concurring and dissenting.
I join in the majority’s denial of the motion to quash the petition for review on the grounds of lack of standing or mootness. On the merits, I emphatically agree with the majority’s conclusion that Transcripts of hearings before the Pennsylvania Public Utility Commission (PUC) are within the definition of “public record” in Section 1(2) of the Act commonly known as the Right-To-Know Act (Act), Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § 66.1(2). I respectfully dissent, however, from the determination that the PUC’s practice of requiring litigants to secure copies of transcripts from court reporting firms with whom the PUC has entered into contracts, at terms and conditions specified by the reporting firms, constitutes compliance with the provisions of section 3 of the Act, 65 P.S. § 66.3.
Section 3 provides as follows:
Any citizen of the Commonwealth of Pennsylvania shall have the right to take extracts or make copies of public records and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian thereof or his authorized deputy. The lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies photographs or photostats.
Further, the PUC’s regulation at 52 Pa. Code 5.254(a) provides: “A party or other person desiring copies of the transcript may obtain copies from the official reporter upon payment of the fees fixed therefore [sic].” Pursuant to this provision the PUC has entered into contracts that permit court reporters to set the fees that they will charge to parties or other persons requesting copies of transcripts and that also prohibit the PUC from providing copies.
First, I Point out that Section 2 of the Act, 65 P.S. § 66.2, provides: “Every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.” The right to make photocopies of public records in Section 3 is the counterpart of the right to inspect. In any situations, of which the present case is but one example, the right to inspect without the right “to make photographs or photostats” would be of little use to the person requesting access. The two provisions together establish the basic substantive right of access conferred by the Act. Cases interpreting the Section 3 right to copy public records have held uniformly that the authority to set “reasonable rules” governing the making of copies refers to providing means of copying that are not burdensome to either party and that do not require the person making the request to pay more than the actual, reasonable cost of reproduction.
In Hoffman v. Pennsylvania Game Commission, 71 Pa.Cmwlth. 99, 455 A.2d 731 (1983), the Court first determined that a list of subscribers to a magazine published by the Pennsylvania Game Commission constituted a public record; it then addressed the question of making copies. “[Section 3] makes it clear that any citizen has the right to make copies, including photographic ones, while the records remain in the custody of the agency, authorizing the agency’s custodian to apply reasonable rules governing the making of copies.” Hoffman, 455 A.2d at 734. The Court stated that the applicant had no right to demand the “addressograph labels” that he tentatively sought, bu the Court would leave to the agency to determine how the information would be supplied, “whether to be reproduced by means brought to it by the applicant or by means at hand in the agency at the applicant’s cost.” Id. In Dooley v. Luzerne County Bd. of Assessment Appeals, 168 Pa.Cmwlth. 242, 649 A.2d 728, 729 (1994), the Court noted in Hoffman the agency was afforded discretion as to the means of providing copies, whether electronic *1138or otherwise, but “[t]he agency’s discretion was limited to reproduction procedures and costs.”
From the time the earliest interpretations of the Act, the courts have found in it a principle that the identity of the person making the request, so long as he or she is a citizen of the Commonwealth, and the person’s reason for making the request are irrelevant. In Marvel v. Dalrymple, 38 Pa.Cmwlth. 67, 72, 393 A.2d 494, 497 (1978), the Court stated:
As Wiley v. Woods, [393 Pa. 341, 141 A.2d 844 (1958),] makes abundantly clear, any citizen may seek examination of any ‘public record,’. This right to examine is not dependent upon any other personal or property right, privilege or immunity he may otherwise enjoy but rather whether the documents sought in the case are within the intended framework of any ‘minute, order or decision ... fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.’ (Emphasis added.)
In Hoffman the Court stated that the heart of the state agency’s resistance seemed to be that applicant sought the list of names of subscribers to the magazine for commercial purposes or perhaps distribution of products or even literature in competition with the agency’s magazine. Citing Marvel, the Court in Hoffman rejected the notion that such considerations play any role in the analysis of requests under the Act. In sum, a requested document is a public record or it is not; if it is, then any citizen has full rights of access to it, and the agency’s discretion in setting rules governing the right to make copies is limited to reproduction procedures and costs.
The majority’s analysis violates the principle from Wiley, Hoffman, Marvel and many other cases by creating, without any basis in the Act, two classes of applications and applicants. The transcripts that Petitioners here seek to copy or to have copied for them at the cost of reproduction are public records in the possession and custody of the PUC. As Petitioners note, the PUC regards the transcripts as public records. The request for proposal RFP 1995-01, Article IX, ¶ 1, states: “Because the transcript is a public record, the Commission reserves the right to allow any member of the public to examine the transcript in the public files of the Commission’s Harrisburg or regional offices.” The transcripts are purportedly not in the “control” of the PUC only because the PUC has voluntarily entered into a contract in which it has agreed not to permit copying of the transcript that it purchased from the court reporting firm. The majority approves different treatment for these requests for public records based upon the reason for the request.
There is no dispute that a court reporter’s production of a transcript constitutes a valuable professional service and that the cost of such a transcript, especially when it is voluminous, may be substantial. The PUC has argued that its procedure reasonably assesses the cost of transcripts to those persons appearing in litigation before it. The majority’s acceptance of this proposition, however, reintroduces the concept that the reason for a citizen’s request to inspect and to copy has some bearing on his or her rights under the Act. The Supreme Court in Wiley rejected this idea as inimical to the underlying purposes of the Act within a year of its adoption. I believe that this principle should be followed in this case and that the Petitioners’ requests for copies of transcripts in some reasonable form, at the cost of reproduction, should be granted.
KELLEY and FLAHERTY, JJ., join in this concurring and dissenting opinion.