Stein v. Plymouth Township

CONCURRING OPINION BY

Senior Judge FRIEDMAN.

I agree with the majority that the Right-to-Know Law (Law) 1 does not require Plymouth Township (Township) to disclose to Burton Stein (Stein) the name of the person who complained to the Township about Stein’s alleged misuse of his properties. However, I write separately to offer an alternative analysis that follows, as closely as possible, the language of the Law.

The Township initiated a zoning enforcement action against Stein after receiving a complaint that Stein was using certain properties in violation of the zoning laws. Stein requested, pursuant to the Law, that the Township give him access to records disclosing the identity of the complainant. The Township denied the request because section 708(b)(17)(i) of the Law 2 exempts complaints from disclosure. Stein appealed to the Office of Open Records, which upheld the Township’s decision, and, on further appeal, the Court of Common Pleas of Montgomery County affirmed. Stein now appeals to this court.

I. Section 708(b)(17)(i)

Stein argues that, although section 708(b)(17)(i) of the Law exempts complaints from disclosure, the provision does not specifically exempt the complainant’s identity. Stein points out that section 708(b)(6) of the Law exempts records containing specific personal information, and, thus, the General Assembly knew how to specifically exempt the name of the complainant in section 708(b) (17) (i) if it intended to do so. 65 P.S. § 67.708(b)(6). I reject this argument based on the clear language of the Law.

*1184 Section 701 of the Law 3 requires that, unless otherwise provided by law, a “public record” shall be accessible for inspection and duplication in accordance with the Law. Section 102 of the Law defines the term “public record,” in part, as a “record ... that ... is not exempt under section 708.” 4 65 P.S. § 67.102. Section 102 of the Law defines the term “record,” in part, as “[^Information ... that documents a transaction or activity of an agency and that is created, received or retained ... in connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102 (emphasis added).

Section 708(e) of the Law provides that, “[i]n determining whether a record is exempt from access under this section, an agency shall consider and apply each exemption separately.” 65 P.S. § 67.708(e) (emphasis added). Therefore, in determining whether information received by an agency in connection with an activity is exempt from access, we consider each section apart from the others. Stein’s attempt to construe section 708(b)(17)(i) of the Law based on section 708(b)(6) is improper.

Section 708(b)(17)(i) of the Law exempts from access a “record” relating to a noncriminal investigation, including “Mom-plaints submitted to an agency.” 65 P.S. § 67.708(b)(17)(i). Based on the statutory definition of “record,” this means that the information in a complaint received by an agency in connection with a noncriminal investigation is exempt 5 from access and, thus, is not a “public record.” Accordingly, the name of a complainant contained in a complaint is exempt from access under section 708(b)(17)(i).

II. Section 708(b)(6)

Despite the requirement that each exemption be considered separately, the majority considers section 708(b)(6) of the Law in conjunction with section 708(b)(17)(i). The majority states that section 708(b)(6) of the Law “prevents disclosure of certain personal information when it is contained in a document or file to which access is otherwise allowed.” (Majority op. at 1182) (emphasis added). I disagree that section 708(b)(6) necessarily relates to personal information in documents or files to which access is otherwise allowed.

As indicated above, a “public record” is a “record” that is not exempt under section 708 of the Law. 65 P.S. § 67.102. Section 708(b)(6)(i)(A) exempts, inter alia, “a record containing all or part of a person’s Social Security number, driver’s license number, personal financial information, home, cellular or personal telephone numbers, personal email addresses, employee number or other confidential per *1185 sonal identification number.” 65 P.S. § 67.708(b)(6)(i)(A). A document or file, i.e., a “record,” containing the specified personal information is not a “public record”; thus, contrary to the majority’s statement, no information in that “record” is accessible.

However, section 708(c) of the Law states that the “exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection [(b)(6)].... ” 65 P.S. § 67.708(c) (emphasis added). Therefore, a “financial record” containing the personal information in section 708(b)(6) is, except for the personal information, a “public record.”

Based on the foregoing, I also would affirm.

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

. 65 P.S. § 67.708(b)(17)(i).

. 65 P.S. § 67.701.

. I note that, because the legislature defined a "public record" to exclude a record that is "exempt” under section 708, an exempt record is not a "public record." The legislature could have defined "public record” as any record of a Commonwealth or local agency and then set forth various "exceptions” for their disclosure, but the legislature did not do so. The result of the chosen statutory scheme is that every "public record” is accessible to the public, without “exception,” avoiding the anomaly of having "public records” that are not public.

.The majority states that section 708(b)(17)(i) provides an "exception” for disclosure of records relating to a noncriminal investigation. (Majority op. at 1180-81.) However, although section 708(b) is labeled "Exceptions," the provision states that it is setting forth matters that are "exempt” from access under the Law, referring back to the definition of "public record.” 65 P.S. § 67.708(b). Thus, to reiterate, the Law requires disclosure of all "public records,” without "exception.”