Department of Conservation & Natural Resources v. Office of Open Records

CONCURRING OPINION BY

Judge McCullough.

I concur with the result reached by the Majority to reverse the Office of Open Records in this matter, but I diverge from the Majority’s reliance upon the three justice plurality opinion in Sapp Roofing Co. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 713 A.2d 627 (1998), that construed the repealed Right to Know Law, the Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.9 (the “1957 Law”). I am not persuaded that the plurality opinion in Sapp Roofing is binding precedent, or that it should guide our interpretation of the new Right to Know Law (RTKL).1 Rather, I believe the proper basis to reverse Open Records is strictly a matter of construing the new RTKL in accordance with the intent and plain meaning of its provisions.

In Sapp Roofing, three justices concluded under the 1957 Law that payroll records of a contractor were “public” (and not, by the way, “financial records” as the Majority now holds) because they evidenced a disbursement of funds. Sapp Roofing is inapplicable to the cases before us, not only because it is a plurality opinion, but because it does not analyze the plain meaning of the terms “account, voucher and contract” under the new RTKL.

Sapp Roofing interpreted the definition of “public record” as defined by the 1957 Law, the four section predecessor to the new fifty-two section RTKL.2 The specific issues before the Sapp Roofing Court were whether the payroll records constituted “public records,” whether the release of payroll records would “impair the personal security of Sapp Roofing’s employees,” and whether that “potential impairment outweighs the public interest in the dissemination of the records.” Sapp Roofing, 713 A.2d at 629. A plurality of the justices concluded that the contractor’s wage records were accessible.

In the instant case, I agree that the records at issue are “public records,” and there is no personal security issue before the court. Instead, we have a statutory construction question unique to the new RTKL: whether payroll records of a contractor are fínancial records for purposes of sections 102 and 708 of the RTKL. While both section 102 of the RTKL and 65 P.S. § 66.1 of the 1957 Law contain the words “account, voucher or contract,” section 102 expands that language beyond the 1957 Law, places the language into the context of financial records, and then incorporates the terms financial records and personal financial information into the exceptions set forth in section 708 of the RTKL. This is a new question, involving a new and more comprehensive statute.

Because the new RTKL is now before us, it is incumbent upon this Court to apply the basic rule of statutory interpretation: when the words of a statute are *947clear and free from all ambiguity, it should be interpreted, solely from the plain meaning of its words ; the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa.Cmwlth.2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (2009).

In relying so extensively upon Sapp Roofing, the Majority posits an extensive explanation as to why they are “constrained” to rely upon a plurality opinion that does not interpret the current RTKL, but rather a prior iteration of it. I respectfully disagree with this explanation. As Justice Eakin wrote for the Supreme Court in Pitt Ohio Express v. Workers’ Compensation Appeal Board, 590 Pa. 99, 912 A.2d 206 (2006), reliance on a plurality opinion of the Supreme Court “is problematic,” because “[w]hile the ultimate order of a plurality opinion ... is binding upon the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.” Id. at 103, 912 A.2d at 208. My concern is that the Majority is unnecessarily elevating the Sapp Roofing plurality opinion to the status of a majority opinion of the Supreme Court, and in so doing ignores the long settled rule that a plurality opinion has no precedential value. By following a plurality decision under the presumptive context of “stare decisis,” the Majority violates that very doctrine by ignoring the settled law concerning plurality opinions as expressed in Pitt Ohio.3

Further, I am not convinced that Sapp Roofing has evolved into a precedential decision because of the majority’s contention that various views of the justices in Sapp Roofing constitute a “strong majority” that weighs against classifying it as a mere plurality opinion. Only five justices heard the case. The lead opinion was written by Justice Castille and joined by Justice Flaherty and it, along with a concurring opinion by Justice Zappala (who wrote separately to note that nothing in the language of either the Prevailing Wage Act, Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1-165-17, or the regulations implementing that Act, 34 Pa. Code §§ 9.101-9.112, appears to require that a contractor submit its payroll records to the public body), and a noted concurrence by Justice Nigro, established the plurality.

In relying on the Sapp Roofing opinion, the Majority tries to divine the thoughts of Justice Nigro, who concurred in the result only and did not write a separate concurring opinion. It is not reasonable to presume the rationale for his decision, except to infer from Justice Nigro’s concurring vote that he did not agree with the rationale of the plurality opinion.

Under the current RTKL, the term “financial record” is defined under section 102 as follows:

“Financial record.” Any of the following:
(1) Any account, voucher or contract dealing with:
*948(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.
(3) A financial audit report. The term does not include work papers underlying an audit.

65 P.S. § 67.102.

I believe it is clear that this definition of financial records does not include the subject third party payroll records, for two reasons. First, these payroll records are clearly not accounts, vouchers or contracts dealing with: (i) receipt or disbursement of agency funds; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property. Justice Cappy’s dissenting views in Sapp Roofing regarding accounts, vouchers, and contracts may provide more insight into the current issue before the Court than the views of the other Justices on the panel. Justice Cappy explained:

There is nothing in [The Prevailing Wage Act at 43 P.S. § 165-10] which would indicate that the required certifications equate to an ‘account, voucher or contract’ evidencing a disbursement of funds by the public agency or that the filing of such certifications propels a disbursement by the public agency for such amounts so as to render the payroll records ‘public’ and thus, obtainable under the Right to Know Act. Indeed, it more clearly addresses monies owed by the contractor and/or subcontractor to their workers and not amounts owed by the public agency. These payroll records constitute neither a record of any business dealings or transactions between Appellant and the School District; accordingly, they are neither a ‘voucher’ nor an ‘account.’ And, they certainly do not evidence any ‘contract’ between the School District and Appellant.

Id. at 114, 713 A.2d at 631 (emphasis added).

Second and most significantly, however, is that paragraph (2) of the definition of financial records refers to the “salary or other payments or expenses paid to an officer, or employee of an agency.” If the General Assembly had intended “salary,” “other payments” or “expenses” of an agency to be an “account, voucher or contract,” it would have expanded the definition in provision (1) to include same. Instead, the General Assembly specifically added this as a second and separate iteration of a “financial record” that applies only to agency officers and employees. In my view, it is simply strained analysis to conclude that the “salary,” “other payments” or “expense” information of third party, non-agency officers and employees are accounts, vouchers or contracts when the General Assembly does not consider that to be the case for agency officers and employees.

To conclude, as the Majority does, that these payroll records are accounts, vouchers or contracts in light of paragraph (2) and include them into the definition of financial records, does, as the Majority notes in another context, render paragraph (2) “unnecessary and mere surplusage — a construction we must avoid.” See 1 Pa. C.S. § 1922(2) (presumption that “the General Assembly intends the entire statute to be effective and certain”); 1 Pa.C.S. § 1932(6) (“Statutes in pari materia shall be construed together, if possible, as one statute.”); Concerned Citizens for Better Schs. v. Brownsville Area Sch. Dist., 660 A.2d 668, 671 (Pa.Cmwlth.1995) (“[W]hen-ever possible, the courts must interpret statutes to give meaning to all of their *949words and phrases so that none are rendered mere surplusage.”).

However, while it is clear to me that these payroll records of a non-agency are not financial records, this does not mean these records are completely exempted from disclosure. It is noted that the various Commonwealth agencies are in actual possession of them. Therefore, pursuant to section 305(a) of the RTKL, these records are to be “presumed” to be “public records.” Section 305(a)®, however, limits this presumption by providing that it does not apply if the record is exempt under section 708 of the RTKL.

Section 708(b)(6)(i)(A) of the RTKL exempts from disclosure “personal financial information” which itself is defined under the RTKL section 102. Upon application of this definition it is clear that the agencies redacted “personal financial information” from the payroll records. The agencies were within their discretion to do so.

Section 506(c) of the RTKL, entitled “Agency Discretion,” permits an agency to make “any otherwise exempt record accessible” if “the agency head determines that the public interest favoring access otherwise outweighs any individual agency or public interest that may favor restriction of access.” Moreover, section 706 of the RTKL authorizes an agency to redact information from “public record” that is not “subject to access.” By redacting this personal financial information from these construed “public” payroll records the agencies in this case properly balanced the right to public disclosure with the privacy rights embodied in the RTKL regarding personal financial information.4

Even assuming for the sake of argument that the payroll records are financial records, section 708(c) of the RTKL grants agencies the discretion to redact portions of a financial record protected under various enumerated provisions of subsection 708(b) and to release the record so redacted.

Therefore, I would reverse the final determinations and orders of Open Records based upon the foregoing analysis, which interprets the RTKL consistent with its plain meaning and which includes recognition of the personal financial information exemption from disclosure. This analysis also recognizes, however, that the General Assembly did not place an airtight seal around records that contain exempted financial information. Recognizing an agency’s discretionary authority to release redacted records frees agencies to operate independently, as intended by the RTKL, and relieves this Court of the role of constant arbiter of statutory definitions. Thus, the agencies involved in these appeals did not abuse their discretion by *950redacting the certified payroll records in order to shield personal financial information.

Judge COHN JUBELIRER joins in this concurring opinion.

. I point out that Sapp Roofing is captioned as an "Opinion Announcing Judgment of the Court," which signifies that it is not binding precedent. Cimaszewski v. Pennsylvania Board of Probation and Parole, 582 Pa. 27, 868 A.2d 416 (2005).

. When Sapp Roofing was decided, the 1957 Law consisted of only four sections, 65 P.S. §§ 66.1-66.4. The 1957 Law was subsequently expanded to fourteen sections by the Act of June 29, 2002, P.L. 663.

. The Majority relies on North Hills News Record v. McCandless, 555 Pa. 51, 722 A.2d 1037 (1999), and LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001), for the proposition that Sapp Roofing has acquired "precedential force.” However, while those cases do discuss and apply Sapp Roofing, the Supreme Court did not explicitly state in North Hills or LaValle that it was adopting the plurality holding in Sapp Roofing. Compare Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992) (Supreme Court expressly stated that it was adopting its plurality decision in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987)). Moreover, both of those decisions involve the four section 1957 Law, not the new RTKL.

. The Majority notes that the agencies raised the constitutional implications of publishing personal financial information but determined not to address them. Article 1, section 1 of the Pennsylvania Constitution guarantees a right to privacy in the nature of freedom from disclosure of personal matters. Denoncourt v. State Ethics Commission, 504 Pa. 191, 470 A.2d 945 (1983). This Court has recognized constitutional privacy interests in right to know cases and balanced those privacy interests against disclosure of information. See, e.g. Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897 (Pa.Cmwlth.2006) (holding that the privacy interests of snowmobile owners in their names and addresses outweighed the public benefit of disclosure); Times Publishing Company Inc. v. Michel, 159 Pa.Cmwlth. 398, 633 A.2d 1233 (1993) (holding that the public disclosure of addresses, telephone numbers, and social security numbers would constitute an unwarranted invasion of personal privacy). In contrast to the Majority view, the analysis in this concurring opinion would bring the RTKL into harmony with the constitutional right to privacy, and thereby protect the employees in this case from an improper disclosure of their personal financial information.