provided by the RTKL.

Id.

23

As stated in the January Decision, “[c]omparing the office of the prothonotary,

which aids the court in its essential daily functions, and the office of the district

attorney, an entity that serves the executive branch and acts as the chief enforcer of

the [C]ommonwealth, would be improper.” (January Decision at 17.) We agree

with this assessment, as it is based upon the particular powers and duties of the office

of prothonotary, which serve the courts of common pleas as set forth in the Judicial

Code, 42 Pa.C.S. § 2737. Under those principles, Prothonotary is a judicial agency.

However, this conclusion does not end our inquiry because Requester challenges

common pleas’ determination that the requested records were “of” the judicial

agency, Prothonotary, rather than “of” a local agency, County. We turn to this issue

next.

C. Whether common pleas erred in concluding the requested records are “of”

a judicial agency

1. Parties’ Arguments

Requester argues that, if Prothonotary is a judicial agency, the Request, which

sought basic salary information “about a prothonotary’s office” was submitted to

County, and “did not seek records created by or in the possession of []

[P]rothonotary.” (Requester’s Br. at 21 (emphasis in original).) As a result,

Requester contends the requested records are not records “of” the judiciary. (Id. at

22.) Requester asserts Lackawanna County and Grine establish that whether a

record is “of” a particular agency depends on whether the record “‘documents’ a

‘transaction or activity of the agency.’” (Requester’s Br. at 22 (quoting Grine, 138

A.3d at 94-95).) Applying this standard, Requester asserts, leads to the conclusion

the requested records are “of” County, not because County has possession and

control of the records, but because the character of the records, information

24

regarding employment, make them records “of” County. Requester distinguishes

the records requested here from those created and maintained as part of a legal

proceeding by a prothonotary’s office for judicial purposes and for the benefit of the

judiciary, such as a court order, Smith, slip op. at 10; docket entries in a criminal

court docket, Nixon v. Philadelphia County Clerk of Courts (Pa. Cmwlth., No. 706

C.D. 2016, filed November 14, 2017), slip op. at 3; certified sentencing orders, Faulk

v. Philadelphia Clerk of Courts, 116 A.3d 1183, 1185 (Pa. Cmwlth. 2015); or an

autopsy report, Frazier, 58 A.3d at 859-60. (Requester’s Br. at 22.) In contrast to

these records, Requester posits a “County payroll record is a record of County,

regardless of the jobs of the employees reflected in that [] record, or where it is kept,”

and, therefore, are subject to the RTKL and the OOR’s jurisdiction. (Id. at 23.)

County replies that records may document the activity of more than one

agency and where such “dual records” are “of” a judicial agency and “of” a local

agency, their disclosure is determined by the judicial agency. County agrees it is the

character of the record, not which agency created the records or holds the records,

that controls their disclosure to the public. (County’s Br. at 11 (citing Grine, 138

A.3d at 95; Bagwell, 76 A.3d 81).) County asserts, however, the fact it pays

Prothonotary’s employees does not make the records related to those payments

records solely of a local agency. County argues the responsive records were created

on behalf of employees of Prothonotary, a judicial agency, and reflected the activity

of Prothonotary, similar to the records requested from the counties in Grine and

those which Lackawanna County found to be records of a judicial agency and not

disclosable by the county without judicial agency approval. To hold otherwise,

County asserts, would violate the separation of powers doctrine by allowing an

executive agency to disclose records reflecting the activity of the judicial branch

25

which could interfere with a judicial agency’s supervision of its employees.

(County’s Br. at 12.) County argues the process involved in a judicial agency’s

consideration of whether its records are disclosable differs from the process of a

local agency’s consideration of whether its records are disclosable, with each having

its own presumptions, burdens, and appeals procedures. These differences, County

asserts, may result in substantively different responses to the same request, and

Requester cannot avoid the limitations associated with the records of a judicial

agency by making a request to County and claiming the records are of the local

agency. (Id. at 15.)

2. Analysis

The OOR is “per se vested with jurisdiction to” determine, initially, if it has

subject matter jurisdiction. Stover, 176 A.3d at 1027. While the OOR has subject

matter jurisdiction to hear appeals from state and local agencies, it does not have

jurisdiction to review appeals from determinations of a judicial agency. Id. The

OOR also does not have subject matter jurisdiction to review the records of a judicial

agency to determine if they are disclosable under the RTKL. See Grine, 138 A.3d

at 99 (stating the “OOR lacks jurisdiction over appeals involving records of a judicial

agency” (citation omitted)); Lackawanna County, 2 A.3d at 813-14 (stating records

of a judicial agency are “not subject to the jurisdiction of the OOR” and the OOR’s

attempt to expand that jurisdiction in a RTKL appeal to order disclosure of such

records violated the separation of powers doctrine). Here, the OOR reviewed

Requester’s appeal from County’s denial, agreed the records requested were those

of a judicial agency, and disclaimed having subject matter jurisdiction over those

26

records, “including those in the possession of an agency within the OOR’s

jurisdiction.” (R.R. at 12a.)

Both parties agree it is the character of the record that controls whether the

record is “of” the judiciary or “of” a local agency, which will then govern the

standard used to determine if the record is disclosable and which entity, the OOR or

a court of common pleas, has subject matter jurisdiction over any related appeal. In

making this determination, courts examine whether the record is produced by the

agency, reflects an activity or operation of the agency, or documents the transactions

of the agency. If the subject matter of a requested record reflects the agency’s

operations, it is “of” that agency.

In Lackawanna County, two substantially identical requests were made to

Lackawanna County seeking “inappropriate e[]mails from or to any e[]mail accounts

used by” the director of the county’s Office of Domestic Relations relating to the

director’s suspension. 2 A.3d at 812. Lackawanna County denied the request, and

the requester appealed to the OOR. During the pendency of the appeal, the district

court administrator for the Lackawanna County Court of Common Pleas submitted

an affidavit and letter to the OOR “stating that [the director]’s e[]mails were records

of the judiciary, and that the RTKL was not applicable to the judiciary.” Id. The

OOR granted the requester’s appeal and ordered Lackawanna County to release the

records. In doing so, the OOR reasoned the director was a judicial employee even

though he was paid by Lackawanna County because he was supervised by the

judiciary, but his emails were Lackawanna County records because the County “had

access to them and control over them as it provided the court with its computer

system on which they were located.” Id. Thus, the OOR found the emails were local

agency records and public pursuant to the RTKL. Id.

27

The Lackawanna County Court of Common Pleas, through the Administrative

Office of Pennsylvania Courts (AOPC), appealed to this Court arguing the director

was a court-supervised employee, and the fact that the director’s salary was paid by

Lackawanna County was of no moment. Id. at 813. Therefore, AOPC asserted his

emails were records of a judicial agency not subject to disclosure pursuant to the

RTKL, and the OOR had no jurisdiction to order the emails to be released. It also

argued the separation of powers doctrine was violated because the OOR “has no

jurisdiction over court documents and [their disclosure] vitiates the general

supervisory authority of the Supreme Court of Pennsylvania over all courts and

personnel in the [UJS].” Id.

This Court agreed with both arguments, explaining:

As there is no allegation that the records at issue here are financial

records, and as it is axiomatic that any record produced by a judicial

employee is a record of a judicial agency, we need only consider

whether [the director] was a judicial employee in order to decide this

case.

Id. This Court concluded the director was an employee of the Lackawanna County

Court of Common Pleas because Section 961 of the Judicial Code, 42 Pa.C.S. § 961,

requires every court of common pleas to have a domestic relations section, and the

director’s position made him “an administrative staff employee of the [UJS].”

Lackawanna Cnty., 2 A.3d at 813. Thus, any records he produced were “of” a

judicial agency and not subject to the jurisdiction of the OOR. Id. The fact the

director was paid by Lackawanna County “d[id] not affect his status as a judicial

employee.” Id. (citing County of Lehigh, 489 A.2d at 1327). Regarding Lackawanna

County’s storage of the records, the Court reasoned:

28

Just because the [c]ounty provides logistic support to the courts does

not mean that every record stored on what Lackawanna County

provides as part of its function to support the court makes it a [c]ounty

record—those records always remain the records of the court.

Otherwise, every record ever generated by a [c]ounty court, including

the draft opinions and law clerk memorandums, would be accessible

through the RTKL simply by submitting the request to the [c]ounty

instead, an absurd result that would make Section 304 of the RTKL

meaningless. See 1 Pa.C.S. § 1921(a) (“Every statute shall be

construed, if possible, to give effect to all its provisions.”), and

1 Pa.C.S. § 1922(1) (“[T]he General Assembly does not intend a result

that is absurd, impossible of execution or unreasonable.”).

Lackawanna County, 2 A.3d at 813 (emphasis added). The Court concluded the

OOR’s order, in addition to violating the RTKL, “constituted a blatant and

unconstitutional violation of the separation of powers doctrine.” Id. at 814.

Moreover, the Court observed:

Among the judiciary’s powers is the ability to supervise its own

personnel without interference from another branch of

government. See First Judicial Dist[. of Pa. v. Pa. Hum. Rels.

Comm’n,] 727 A.2d[, 1110,] 1112[ (Pa. 1999)]; Cnty. of Lehigh, . . .

489 A.2d at 1327; L.J.S [v. State Ethics Comm’n,] 744 [A.2d 798,] 801

[(Pa. Cmwlth. 2000)]. An inescapable corollary to this power is that no

administrative agency may exercise control over the records generated

by personnel of a judicial agency.

Id. (emphasis added).

Similarly, cell phone records were found to be records of the judiciary in

Grine notwithstanding that the cell phone bills were paid by the county. There,

Centre County responded to a RTKL request asking for cell phone records of a

common pleas judge, a magisterial district judge, and a district attorney (DA).

Because Centre County paid the cell phone bills for the judges pursuant to a contract

with Verizon (but not the DA who used her personal cell phone), and Centre County

had access to the cell phone records, the request was given to the Centre County

29

open records officer. Centre County released parts of the judges’ telephone numbers

and crafted a spreadsheet tracking cell phone usage between the judges and DA,

although the response did not provide the contents of the communications, nor the

cost of cell phone services.

The judges requested the trial court enter a preliminary injunction to enjoin

the release of the records, which was granted. The court found the records were

“relat[ed] to activities of the Judges [which] pertain to a judicial agency.” Id. at 92

(emphasis added). Regarding the separation of powers argument, the trial court held

Centre County lacked jurisdiction to release the cell phone records, enjoined Centre

County from responding to requests submitted under the RTKL for “judicial

records,” and directed Centre County to refer requests for “judicial records” to the

judicial agency. Id.

Centre County appealed to this Court, arguing the cell phone records were

public financial records, while the judges asserted the cell phone records reflected

UJS personnel communications, they were not records “of” Centre County, and their

disclosure would violate the separation of powers doctrine. This Court noted the

dispute

underscores the dilemma agencies face when a RTKL request seeks

records that document an activity of more than one agency. The [cell

phone r]ecords document the [c]ounty’s payment for services as well

as the [j]udges[’] use of services. The [j]udges do not dispute that

financial records of a judicial agency are public.[] Their concern lies

with maintaining control over records of a judicial agency when they

are in another branch’s possession.

Grine, 138 A.3d at 93. As to the RTKL, Rule 509, and financial records of a judicial

agency, we noted:

30

At the outset, we emphasize that access to financial records of the [UJS]

is governed by Rule 509 . . . . The parties here do not ask us to

distinguish between the provisions of that Rule and the very similar

provisions of the RTKL which on their face refer to judicial agencies.

We decline to embark on that journey uninvited. Similarly, we decline

to explore on our own motion the interplay between the Rule and the

RTKL statute. Instead, we will confine our analysis to the arguments

raised by the parties, which refer almost exclusively to the RTKL.

Id. at 93 n.4. We held that, under the RTKL, “a record qualifies as ‘of’ an agency

when the record ‘documents a transaction or activity of the agency[,]’” and

“‘[d]ocuments’ means ‘proves, supports [or] evidences.’” Id. at 94 (emphasis added)

(quoting Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, Inc. (ASCI),

13 A.3d 1025, 1034-35 (Pa. Cmwlth. 2011) (en banc) (fourth alteration in original).)

We explained:

In discerning whether records qualify as records “of” a particular

agency, we consider the subject[ ]matter of the records. Meguerian [v.

Off[.] of Att[’]y. Gen., 86 A.3d 924 (Pa. Cmwlth. 2013);] see also Off[.]

of Att[’]y. Gen. v. Phila. Inquirer, 127 A.3d 57, 63 (Pa. Cmwlth. 2015)

(“For emails to qualify as records [‘]of[’] an agency, we only look to

see if the subject[ ]matter of the records relate[s] to the agency’s

operations.”). The location of the record or an agency’s possession

does not guarantee that a record is accessible to the public; rather, the

character of the record controls. Easton Area Sch. Dist. v. Baxter, 35

A.3d 1259 (Pa. Cmwlth. 2012). A record does not need to be generated

by the agency receiving a RTKL request to qualify as “of” that agency.

Grine, 138 A.3d at 95. Although the cases relied upon by Centre County in Grine

indicated records of an agency’s cell phone services were financial records reflecting

the disbursement of agency funds, the records in the cited cases “did not reveal

activities of the judiciary,” as the records sought in Grine had. Id. at 96. Because

the records at issue in Grine reflected the activities of the judicial agency, the judges,

31

and the DA, they were not a record “solely of [the c]ounty.” Id. at 96 (emphasis

added).

As to the separation of powers doctrine, we reasoned:

The dual status of the records as documenting activities of the [c]ounty

and of the judicial agency is central to this dispute. The RTKL affords

different levels of access to any non-exempt records of a local agency,

such as [a c]ounty, but it allows access only to financial records of a

judicial agency.

Id. at 97 (bold emphasis added).17 We explained:

To preserve the separation of powers, a requester [i]s unable to access

records of activities of a judicial employee by seeking the records

through a county. [Lackawanna Cnty., 2 A.3d at 813.] Allowing

another agency to direct a judicial employee violated the separation of

powers because it interfered with the judiciary’s oversight and

supervision of judicial employees. The trial court applied the same

rationale here.

The trial court here reasoned that records relating to activities of the

[j]udges pertained to members of the [UJS]. Such activities are under

the exclusive oversight of our Supreme Court. Following Lackawanna

County [], the trial court concluded records documenting the [j]udges’

use of cell phone services were not accessible through [the c]ounty. In

so doing, the trial court did not err or abuse its discretion.

[The c]ounty attempts to distinguish Lackawanna County [] because

that case involved the content of communications of a judicial

employee, and content is not at issue here. However, our holding that

records of a judicial employee are records of a judicial agency, and so

beyond [the] OOR’s jurisdiction, did not depend on the content of the

17

In Schneller v. Philadelphia District Attorney (Pa. Cmwlth., No. 1313 C.D. 2016, filed

August 3, 2017), slip op. at 2-3 (emphasis added), “we reject[ed the r]equester’s premise that

‘judicial records’ are accessible under the RTKL. . . . Indeed, the RTKL contains no such term.

See Section 102 of the RTKL.” Moreover, the requester did not “explain the records evidence an

activity ‘of’ a judicial agency so as to have dual character as a local agency record and a judicial

agency record. Grine.” Id. (emphasis in original).

32

records. Our rationale was based on the need for the judiciary to

retain supervisory control over its personnel.

Id. at 97-98 (emphasis added, footnotes omitted).

In sum, the Grine Court reasoned “the [j]udges [had] established a clear right

to relief to ensure the judiciary retains control over records showing the

activities of [UJS] personnel,” even if the records were simultaneously held by a

county. Id. at 100 (emphasis added). This Court ultimately affirmed the grant of

injunctive relief against Centre County, while noting Centre “County remain[ed]

free to disclose financial records of [the c]ounty that [were] not also records showing

activities of a judicial agency, and thus comply with the RTKL.” Id. at 101

(emphasis added).

In Stover, this Court reiterated the need to review the character and subject

matter of a requested record, rather than which office possessed the record, when it

was tasked with determining whether orders of conviction and sentencing, and a

commitment form, were records “of” a district attorney’s office (a local agency) or

“of” the court of common pleas (a judicial agency). 176 A.3d at 1028. This Court

held:

The fact that the [d]istrict [a]ttorney may possess – or readily obtain –

a copy of the sentencing order in no way transforms the record of a

judicial agency into a record of a local agency.

....

Moreover, if a court’s sentencing order is a record of a judicial agency,

then so must be a court’s order memorializing a defendant’s conviction

and/or judgment. In both instances, the character and subject matter

of the requested records evidence the duty and power of the court

while acting as a judicial agency, and the orders document activities

that are solely and uniquely vested in and committed to the judicial

branch of government.

33

....

Regarding the requested [c]ommitment [f]orm, our General Assembly

has directed the court of common pleas to create and issue these forms

as part of its judicial functions in sentencing a defendant to a

particular place of confinement. . . . Consequently, this requested

record, too, is one “of” a judicial agency.

Id. at 1029 (emphasis added). Thus, if the record evinces the duty and power of a

judicial agency as part of the agency’s functions and documents the activities of a

judicial agency, Stover, 176 A.3d at 1029, it is a record “of” the judicial agency.

Here, as stated in Grine, and consistent with Lackawanna County and Stover,

“we [must] evaluate whether a record documents an agency’s activity or

operations.” Grine, 138 A.3d at 95 (emphasis added). Prothonotary employees,

like the employee at issue in Lackawanna County, are paid by County; however, this

“does not affect [their] status as [] judicial employee[s].” 2 A.3d at 813. The records

at issue in Lackawanna County, the inappropriate emails the director had produced

or generated, were records of a judicial agency because they were produced or

generated by personnel of a judicial agency. Moreover, the records requested in

Lackawanna County implicated separation of powers concerns because those

records directly related to, and had an impact on, “the judiciary’s . . . ability to

supervise its own personnel without interference from another branch of

government” because those emails concerned the director’s suspension from a

judicial employee position. Id. at 814 (emphasis added). Ultimately, the decision

in Lackawanna County was most concerned with records that were judicial in nature

as they were the emails from a judicial employee and associated with the judicial

agency’s ability to supervise its own employee.

However, a record need not be generated by an agency or its personnel for it

to qualify as a record “of” the agency. Bagwell, 76 A.3d at 90. The records at issue

34

in Grine were not produced or generated by the judicial agency, but were nonetheless

records of that agency because they reflected the activities of a judicial agency’s

“employees,” there, judges. That they also reflected Centre County’s payment for

cell phone services for the judges did not remove the records from being “of” the

judicial agency. Grine, 138 A.3d at 97.

Here, whether the record at issue qualifies as “of” Prothonotary depends on

whether it “documents a transaction of” or activities of Prothonotary. Id. at 94.

Considering the subject matter of the requested record, as we must, id. at 95, it

contains the following regarding each Prothonotary employee: a department

number, first and last name, hiring date (redacted), termination date (redacted),

hourly pay, annual pay, and each employee’s title (R.R. at 176a). This information

was compiled by and is in the possession and control of County. At issue is solely

the hiring and termination dates of employees of Prothonotary, a judicial agency.

Court prothonotaries and their employees are personnel of the UJS, and, thus,

are considered employees of a judicial agency. A prothonotary’s work and activities

support the work and activities of the court and are considered functions of the court

system. Part of these activities is the appointment and removal of the prothonotary

office’s staff, 42 Pa.C.S. § 2735, and a prothonotary’s supervision of that staff.

Judicial Records Manager noted the employees of Prothonotary are under the joint

supervision of Prothonotary and County Commissioners. (R.R. at 52a.)

Accordingly, those records document Prothonotary’s activity of hiring or removing

Prothonotary employees, who perform duties in support of the judiciary, and,

therefore, “evidence [a] duty and power of” Prothonotary “while acting as a

judicial agency,” Stover, 176 A.3d at 1030 (emphasis added). Ultimately, the

records at issue are about judicial employees, and their hiring and subsequent

35

termination by Prothonotary, who is likewise judicial personnel, and are records

“document[ing] activities of judicial personnel.” Grine, 138 A.3d at 100; Stover,

176 A.3d at 1030. Because these records are records “of” Prothonotary, rather than

“of” County, common pleas did not err in concluding that the OOR lacked

jurisdiction over the requested records because they are records of a judicial agency.

Lackawanna County, 2 A.3d at 813-14.18

D. Whether common pleas erred in the January Decision by directing the

transfer of the Request to Judicial Records Manager and President Judge

erred in affirming the redaction of the length of service information

1. Parties’ Arguments

Requester argues common pleas erred in directing that the Request be referred

to Judicial Records Manager for review under Rule 509 in the January Decision

because the records are not of the judiciary. (Requester’s Br. at 24.) The redacted

length of service information is public, Requester maintains, and President Judge

18

The dissent “do[es] not dispute that Prothonotary is a ‘judicial agency.’” Scolforo v.

County of York, __ A.3d __, __ (Pa. Cmwlth., Nos. 359, 360 C.D. 2021, filed June 30, 2023), slip

op. at 3 (McCullough, J., dissenting). Rather, the dissent would hold that the requested records

are not “of” the judiciary because they “were not created by the judiciary in the course of its

functions, [] they do not evidence any ‘transaction’ or ‘activity’ of the judiciary,” “are generated,

housed, and modified as necessary by [] County, not Prothonotary acting as a judicial office[,]”

and the “employees’ salaries and benefits are paid entirely by [] County.” Scolforo, __ A.3d at __,

slip op. at 3-5 (McCullough, J., dissenting). For these reasons, the dissent concludes the requested

records are distinct from the records at issue in Lackawanna County and Grine and should not be

considered records “of” the judiciary. Id. Under our precedent, however, a record does not have

to be “created” by or in the possession of an agency for it to qualify as a record “of” that agency.

Grine, 138 A.3d at 95; Bagwell, 76 A.3d at 90. In asserting the length of service record of a

Prothonotary employee does not “evidence any ‘transaction’ or ‘activity’ of the judiciary,” or

Prothonotary acting as a “judicial office,” Scolforo, __ A.3d at __, slip op. at 4 (McCullough, J.,

dissenting), the dissent does not acknowledge that one such “activity” of a prothonotary under the

Judicial Code is to appoint and terminate the employees that perform the work that supports the

work and activities of the court and which are considered functions of the court system. 42 Pa.C.S.

§ 2735(a). Thus, these are not reasons to find that a record is not “of” Prothonotary, a judicial

agency.

36

erred in finding they are not financial records under Section 304 of the RTKL.

Requester argues that, under the Supreme Court’s decisions in Pennsylvania State

University v. State Employees’ Retirement Board, 935 A.2d 530 (Pa. 2007) (Penn

State), and, more recently, in City of Harrisburg, 219 A.3d 602, the definition of

financial records should be broadly interpreted to include records that bear a close

connection to a financial record. Requester also asserts the Request should be

reviewed under Rule 509, if the responsive records are not disclosable under the

RTKL.19

County responds there was no error in President Judge’s finding Section

708(b)(6)(ii) inapplicable because that section does not apply to a request for

financial records from a judicial agency. It further asserts President Judge correctly

determined that the length of service information was not a financial record under

Sections 102 and 304 of the RTKL. (County’s Br. at 18.) County argues it cannot

be directed to release records it retains for the judiciary until after a request is

properly considered under Section 304 and Rule 509. (Id. at 19.)

2. Analysis

We begin with Requester’s claim that common pleas erred in having this

matter referred to Judicial Records Manager. We are not persuaded this argument

supports reversal. Having concluded the responsive records were “of” a judicial

agency over which the OOR has no jurisdiction, common pleas took steps to have

the Request considered by the person charged with reviewing requests for judicial

records, Judicial Records Manager, by having County refer the Request to Judicial

Records Manager for consideration. We discern no error in common pleas’ attempt

19

These last two arguments were made at oral argument.

37

to have the Request reviewed and resolved without requiring the filing of another

request.

We next turn to Requester’s assertion the responsive records are disclosable

under the RTKL and/or Rule 509. Because the responsive records are “of” a judicial

agency, they are only disclosable if they are financial records as both Section 304 of

the RTKL and Rule 509(a) limit disclosure to those types of records. The RTKL

provides that judicial agencies “shall provide financial records in accordance with

the [RTKL] or any rule . . . of court providing equal or greater access to the records.”

65 P.S. § 67.304(a). Section 304 invokes not only the terms of the RTKL, but also

any rule of court that provides equal or greater access to the financial records of

judicial agencies. One such court rule is Rule 509(a), which states: “Financial

records of the [UJS] are presumed to be open to any member of the public . . . .”

Pa.R.J.A. 509(a). Section 102 of the RTKL and Rule 509(a) define financial records

similarly. Compare 65 P.S. § 67.102, with Pa.R.J.A. 509(a).20 At issue is whether

20

The RTKL defines “financial record,” in relevant part, as follows:

(1) Any account, voucher or contract dealing with:

(i) the receipt or disbursement of funds by an agency; or

(ii) an agency’s acquisition, use or disposal of services, supplies, materials,

equipment or property.

(2) The salary or other payments or expenses paid to an officer or employee of an

agency, including the name and title of the officer or employee.

65 P.S. § 67.102. Rule 509(a) defines “financial records”

as any account, contract, invoice or equivalent dealing with: 1) the receipt or

disbursement of funds appropriated to the system; or 2) acquisition, use or disposal

(Footnote continued on next page…)

38

the employees’ length of service, which were contained in the spreadsheet but were

redacted, must be disclosed as a financial record.

“Length of service” is not included on the face of the definitions of financial

records in either Section 102 of the RTKL or Rule 509(a). However, our Supreme

Court has consistently interpreted the phrase “any account, voucher or contract

dealing with . . . the disbursement of funds by an agency,” found in the RTKL’s

definition of financial record, 65 P.S. § 67.102, and the definition of public record

under Section 1 of the prior Right-to-Know Act21 (RTKA) broadly to “encompass[]

not merely accounts, vouchers and contracts but also records bearing a sufficiently

close connection to such ‘fiscally related’ categories, so long as they also ‘deal

with the receipt or disbursement of funds by an agency.’” City of Harrisburg,

219 A.3d at 612 (quoting LaValle v. Off. of Gen. Counsel, 769 A.2d 449, 456 (Pa.

2001); N. Hills News Rec. v. Town of McCandless, 722 A.2d 1037, 1039 (Pa. 1999))

(emphasis added); see also Penn State, 935 A.2d at 534 (“[T]he RTKA reaches

materials that are not facially accounts, vouchers, or contracts, but nonetheless bear

some close connection with one or more of these statutory categories.”). This

category of records “was meant to encompass ‘some range of records beyond those

which on their face constitute actual accounts, vouchers or contracts.’” City of

Harrisburg, 219 A.3d at 613 (quoting N. Hills News Rec., 722 A.2d at 1039). “[F]or

a record to deal with the disbursement of funds by an agency it need not directly

‘show’ a disbursement by the agency.” Id. at 615 (emphasis in original). Requiring

of services, supplies, materials, equipment or property secured through funds

appropriated to the system.

Pa.R.J.A. 509(a).

21

Act of June 21, 1975, P.L. 399, as amended, formerly 65 P.S. § 66.1, repealed by the Act

of February 14, 2008, P.L. 6.

39

a “close connection” between the record requested and one of the statutory

categories is consistent with the General Assembly’s intent that the RTKL and

earlier “RTKA [] be liberally construed ‘to fully implement the policy of

disclosure[.]’” Id. at 614 (quoting LaValle, 769 A.2d at 456).

The Supreme Court has applied these principles to conclude a spreadsheet

listing information about donors to a legal defense fund was a financial record under

the RTKL because it bore a close connection to an account as it “reflect[ed] a list

of monetary receipts . . . to the City [of Harrisburg]” which were deposited into the

legal defense fund’s bank account. City of Harrisburg, 219 A.3d at 616. It likewise

found documents submitted to the Department of Public Welfare (DPW)22

containing rates paid by private health plan contractors to dental subcontractors as

part of implementing a Medicaid program were financial records under the RTKL

because they “plainly ‘deal[t] with’ with DPW’s disbursement of billions of

dollars of public monies . . . as well as [DPW’s] acquisition of services to meet its

obligations under federal and state law.” Dep’t of Pub. Welfare v. Eiseman, 125

A.3d 19, 30 (Pa. 2015) (emphasis added). And, most relevant to this matter, the

Supreme Court concluded information about the salaries and service histories of

Penn State employees constituted public records of the State Employees Retirement

System under the RTKA. The Supreme Court reasoned the information was “used

to establish [the employees’] contractual rights [(to their defined benefits)], and is

detailed and evidenced in the form of records which would otherwise fit the

definition of ‘account, voucher or contract dealing with the receipt or

disbursement of funds by an agency.’” Penn State, 935 A.2d at 535 (emphasis

added). Although Penn State involved the RTKA, its rationale is applicable to the

22

DPW is now known as the Department of Human Services.

40

RTKL because the General Assembly used the same language in the definition of

financial record in the RTKL as it used in defining a public record under the RTKA,

and “[w]e presume . . . that the General Assembly intended this same language in

the RTKL . . . to have the same meaning we gave it under the RTKA.” City of

Harrisburg, 219 A.3d at 612.

While an employee’s length of service does not directly show the

disbursement of funds, this is not required for the record to be considered as dealing

with the disbursement of funds by an agency. Id. at 614. Similar to how the Penn

State employees’ length of service records dealt with the disbursement of public

monies in the nature of retirement benefits to which they had a contractual right, the

length of service of Prothonotary employees deals with the disbursement of public

monies in the nature of the compensation which they have a right to receive as

employees. The compensation for prothonotary employees is fixed by either the

prothonotary or by a county board with the prothonotary as a member. 42 Pa.C.S.

§ 2735(c). The connection between the length of service records and the “fiscally

related” categories of the definition of financial record is sufficiently close to include

them in the “‘range of records beyond those which on their face constitute actual

accounts, vouchers or contracts.’” City of Harrisburg, 219 A.3d. at 613 (quoting

N. Hills News Rec., 722 A.2d at 1039). Including length of service information in

the RTKL definition of financial record based upon its close connection to the

statutory classifications and its dealing with the disbursement of public monies is

consistent with the General Assembly’s intent that the RTKL is to be liberally

construed so as “‘to fully implement the policy of disclosure.’” Id. at 614 (quoting

LaValle, 769 A.2d at 456). Accordingly, we conclude the length of service

41

information of a judicial agency’s employee is a financial record disclosable under

Section 304 of the RTKL.

Requester also contends Section 708(b)(6)(ii) of the RTKL23 clearly

establishes length of service information is public and disclosable. President Judge

rejected this contention reasoning this provision did not apply to a judicial agency,

and County maintains this question must be resolved under Rule 509’s definition.

However, we need not reach these issues based on our conclusion that records of

Prothonotary’s employees’ length of service fall within the RTKL’s definition of

financial record as broadly interpreted by our Supreme Court. As they are financial

records as defined by the RTKL, they are disclosable pursuant to Section 304 of the

RTKL, and President Judge erred in affirming their redaction. Accordingly, the

March Decision upholding that redaction is reversed.24

III. CONCLUSION

Because we discern no error in common pleas’ determination that

Prothonotary is a judicial agency and the requested records are records of

23

This section states: “Nothing in this paragraph [(relating to the exemption of certain

personal identification information from disclosure)] shall preclude the release of the . . . length of

service of a public official or an agency employee.” 65 P.S. § 67.708(b)(6)(ii).

24

The dissent states there is no separation of powers issue here if the requested records are

considered “of” County because common pleas “has no supervisory authority over Prothonotary

employees other than as they are working in court and performing court functions” and Judicial

Records Manager had “no authority over Prothonotary or its employees.” Scolforo, __ A.3d at __,

slip op. at 6 (McCullough, J., dissenting). However, common pleas itself disagreed with Judicial

Records Manager’s view, relied upon by the dissent, finding “that the wage and salary records

requested are judicial records under the control and supervision of the judiciary[,]” and the

requested records were “of” the judicial agency, not County. (January Decision at 19 (emphasis

added), R.R. at 158a.) Because appeals from the denial of disclosure of such records, under either

the RTKL or Rule 509, are decided by the judiciary, not the OOR, the separation of powers

doctrine is not implicated.

42

Prothonotary, it did not err in affirming the OOR’s Final Determination in the

January Decision. However, President Judge erred in upholding Judicial Records

Manager’s partial denial and resulting redaction of the length of service information

because it bears a sufficiently close connection to the statutory categories and deals

with the disbursement of an agency’s funds to constitute a disclosable financial

record pursuant to City of Harrisburg. Accordingly, we affirm the January Decision,

but we reverse the March Decision.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

Judge Fizzano Cannon and Judge Wallace did not participate in the decision in this

case.

43

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Liz Evans Scolforo and :

The York Dispatch, :

Appellants :

:

v. : No. 359 C.D. 2021

:

The County of York :

:

Liz Evans Scolforo, :

:

Appellant :

:

v. : No. 360 C.D. 2021

:

The County of York :

:

ORDER

NOW, July 10, 2023, in accordance with the foregoing opinion, the January

25, 2021 Order of the Court of Common Pleas of York County is AFFIRMED, and

the March 17, 2021 Order of the President Judge of the Court of Common Pleas of

York County is REVERSED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Liz Evans Scolforo and :

The York Dispatch , :

Appellants :

v. : No. 359 C.D. 2021

:

The County of York :

:

:

Liz Evans Scolforo, :

Appellant :

v. : No. 360 C.D. 2021

:

The County of York : Argued: September 12, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

DISSENTING OPINION BY

JUDGE McCULLOUGH FILED: July 10, 2023

In resolving these consolidated Right-to-Know Law (RTKL)1 appeals,

the Majority concludes that the records at issue—name, salary, job title, and length-

of-service records of York County Prothonotary (Prothonotary) employees—are the

records “of” a judicial agency and, therefore, may not be disclosed to the public

without the approval of the judicial records manager of the Court of Common Pleas

of York County, Pennsylvania (common pleas).2 Although I agree with the Majority

that these records are disclosable as public records, I cannot agree with the

Majority’s characterization of these records as those “of” a judicial agency. Rather,

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

2

The judicial records manager of a judicial district is designated by the president judge of

that judicial district. See Pa. R.J.A. 509(c)(1). In York County, and as is common, the judicial

records manager is the district court administrator (DCA). (Reproduced Record (R.R.) 165a-67a.)

these records very plainly are financial records of York County (County), a local

agency, and therefore are disclosable under the RTKL. See Section 708(b)(6)(ii) of

the RTKL, 65 P.S. § 67.708(b)(6)(ii). The tangled procedural history below

highlights in bold relief the difficulty that local records officials have in applying

our precedents to RTKL requests that potentially involve both local and judicial

agencies. Because I believe that the Majority confuses the analytical framework

applicable to these kinds of records requests and unnecessarily complicates and

restricts public access to public records, I must respectfully dissent.

First, on a procedural note, Case No. 359 C.D. 2021 is an appeal from

the decision of common pleas affirming the Office of Open Records’ (OOR) Final

Determination. The OOR concluded that it did not have jurisdiction over the

requested records because the records were those “of” a judicial agency.

(Reproduced Record 12a.) The appeal to the OOR concerned a RTKL request

submitted to the County, which undisputedly is a local agency. Thus, the precise

question before the OOR was not so much whether it had jurisdiction to consider the

appeal, but, rather, whether it had any authority to order the production of the

requested records. We held as much in Philadelphia District Attorney’s Office v.

Stover, 176 A.3d 1024, 1026-27 (Pa. Cmwlth. 2017) (because district attorney’s

office is a local agency under the RTKL, appeal from denial of RTKL request

directed to that office properly was before the OOR, which has “jurisdiction” over

RTKL appeals from local agencies; “the fact that the OOR has jurisdiction to decide

this controversy does not determine whether the OOR has the legal authority to grant

[the r]equester’s request, for the issues are separate and distinct”). I reiterate this

distinction here only to make procedurally clear the fact that the OOR has

“jurisdiction” over appeals from local agency RTKL determinations. The OOR may

thereafter determine that the records at issue are “of” a judicial agency and, therefore,

outside of its authority to either direct or preclude disclosure. This is a fine and

somewhat pedantic point, but an important one, nevertheless.

PAM-2

Second, and more importantly, although I do not dispute that

Prothonotary is a “judicial agency” under the RTKL and our case law, I do not

believe that the requested records (personnel information regarding Prothonotary

employees) are records “of” a judicial agency. As the Majority acknowledges, the

fact that the requested records relate to employees of a judicial agency does not itself

convert them into records “of” a judicial agency. See Scolforo v. The County of York

___ A.3d ___ (Pa. Cmwlth., Nos. 359 & 360 C.D. 2021, filed July __, 2023), slip

op. at 24 (MO). Rather, whether these are records “of” a judicial agency is a question

determined by the subject matter and character of the records. They must

“document” (or prove, support, or evidence) a transaction or activity of the agency.

Stover, 176 A.3d at 1028 (citing and quoting Grine v. County of Centre, 138 A.3d

88, 94-95 (Pa. Cmwlth. 2016) (en banc)). See also ___ A.3d at ___, MO at 26 (“In

making this determination, courts examine whether the record is produced by the

agency, reflects an activity or operation of the agency, or documents the transactions

of the agency.”).

I do not believe that these records qualify as records “of” a judicial

agency under the above standards. The personnel records at issue in these appeals

are generated, housed, and modified as necessary by the County, not Prothonotary

acting as a judicial office. These employees’ salaries and benefits are paid entirely

by the County and not by funds appropriated to the Unified Judicial System (UJS).

See Pa. R.J.A. 509 (defining “financial records” as those that relate to funds

“appropriated to the [UJS]”). The records were not created by the judiciary in the

course of its functions, and they do not evidence any “transaction” or “activity” of

the judiciary. They are, therefore, both categorically and practically distinct from

the records at issue in both Court of Common Pleas of Lackawanna County v.

Pennsylvania Office of Open Records, 2 A.3d 810 (Pa. Cmwlth. 2010), and Grine.

In Lackawanna County, a RTKL request sought records of e-mails sent

to or from e-mail accounts used by the county’s domestic relations office director

PAM-3

(DRO director). Id. at 812. We concluded that the requested records were records

“of” a judicial agency because they were produced by the DRO director, who was

an administrative staff person of the UJS directly supervised by the court of common

pleas. Id. at 813. Thus, “his records [were] records of a judicial agency . . . ,” and

Lackawanna County’s payment of his salary, ownership of the subject e-mail

accounts, and possession of the requested records did not convert the requested e-

mails into county records. Id. We further noted that any attempt by the OOR to

direct production of the DRO director’s e-mails was a “blatant and unconstitutional”

separation of powers violation:

Among the judiciary’s powers is the ability to supervise

its own personnel without interference from another

branch of government. An inescapable corollary to this

power is that no administrative agency may exercise

control over the records generated by personnel of a

judicial agency.

Id. at 814 (citations omitted). For reasons that are obvious, that is not this case. The

requested Prothonotary employee records are generated by the County and

maintained by it for its own financial and employment-related purposes. Nothing in

the record indicates that Prothonotary or any of its employees produced these

documents in any fashion, let alone in the course of performing a judicial activity.

They simply do not evidence any transaction or activity of Prothonotary acting in its

function as a judicial agency. And, as stated above, I do not believe that the records’

mere “relation” to Prothonotary, whatever that might mean, is sufficient to convert

them into records of the judiciary.

Grine also is easily distinguishable for the same reasons. There, the

requester sought cellular telephone records of a common pleas judge, a magisterial

district judge, and a district attorney. Pertinent here, we concluded that the requested

telephone records of the common pleas judge reflected the activities of the judiciary

(i.e., the activities of a judicial officer—a judge), notwithstanding the fact that the

PAM-4

county paid the judge’s cellular telephone bills. On that basis, and to maintain

appropriate separation of powers and preserve the judiciary’s supervisory control

over its personnel, we concluded that the requested records were those of a judicial

agency and were not disclosable by the county. Grine, 138 A.3d at 95, 97-98. And,

although the issue is not now before us, the same analysis would apply to records

generated by county probation officers, who also are supervised by the courts of

common pleas and not by counties. See Lackawanna County, 2 A.3d at 813.

This, in my view, was the point of our conclusion in Stover that records

of a criminal defendant’s sentence and conviction were records of a judicial agency,

no matter where they were housed. We stated that, “in both instances, the character

and subject matter of the requested records evidence the duty and power of the court

while acting as a judicial agency, and the orders document activities that are

solely and uniquely vested in and committed to the judicial branch of

government.” Stover, 176 A.3d at 1029 (emphasis added). Under that standard,

Prothonotary employees’ county-maintained personnel records that, by themselves,

evidence no activity of Prothonotary while acting as a judicial agency, are not

records “of” a judicial agency.

Further, unlike the situations in Lackawanna County and Grine, there

is no separation of powers issue here. As common pleas noted, see ___ A.3d at ___,

MO at 3-4, it has no supervisory authority over Prothonotary employees other than

as they are working in court and performing court functions. Thus, the very real

practical danger with the Majority’s holding is that it potentially makes all, or almost

all, financial records related to Prothonotary and its employees the financial records

“of” a judicial agency. That means that any records related to Prothonotary’s

functioning or financial matters could not be released under the RTKL without the

approval of the district court administrator, who has no authority over Prothonotary

or its employees. This potentially would include budgeting, salaries, raises, bonuses,

and the like. I do not believe that is an appropriate result. To further illustrate and

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press the point, contrast the employee records requested here with financial records

maintained and generated by Prothonotary that evidence the payment of costs, fees,

and judgments, costs associated with service of legal filings, and records of paid-

into-court funds such as a divorce master’s fee. Those records, clearly, are financial

records of the judiciary because they document a transaction or activity of a judicial

agency acting as a judicial agency.

Finally, as I noted above, the requested records at issue here likely

would not qualify as “financial records” under Pennsylvania Rule of Judicial

Administration 509, which defines “financial records” of the UJS as those that relate

to funds that are appropriated to the UJS. These Prothonotary personnel records

relate to county-funded employment. The Majority declines to address this issue,

see ___ A.3d at ___, MO at 42, but I think it is telling that our own Judicial

Administration rules do not consider these records to be “financial records” of the

UJS even though Prothonotary employees might be considered personnel of the UJS.

In sum, I would conclude that the requested records are disclosable

under the RTKL as financial records of the County, a local agency. Under section

708(b)(6)(ii) of the RTKL, 65 P.S. § 67.708(b)(6)(ii), length-of-service records

expressly are disclosable. This, to my mind and under our case law, is a cleaner

outcome disposing of both appeals in a fashion that is readily applicable in future

RTKL cases involving records that potentially “relate” to more than one kind of

agency.

________________________________

PATRICIA A. McCULLOUGH, Judge

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