Sipe v. Snyder

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. The majority holds that monthly summaries of certain financial information compiled for the Department of Public Welfare’s (Department) management monitoring and internal budgeting purposes (Report) is a public record as defined by the Right-to-Know Act because it is an “account ... dealing with the disbursement of funds.” In reaching this holding, the majority relies on public policy considerations not supported by the language of the Act or our case law.

*246Randall Sipe (Sipe) requested the Department to make the monthly Reports available to him for inspection pursuant to the Pennsylvania Right-to-Know Act (Act), Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4. The Department denied the request. Sipe appealed to this court contending that because the Reports contained financial information, they are “accounts” and subject to disclosure as public records as they deal with the disbursement of public funds pursuant to Section 1(2) of the Act, 65 P.S. § 66.1(2). Section 1(2) of the Right-to-Know Act defines a “public record” as:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of sendees or of supplies, materials, equipment, or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons____ (Emphasis added.)

The majority agrees and holds that any reports used for budgeting purposes, and as a means to monitor the productivity of the responsible personnel, are subject to disclosure as a public record. According to the majority, an “account” includes reports generated from data contained in the original record of a disbursement or receipt of funds by an agency. I believe the majority’s interpretation of the meaning of the term “account” as contained in the definition of a public record is at variance with how a “public record” is defined in the Act.

The Pennsylvania Public Right-to-Know Act is not as expansive as some states and certainly not as expansive as the federal Freedom of Information Act (5 U.S.C. § 552). See The Morning Call, Inc. v. Lower Saucon Township, 156 Pa.Commonwealth Ct. 397, 627 A.2d 297, 299, fn. 10 (1993). The Act defines as a public record “any account ... dealing with the disbursement of funds”; unlike other jurisdictions, it does not define public records as summaries of accounts or information about accounts, but only provides that the “accounts” are public records and nothing more. If the General Assembly wanted summaries of accounts or reports of accounts used internally to monitor activity to be available for *247public inspection, it knew how to say it, other jurisdictions did.1

Contrary to what the majority’s opinion suggests, this court has only construed the definition of “account” to include the actual payment documents and not the summaries of budget information. In Butera v. Commonwealth of Pennsylvania, Office of the Budget, 29 Pa.Commonwealth Ct. 343, 370 A.2d 1248 (1977), a case directly on point, we held that budget reports that included summaries of accounts submitted by the various departments to the Secretary of the Budget, with *248necessary information to enable the Secretary to prepare the state budget, were not “accounts” within the definition of the Right-to-Know Act. We found the Legislature intended “account” to have a limited meaning, stating:

We are convinced that when the Legislature used the word “account” in the definition of a public record, it intended that word to have the meaning of a record of debit and credit entries to cover transactions during a fiscal period of time and did not intend the word “account” to mean a statement of facts or events. Whether the reports required to be provided to the Budget Secretary are public records appears to be a question of first impression. However, we view them as providing a more realistic State budget, rather than being accounts to him by agencies relative to the receipt or disbursement of funds or the use of services, materials, equipment or other property. General listings of revenues and expenditures, as set forth in the reports here, are neither accounts nor vouchers nor contracts. (Emphasis added.)

Id. at 346, 370 A.2d at 1249. We limited the term “account” to those records documenting the “receipt or disbursement of funds or the use of services, materials, equipment or other property.” Id. In other words, an “account” documents a fund from which monies are disbursed or received. The Report being sought by Sipe is certainly not an “account”; i.e., not a debit or credit, but a “general listing of revenue and expenditures”, a “statement of facts or events” by which the Department monitors performance.

Moreover, the cases on which the majority relies do not support its holding. The majority erroneously relies on Carbondale Township v. Murray, 64 Pa.Commonwealth Ct. 465, 440 A.2d 1273 (1982), to support its expansion of the meaning of “account”. In Carbondale, we held that “account” included a record of business dealings between parties and that can-celled checks were such a record and subject to disclosure under the Act. However, in that case, the actual cancelled checks were sought and not a report generated from data contained in these checks. Conversely, here, Sipe seeks not *249the original records, but a report compiled by the Department from data contained in the audit of provider “accounts”. Likewise, the majority misapplies Anders v. Department of Treasury, 137 Pa.Commonwealth Ct. 111, 585 A.2d 568 (1991). In Anders, we held that a list of uncashed, unclaimed checks held by the Treasury Department did not fall within any of the Act’s exceptions and was subject to disclosure. That list, however, was compiled in order to facilitate disbursement of funds to the payees, unlike here, where the list was used only for internal purposes and neither generated receipts or caused disbursements. See also Hoffman v. Pennsylvania Game Commission, 71 Pa.Commonwealth Ct. 99, 455 A.2d 731 (1983) (holding the subscription list sought was an account identifying the contract between the commission and its subscribers regarding either the distribution of services or property); Kanzelmeyer v. Eger, 16 Pa.Commonwealth Ct. 495, 329 A.2d 307 (1974) (holding school employees’ attendance records were public records because, depending on whether the absences were excused, public funds would be disbursed).

The other cases relied on by the majority are also inapplicable. Those cases held that the lists or material in question were subject to disclosure as an “order or decision by an agency fixing personal or property rights.... ” See Vartan v. Department of General Services, 121 Pa.Commonwealth Ct. 470, 550 A.2d 1375 (1988) (record of bidders a public record); Young v. Armstrong School District, 21 Pa.Commonwealth Ct. 203, 344 A.2d 738 (1975) (list of names of school children a public record); Friedman v. Fumo, 9 Pa.Commonwealth Ct. 609, 309 A.2d 75 (1973) (list of persons taking the Certified Public Accountancy exam a public record). The determinative factor in these cases was that the information sought was either “the basis for ... or an essential component of’ an agency decision. The Reports generated in this case were neither; rather, they more closely resemble the “[gjeneral listings of revenue and expenditures” and are used only for internal budgeting and productivity purposes. They are of a type that we found were non-disclosable in Butera.

*250The real basis for the majority’s holding is not contained in the case law and certainly not in the language of the statute as written, but in broader policy goals expressed as follows:

[The] principle — that the foundations of bureaucratic decision-making should be open to the public — soundly contradicts DPW’s contention that these reports should not be public because, they are for management purposes, i.e., decision-making.
Thus, in the final analysis, we see that the dichotomy expressed by DPW ... [is] not a valid one. The relationship between (1) an account dealing with the disbursement of funds, and (2) an accounting of disbursements assembled for the purpose of internal management is not mutually exclusive. Both of those classes of information involve accounting for public funds and, hence, can be and are public records open to the citizenry which provides those funds.
Indeed, public examination of an isolated debit and credit entry will yield little or no enlightenment to anyone other than the particular individual to whom it pertains, but a compiled accounting of a large series of transactions can well apprise the public as to how public servants are performing, and that obviously is one important purpose of the Right-to-Know Act.
Public agency management data should be open to the top management — the public. (Emphasis added.)

Opinion, p. 1382.

While much recommends the policy considerations set forth in the above-quoted language, the public — who speaks through the General Assembly — has not chosen to be so expansive in defining “public record”. In choosing its words, the General Assembly only said “accounts” are public records; it did not say that “information involved in accounting” nor “compiled accounts” are public records. The majority ignores the issue before us — the definition of what is an “account” — and takes a quantum leap to redefine the definition of “public record” to include “public agency management data.” While the Report *251is certainly “public management agency data”, nothing in the language of the Act or the case law even suggests such a result.

I am sure that when the Right-to-Know Act was enacted, there were those that proposed a much more expansive definition of what are considered public records but were unsuccessful. We are obliged to interpret Acts of the Assembly as written, not as we may wish they were written. As written, an “account” is the record of disbursements and credits, not documents containing information about accounts, not summaries of accounts and not “public management agency data”. I respectfully dissent.

SMITH, J., joins in this dissent.

. In Lower Saucon Township, 156 Pa.Commonwealth Ct. at 402, 627 A.2d at 299-300, fn. 10, we set forth the definition of "public record” in a number of different states “Right-to-Know” Acts. As defined in those states, “public record” is defined as:

State State Statute
Alaska Unless specifically provided otherwise, the books, records, papers, files, accounts, writings and transactions of all agencies and departments are public records and are open to inspection by the public under reasonable rules during regular office hours.... [Alaska Public Records Act § 09.25.110]
Maine The term "public record” means any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation, into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisions, ... of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business, except: [Maine Freedom of Access Act, M.R.S.A. § 402(3)]
West Virginia "Public record” includes any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body. [West Virginia Freedom of Information Act § 29B-1-2]
Louisiana All books, records, writings, accounts, letters ... having been used, being in use or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction,