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HomeMy WebLinkAbout13-6395 Supreme Co, n nsylvania COUr O C01 1n>r> o leas For Prothonotary Use Only: ? Docket No: n to CU County J �1J\J fn The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S ® Complaint 0 Writ of Summons x� Petition Transfer from Another Jurisdiction 1-71 Declaration of Taking E C Lead Plaintiffs Name: Lead Defendant's Name: BOROUGH OF LEMOYNE PA OFFICE OF OPEN RECORDS T Dollar Amount Requested: ®within arbitration limits I I Are money damages requested? ®Yes El No (check one) r—li outside arbitration limits 0 N Is this a Class Action Suit? Yes J No Is this an MDJAppeal? 13 Yes M No I A Name of Plaintiff/Appellant's Attorney: Michael J. Cassidy, Esquire F 13 Check here if you have no attorney(are a Self-Represented [Pro Sel Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. i TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS © Intentional 0 Buyer Plaintiff Administrative Agencies © Malicious Prosecution 0 Debt Collection:Credit Card ® Board of Assessment © Motor Vehicle ®Debt Collection:Other ® Board of Elections ®Nuisance [3 Dept.of Transportation ® Premises Liability 0 Statutory Appeal:Other S [3 Product Liability(does not include E mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C ® Other: M Employment Dispute:Other ® Zoning Board T El Other: Office of Oren ' I 0 Other: ReCnrc3S O MASS TORT 0 Asbestos N ® Tobacco ® Toxic Tort-DES ® Toxic Tort-Implant REAL,PROPERTY MISCELLANEOUS ® Toxic Waste B ® Other: 0 Ejectment ® Common Law/Statutory Arbitration ® Eminent Domain/Condemnation ® Declaratory Judgment ® Ground Rent ® Mandamus n Landlord/Tenant Dispute ®Non-Domestic Relations © Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure:Commercial ®Quo Warranto j 12 Dental Eil Partition 13 Replevin Legal ® Quiet Title [3 Other: ® Medical r-li Other: i 13 Other Professional: I Updated 11112011 Ji elk \iJ� Itv( !!}Yf ": C .,a Johnson, Duffie, Stewart &Weidner Uttl ;ER #ND C 0 U N T Y By: Michael J. Cassidy 'ENNSYLVANIA I.D. No. 82164 Attorneys for Petitioner 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mjc @jdsw.com BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV NIA Petitioner � S •�� DOCKET NO. 2013 - v. CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE APPEAL FROM FINAL DETERMINATION OF PRESIDENT OF CONTENT FOR THE THE PENNSYLVANIA OFFICE OF OPEN PATRIOT-NEWS / PENNLIVE, RECORDS Respondents PETITION FOR REVIEW OF THE BOROUGH OF LEMOYNE FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS AND NOW comes Borough of Lemoyne, by and through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, appealing a final determination of the Pennsylvania Office of Open Records (Docket No.: AP 2013-1738), filing this Petition for Review pursuant to Section 1302 of the Right-to-Know Law, 65 P.S. §67.1302, and in support thereof, avers as follows: I. INTRODUCTION 1. This Petition arises out of Respondent Office of Open Records' ("OOR") issuance of a final determination on October 3, 2013, in which the OOR found that Petitioner, the Borough of Lemoyne, is required to disclose delinquent sewer account customer information under the Right-to-Know Law, 65 P.S. §§67.101, et seq. ("RTKL"). This Court should grant the 1 4 XS Borough's Petition and overturn the OOR's Determination because the requested delinquent sewer account customer information is prohibited from publication under the Fair Credit Extension Uniformity Act, 73 P.S. §§2270.1, et seq. ("FCEUA"), and therefore is not subject to disclosure under the RTKL. II. FACTUAL BACKGROUND A. The Parties. 2. Petitioner, the Borough of Lemoyne ("Borough"), is a political subdivision of the Commonwealth of Pennsylvania, with a municipal address of 510 Herman Avenue, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Borough provides wastewater treatment services to approximately 1,800 commercial and residential properties located within the municipal boundaries of the Borough of Lemoyne. 4. Respondent, OOR is an office organized within the Pennsylvania Department of Community and Economic Development pursuant to the RTKL. The OOR maintains a business address at Commonwealth Keystone Building, 400 North Street, Plaza Level, Harrisburg, Pennsylvania 17120-0225. 5. Respondent, Cate Barron, is Vice President of Content for The Patriot-News / PennLive, which maintains an office address of 2020 Technology Parkway, Suite 300, Mechanicsburg, Pennsylvania 17050 (Cate Barron and The Patriot-News / PennLive hereinafter sometimes collectively referred to as "Requester"). B. The Right-to-Know Request. 6. On August 30, 2013, Cate Barron, in her capacity as Vice President for Content for The Patriot-News / PennLive, submitted a RTKL Request to Borough. A true and correct copy of the Request is attached hereto as Exhibit A. 2 7. Respondent, Cate Barron's RTKL Request sought production of the following documents: "A listing of sewer accounts that were 90 days or more past-due as of July 31, 2013, including at minimum the name on the account, number of days past due, and the past- due balance." See, Exhibit A. 8. By letter dated September 10, 2013, the Borough of Lemoyne, by and through its Solicitor, Michael J. Cassidy, responded to Ms. Barron and advised her that the Borough would not be releasing the requested documents, as the information was prohibited from being published under The Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. ("FDCPA") and The Fair Credit Extension Uniformity Act, 73 P.S. §2270.1, et seq. ("FCEUK), and therefore requested records were not subject to disclosure under the RTKL.' A true and correct copy of Borough's response is attached hereto as Exhibit B. 9. On September 16, 2013, Ms. Barron submitted an appeal to the OOR, challenging the Borough of Lemoyne's denial of her RTKL request. A true and correct copy of Ms. Barron's appeal to the OOR is attached hereto as Exhibit C. 10. On September 17, 2013, the OOR issued an Official Notice of Ms. Barron's appeal and invited both parties to supplement the record. A true and correct copy of the OOR's Notice of Appeal is attached hereto as Exhibit D. 11. Neither the Borough nor Ms. Barron supplemented the record as the matter was pending before the OOR. The Borough of Lemoyne denied the RTKL request on the basis that the requested information was prohibited from being published under the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. ("FDCPA") and the Fair Credit Extension Uniformity Act, 73 P.S. §2270.1, et seq. ("FCEUK). As set forth more fully in this Petition for Review, the Borough of Lemoyne brings this appeal under the FCEUA only. The Borough of Lemoyne is abandoning its argument that the requested documents are prohibited from being published under the FDCPA. The FDCPA does not apply to creditors who are in the business of collecting their own debts. See, 15 U.S.C. §1692a (definitions of"creditor" and "debt collector"), and 15 U.S.C. §1982d (prohibiting debt collectors from engaging in conduct, that natural consequence of which is to harass, oppress, or abuse and person in connection with the collection of a debt). See also, Mazza v. Verizon Wash. D.C., Inc., 852 F.Supp. 2d 28 (DC Dist. Col. 2012) (holding that Fair Debt Collection Practices Act is not applicable to creditors who are in the business of collecting their own debts). The FDCPA does not apply to the Borough of Lemoyne, to the extent that the Borough of Lemoyne is a creditor collecting its own debts, and therefore the FDCPA provisions prohibiting debt collectors from publishing a list of consumers who allegedly refuse to pay debts at 15 U.S.C. §1692d(3), are inapplicable. 3 C. The OOR Issues a Final Determination that Delinquent Sewer Records are Subject to Disclosure under the RTKL. 12. On October 3, 2013, the OOR issued a Final Determination granting Ms. Barron's appeal and directing the Borough to produce documents sought in the RTKL Request. A true and correct copy of the Final Determination is attached hereto as Exhibit E. 13. In its Final Determination, the OOR determined that the FDCPA and FCEUA do not prohibit delinquent sewer account information from being disclosed in response to a RTKL Request. 14. In reaching its Final Determination that delinquent sewer account information is subject to disclosure under the RTKL, the OOR cited to and adopted the reasoning in the case of In Re: Appeal of the City of Sharon Sanitary Authority, No. 2009-3539, 2010 Pa. Dist. & Cnty. Dec. LEXIS 30 (Mercer Com. PI. Jan. 26, 2010). A copy of In re: Appeal of the City of Sharon Sanitary Authority is attached hereto as Exhibit F. 1111. OOR'S FINAL DETERMINATION MUST BE OVERTURNED BECAUSE THE OOR MISINTERPRETED AND MISAPPLIED THE CONSUMER PROTECTION PROVISIONS SET FORTH IN THE FCEUA WHICH PROHIBIT THE PUBLICATION OF THE NAMES OF CONSUMERS WHO ALLEGEDLY REFUSED TO PAY DEBTS. A. Judicial Review of OOR's Final Determination. 15. In rendering its Final Determination that the Borough is mandated to disclose the delinquent sewer account information under the RTKL, the OOR either misapplied the law or made conclusions based on assumptions not supported by facts in the record before it. 16. A reviewing court exercising its appellate jurisdiction may "independently review the OOR's Orders and may substitute its own findings of fact for that of the [OOR]." Bowling v. OOR, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), appeal granted 609 Pa. 265, 15 A.3d 427 (2011). 17. The Court's decision "shall contain findings of fact and conclusions of law based upon the evidence as a whole." 65 P.S. §67.1301(a). 4 18. The RTKL provides that the records of a commonwealth or local agency are public records unless they are exempt from disclosure under state or federal law, or protected from disclosure by privilege. 65 P.S. §67.102 (definition of"public record"). 19. Therefore, the threshold and only issue before this Court is whether the delinquent sewer account information requested by Ms. Barron and The Patriot-News / PennLive is exempt from being disclosed under any state or federal law. We humbly submit that the delinquent sewer account records requested by Ms. Barron and The Patriot-News / PennLive are not subject to disclosure under the RTKL, because the records are prohibited from being published under pertinent sections of the FCEUA. B. Reasons for Appeal. 20. Petitioner, Borough of Lemoyne, is a "local agency" subject to the RTKL. 21. Petitioner, Borough of Lemoyne, promotes transparency in all aspects of local government affairs and recognizes that the RTKL is an essential tool for enabling public oversight of and involvement in state and local government. 22. Petitioner, Borough of Lemoyne, is in favor, in principal, of releasing the requested information to the Requestor, because the ability to publish the requested information could result in higher collections on past due accounts. However, Petitioner, Borough of Lemoyne, is fearful that it could be held liable under the FCEUA, which provides for a civil penalty of up to $1,000.00 per violation or up to $3,000.00 per violation if the victim is 60 years of age or older. See, 73 P.S. §2270.5(a) (providing that violations of the FCEUA shall constitute a violation of the Unfair Trade Practices and Consumer Protection Law), and Section 8 of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-8(b). Thus, if Petitioner, Borough of Lemoyne, were to release the requested documents in response to a RTKL request, and if a court of competent jurisdiction were to later determine that the release of the listed customers holding delinquent sewer accounts was a violation of the FCEUA, the Borough of Lemoyne could face civil penalties of up to $3,000.00 for each customer name appearing in the 5 delinquent account report. Consequently, Petitioner, Borough of Lemoyne, is seeking a judicial determination of whether the requested information is subject to disclosure under the RTKL. 23. Financial records maintained by a local agency generally are a matter of public concern. Had the Requester requested a spreadsheet listing only the delinquent amounts, without linking names and addresses to those delinquent accounts, that information would have been subject to disclosure under the RTKL. However, linking names and addresses to delinquent account information, in the interest of transparency, serves no public purpose other than to publicly identify delinquent account holders, the natural consequence of which would be to harass, oppress or abuse those individuals. 24. In its Final Determination, Respondent, OOR, states: "The OOR has previously examined the applicability of FCEUA to delinquent utility information. In holding the FCEUA did not prohibit the release of delinquent sewer account information, the OOR found: 'Without explicit language requiring confidentiality, the FCEUA's scope reaches only methods and practices "with regard to the collection of debt" and prohibits harassment, oppression and abuse "in connection with the collection of a debt" as we do not view financial recordkeeping at a [public] agency to be an activity associated with debt collections, delinquent sewer accounts are not protected by FCEUA and are public record.' Anderson v. Sharon Sanitary Sewer Authority, OOR Dkt. AP2009-0502, 2009 PA O.O.R.D. LEXIS 656." See, Exhibit E, Final Determination, page 4. 25. Respondent, OOR, does not constitute a competent tribunal capable of determining the scope and applicability of consumer protection provisions under FCEUA. 6 26. In support of its Final Determination, Respondent, OOR, cites to the case of In Re: Appeal of the City of Sharon Sanitary Authority, 2010 Pa. Dist. & Cnty. DEC LEXIS 30 (Mercer Com. PI. 2010) as legal authority in support of its conclusion that release of the delinquent sewer account information would not be a violation of FCEUA. 27. The Opinion issued by The Honorable Christopher J. St. John of the Court of Common Pleas of Mercer County, Pennsylvania, in the matter of In Re: Appeal of the City of Sharon Sanitary Authority does not establish binding legal precedence throughout the Commonwealth of Pennsylvania, and therefore Petitioner, Borough of Lemoyne, cannot justifiably rely upon that Opinion as a basis for disclosing the requested delinquent sewer account records and avoiding potential liability under the FCEUA. 28. The FCEUA establishes, among other things, what are considered to be unfair or deceptive acts or practices with regard to the collection of debts. See, 73 P.S. §2270.2. 29. In terms of unfair or deceptive acts or practices, the FCEUA draws a distinction between debt collectors and creditors. 30. The FCEUA defines "debt collector" as a person not a creditor conducting business within the Commonwealth, acting on behalf of a creditor, engaging or aiding directly or indirectly in collecting a debt owed or alleged to be owed a creditor or assignee of a creditor. See, 73 P.S. §2270.3 (definition of"debt collector"). 31. With respect to unfair or deceptive acts or practices, the FCEUA provides that it shall constitute an unfair or deceptive debt collection act or practice under the Act, if a debt collector violates any of the provisions of the FDCPA. 73 P.S. §2270.4(a). Thus, the FCEUA mirrors the FDCPA, as it pertains to unfair or deceptive acts or practices by debt collectors. However, the FCEUA has a broader scope in terms of consumer protections afforded thereunder, to the extent that the FCEUA also regulates unfair or deceptive acts or practices by creditors. See,73 P.S. §2270.4(b). 7 32. The FCEUA defines "creditor" as follows: "'Creditor.' A person, including agents, servants or employees conducting business under the name of a creditor and within this Commonwealth, to whom a debt is owed or alleged to be owed." 73 P.S. §2270.3 (definition of"creditor"). 33. Petitioner, Borough of Lemoyne, is a "creditor" subject to the FCEUA to the extent that the Borough is owed a debt by its customers for sewage treatment services. 34. The FCEUA defines "debt" to be an actual or alleged past due obligation, claim, demand, note or other similar liability of a consumer to pay money, arising out of a single account as a result of a purchase of services. The term also includes any amount owed as a tax to any political subdivision of the Commonwealth of Pennsylvania, including an assessment, any interest, penalty, fee or other amount permitted by law to be collected. See, 73 P.S. §2270.3 (definition of"debt"). 35. With respect to unfair or deceptive acts or practices by creditors, the FCEUA provides the following: "(b) BY CREDITORS. — — With respect to debt collection activities of creditors in this Commonwealth, it shall constitute an unfair or deceptive debt collection act or practice under the Act if a creditor violates any of the following provisions: (4) A creditor may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph: 8 (iii) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of Section 1681 a(f) or 1681b(a)(3) of the Fair Credit Reporting Act (Public Law 91-508, 15 U.S.C. §1681, et seq.). 73 P.S. §2270.4(b). 36. The FCEUA therefore establishes a general proscription against any creditor engaging in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. However, the FCEUA establishes a specific proscription against the publication of a list of consumers who allegedly refused to pay debts. The FCEUA specifically states that the publication of a list of consumers who allegedly refuse to pay debts is a violation of the Act. 37. The FCEUA does not define the term "publication." Blacks Law Dictionary defines the term "publication" as follows: "to make public; to make known to people in general; to bring before public; to exhibit, display, disclose or reveal." Blacks Law Dictionary, 6" Edition (1990). 38. If Petitioner, Borough of Lemoyne, were to release the delinquent sewer account information requested by Requester, Cate Barron, in response to the RTKL request, it would be a "publication" in that the delinquent sewer account information, including the names and addresses of account holders, would be made public, disclosed or revealed to a third party. Thus, the act of publishing the list of delinquent sewer account information to the Requester in response to a RTKL request would be a violation of the FCEUA. See, 73 P.S. §2270.4(b)(4)(iii). 39. The argument that delinquent sewer account information may be disclosed in response to a RTKL request because the information is not being disclosed directly in connection with the collection of a debt lacks merit. The FCEUA should not be so narrowly construed so as to only regulate creditor behavior when the creditor is actively engaged in the 9 process of collecting a debt. Given that the FCEUA is a consumer protection law, the FCEUA should be broadly construed to protect consumers generally from being subject to any conduct, the natural consequence of which is to harass, oppress or abuse the consumer with respect to the debt. 40. For a court to hold that delinquent sewer account information is subject to disclosure under the RTKL completely eviscerates the intent of the FCEUA to protect consumers from harassment, oppression, or abuse in relation to that debt. The FCEUA does not simply prohibit creditors from engaging in conduct "with the intent" to harass, oppress or abuse a consumer with respect to a debt. Rather, the FCEUA prohibits creditors from engaging in any conduct "the natural consequence of which" is to harass, oppress or abuse a consumer with respect to the debt. Petitioner, Borough of Lemoyne, submits that the natural consequence of releasing the names, address, and amounts owed by delinquent sewer account customers to a third party in response to a RTKL request would be to harass, oppress or abuse those individuals. 41. Assuming, arguendo, that This Court disagrees that the natural consequence of releasing the names, address and amounts owed by delinquent sewer account customers to a third party in response to a RTKL request would be to harass, oppress or abuse those individuals, the FCEUA nonetheless specifically states that it is a violation of the Act to publish a list of consumers who allegedly refuse to pay debts. See, 73 P.S. §2270.4(b)(4)(iii). 42. If This Court were to adopt Respondent, OOR's reasoning that delinquent sewer account information may be disclosed in response to a RTKL request, because the information is not being disclosed directly in connection with the collection of a debt, then it logically follows that any person could submit a request to any creditor (or debt collector) seeking a list of names and addresses and debts owed by consumers, and the creditor (or debt collector) could release the information to the third party with impunity, since the information is being released for reasons other than for reasons "directly in connection with the collection of a debt. Following this logic one step further, then the only difference between the case sub judice in which a request has been submitted to a local agency, and the case of a third-party submitting a request to a private creditor or debt collector, is that a local agency would be mandated to disclose 10 consumer debt information under the RTKL, while a private creditor or debt collector would be at liberty to publish the consumer debt information without consequence. The OOR's interpretation of the FCEUA is illogical and inconsistent with the intent of the law. 43. If This Honorable Court were to determine that the requested delinquent sewer account information is subject to disclosure under the RTKL, it would enable local agencies and third parties to hide behind the veil of the RTKL protection and abuse the RTKL to justify the release of consumer debt information, which otherwise would be protected from disclosure under the FCEUA. This in turn would constitute a judicially-created exception to the FCEUA that publication of a list of consumers who allegedly refused to pay debts, is permissible, provided the creditor is a local agency publishing the information in response to a RTKL request. 44. If this Court determines that Petitioner, Borough of Lemoyne, is required to disclose the delinquent sewer account information to the Requester in response to the RTKL request, then this means a local agency also must disclose all documents maintained by the local agency relating to the collection of delinquent accounts. The consequence of any such ruling would be that the local agency would be required to disclose sensitive, or personal information or communications between the local agency and consumers related to the collection of delinquent accounts. Local agencies frequently communicate with customers regarding the collection of delinquent accounts, establishing payment plans because of personal hardships, financial problems, health issues, etc. If this Court determines that the requested delinquent sewer account information is subject to disclosure under the RTKL, then all such communications between a local agency and its customers would be subject to disclosure under the RTKL. Such a conclusion is untenable because the disclosure of the information would be a violation of trust between the local agency and its customers, and it would likely result in local agencies having difficultly managing delinquent accounts if consumers were to learn that such personal information could be made public. 45. As set forth above, in its Final Determination, the OOR misinterpreted and misapplied the consumer protection provisions set forth in the FCEUA which prohibits the publication of the names of consumers who allegedly refuse to pay debts. 11 46. The documents requested by Requester, including the names and address of customers with delinquent sewer accounts, did not fall within the definition of "public records" in the RTKL, because this information is prohibited from disclosure under the FCEUA. See, 65 P.S. §67.102 (definition of"public record"). 47. As such, this court should grant Borough of Lemoyne's Petition and rule that the requested documents are not a "public record" and therefore not subject to disclosure under the RTKL. WHEREFORE, Borough of Lemoyne respectfully requests that this Court issue an Order granting Borough of Lemoyne's Petition, finding that delinquent sewer account information, including the names and addresses of delinquent account holders, are prohibited from being published under the FCEUA, and therefore are not subject to disclosure under the RTKL, overturning the OOR's Final Determination, denying Ms. Barron's requests, and awarding Borough of Lemoyne all their such relief as This Court deems just and proper. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. By:, Michael J. Cassidy Counsel for Petitioner, Borough of Lemoyne DATE: October 29, 2013 :585751 12 VERIFICATION I, Kathryn A. Morrow, Secretary and Right-to-Know Officer of Borough of Lemoyne, the Petitioner in the foregoing Petition for Review, as such I am authorized to make this Affidavit on Petitioner's behalf and have knowledge of the facts set forth in the foregoing and that said facts are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification authorities. Kathryn A. Mo row 13 CERTIFICATE OF SERVICE AND NOW, this 29th day of October, 2013, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the following persons by depositing in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Cate Barron, Vice President, Content Pennsylvania Media Group 2020 Technology Parkway, Suite 300 Mechanicsburg, PA 17050 JOHNSON, DUFFIE, STEWART&WEIDNER, P.C. C By. 6--L,-) Michael J. Cassidy Attorney ID No. 82164 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 14 Exhibit q PENN M)e patriot News L I V E PA M E,0 1 A G R 0 H P Cate Barron ebarron@pennlive.com Editor 717-255-8165 Kathryn A.Morrow Borough Secretary/Right to Know Officer- Borough of Lemoyne 510 Herman Avenue Lemoyne,Pa. 17043 30 August 2013 Ms. Morrow: I.am the Vice President of Content for PA Media Group,which owns and runs The Patriot-News and PennLive.com,both of which cover-Lemoyne Borough through our correspondent Allison Dougherty. Given the increased demands on local municipal sewer systems to meet Chesapeake Bay mandates,the public finances of local municipal sewer authorities are increasingly important; including past-due accounts of such authorities. Under-the Pennsylvania Right To Know Law,we request the following document(s): A listing of sewer accounts that were 90 days or-more past-due as of July 31,2013, including at minimum the name on the account,number of days past due and the past-due balance. We would like copies of these records,either-paper or in digital format if it exists. These records are financial records of a local agency subject to the RTY-L,akin to delinquent tax records. We understand that sewer authorities have been hesitant to release such information under the RTKL for fear, doing so might run afoul of consumer protection laws prohibiting the publication of individuals'personal financial infonnation.This issue has gone before the Pennsylvania Office of Open Records on several occasions, in all of which the OOR has ruled in favor of releasing the records.In 2010,The City of Sharon Sanitary Authority appealed an OOR ruling specific to the past-due accounts of a sewer authority to the Mercer County Court of Common Pleas,where Judge Christopher J. St.John considered the issue and ruled in favor of the release of the records(opinion attached). ia�lc'ou ur consideration, Ca e r n Vice President,Content Pulitzen,Prize for Local RepoFting 2012 Pennsylvania News paper of the Yoar 2005, 2006, 2007, 2010, 2012 2020 Technology Parkway Suite 300, Mechanicsburg PA 17050-Main:255-8100 www;pennlive.com Exhibit 13 JERRY R.DUFFIE BAFnE B. GEHRLEIN RICHARD W. STEWART ANTHONY I LUCIDO EDMUND G.MYERS L A W 0 F F I C E S CAROLYN B.MCCLAIN DAVID W.DELUCE SON JOHN A.LUCY JOHN A.STATLER ULYSSES S.WILSON JEFFREY B.RETTIG JULIA A.MORRISON MARK C.DUFFIE DU FFIE MATTHEW RIDLEY JOHN R.NINOSKY MICHAEL J. CASSIDY OF COUNSEL MELISSA P.GREEVY HORACE A.JOHNSON WADE D.MANLEY C.ROY WEIDNER,JR. September 10, 2013 Cate Barron, Vice President, Content % Pennsylvania Media Group r 2020 Technology Parkway, Suite 300 Mechanicsburg, PA 17050 Re: Right-to-Know Request/ Lemoyne Borough - Delinquent Account Information Dear Ms. Barron: I write this letter in my capacity as Solicitor for the Borough of Lemoyne, Cumberland County, Pennsylvania. Please allow this letter to serve as a formal response to the Right-to-Know Request you submitted to Lemoyne Borough via letter dated August 30, 2013 requesting the following documents: A listing of sewer accounts that were 90 days or more past due as of July 31, 2013, including at minimum the name on the account., number of days past due and the past-due balance. Please be advised that Lemoyne Borough is denying your request for the above-referenced documents. Following careful review, Lemoyne Borough has determined that the requested documents are not a public record subject to disclosure under the Pennsylvania Right-to-Know Law in that the requested documents are exempt from disclosure under the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq., and the Pennsylvania Fair Credit Extension Uniformity Act, 73 Pa. §2270.1, et seq. We acknowledge that The Honorable Christopher J. St. John issued an opinion in the matter of In re: Appeal of the City of Sharon Sanitary Authority v. Office of Open Records, et al., 10 Pa. D. & C. 5th 353 (Mercer Co. 2010), finding that delinquent customer sewer account records maintained by a municipal authority are subject to disclosure under the Pennsylvania Right-to-Know Law. However, it is important to note that the aforementioned case does not establish legal precedence throughout the Commonwealth of Pennsylvania. Additionally, we believe Judge St. John's reasoning is flawed, in that both the plain language and intent of the Fair Debt Collection 301 MARKET STREET P.O.BOX 109 LEMOYNE,PENNSYLVANIA 17043-0109 1A WiI.JDSW.COM 717.761.4540 FAX: 717.761.3015 MAIL @JDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. Cate Barron, Vice President, Content September 10, 2013 Page 2 Practices Act and the Pennsylvania Fair Credit Extension Uniformity Act prohibits the publication of delinquent consumer account information. Lemoyne Borough understands and appreciates that the Pennsylvania Right-to-Know Law is intended to promote transparency in government operations. However, in this instance, we believe the need to protect the confidentiality of consumer account information far outweighs any inference that these records are subject to disclosure under the Pennsylvania Right-to-Know Law. If you wish to discuss this matter further, please contact me via cell phone at 717-608-1689. Very truly yours, JOHNSON, DUFFIE, STEWART & WEIDNER Michael J. Cassidy MJC:bf:579165 cc Kathryn A. Morrow, Right-to-Know Officer Robert Ihlein, Borough Manager .sue Exhibit c pennsyLvania RECEIVED OFFICE.OF OPEN REC.ORUS RIGUT TO KNOW LAW.APPEAL SEP 16 2013 DENIAL OR PARTIAL DENIAL OFFICE OF OPEN RECORDS Oftee of Open Records Commonwealth Keystone Building 400 North Street,,4t Floor Harrisburg,PA 17120-0225 16 September 2013 Fax: (717)425-5343 E—mail:o enrecof.ds c oa.gov Today's date: Requesters name Cate Barron,The Patriot-News/PennLive Address/City/Statelzip: ec no ogy HarKway,S I L MO, Mec5anicsburg, PA 1105.0 Request submitted by: ❑ Fax ❑ Mait 16 E-mail ❑ In-Person (Please check one) Date,of Right to Know request. 30 August 2013 Jute of Agency Respponse: 10 September 2013 Telephone and fax number, 71 " / -8456 T;.mail: dgii6land @pens ive.com Name and address of Agency; Borough of Lemoyne, 510 Herman Ave., Lemoyne, PA 17043 E-mail Address of Agency kmorrow emoynepaxom Fax of Agency - Name.and title of person who denied my'reguest: Michael J.ivass idy, Borough Solid or I submitted a. request for records to the agency named above: The agency ettlie. denied or partially denied my request. I am appealing that denial to the Office of Open Records (OOR), and I am providing the following hil'orniat on; I was denied access to the following records (attach additional pages if necessary): listing of sewer accounts 90 days or more past due,with name,,amount.&days past due The requested records are public records because(check all that apply)(REQUIRED): e the records document the receipt or use of agency funds e. the records are in the possession; custody or control of the agency and are. not subject to the exemptions cited by the agency. El Other Access to records has been litigated;judge ruled for release The agency denied my request and I believe the denial was incorrect because(address EACH reason the agency gives for denying your request,attach•additional pages if necessary)(REQUIRED): The agency denies release claiming they are exempt from disclosure under the Fair Debt Collection Practices Act, 15.U.S.C. §1692,et seq. and the Pennsylvania Fair Credit Extension Uniformity Act,73 Pa. §2270.1, at seq.Agency acknowledges 2010 ruling by Mercer County Judge.Christopher J.,St.John In:re: Appeal of the City of Sharon Sanitary Authority v.Office of Open Flecords, et al., 10 Pa D. &C.5th 353, upholding OOR ruling for release, but says opinion does not establish preced:mt and is flawed. el I have attached a copy of my request for records.(REOUIRED) d I have attached a copy of all responses fiom the agency regardinf,, my request. (REQUIRED) ❑ I have attached any letters or notice tending the agency's tim( to respond to my request. Respectfully Submitte (must be signed) 5'ott should rovide the a enc with a copy this form and.an. docrtmcnts ou submit to the OOR. exhibit D � pennsyLvania OFFICE OF OPEN RECORDS September 17,2013 Via E-Mail only.: Via E-Mail only-. Cate Barron Kathryn A.Morrow Vice-President., Content Open Records Officer Pennsylvania Media Group Borough of Lemoyne 202 Technology Parkway, Suite 300 510 Herman Avenue Mechanicsburg,PA 17050 Lemoyne,PA 17043 ebarron@pennlive,c.om kmorrowglemoynepa.,co dgililaftdgpennlive.com RE- OFFICIAL NOTICE OF APPEAL-DOCKET W AP2013-173 8 Dear Parties: Please review this information carefully as it affects your legal rights. The Office of Open Records ("OOR'?) received this appeal under the Right-to- Know Law, 65 P.S. §-§ 67.101., etsaq. (", RTKL")on September 16.2013 The process to follow in submitting information to the OOR is attached. A binding Final Determination will be issued.M' 36 calendar days as set forth in the RTKL. The Supreme Court of Pennsylvania has held that an agency is permitted to assert exemptions on appeal, even if the Agency did not -assert them when the request was originally denied, Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013). Accordingly, the agency may supplement its response within the time frame set forth below. You may submit information and legal:argument to support your position-b 5:00 p.m. seven (7) business days from the. date on this letter. 'Please include the docket number above on all submissions. The law requires that your position must be supported by sufficient facts and citation to all relevant sections of the RTKLj case law,and Final Determinations of the ;OOR. Statements of fact inust be supported by an affidavit�ihade under penalty of perjury by a person with actual knowledge. -An affidavit is required to demonstrate nonexistence of.records.Blank sample affidavits are available on our website, Commonwealth Keystone building I 400 North Street-4th Floor I Harrisburg,PA 17120-0225 1 717.346.99031 F 71'7:425:53431 http-.,//openrecords.state.pa.us The agency has the burden of proving that records are not subject to public. access. Any written information you provide to OOR must be provided to all parties. Agency Must Notify Third Parties:If records concern or pertain to ari employee of the agency;constitute confidential or proprietary or trademarked records of a person or business entity ; or are held by a contractor or-vendor, the agency must notify such parties of this appeal immediately and provide proof of that notice to the OOR within 7 business days. Such notice must be made by 1)providing a copy of all documents included with this letter; and 2) advising that interested persons-may request to participate in this appeal,(see 65 P.S.§67.1101(c)). The Commonwealth Court has held that "the burden '[is] on third-party contractors ... to prove by a preponderance of the evidence that the [requested] records are exempt." .See Allegheny:County Dept ofAdmin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1042 (Pa. Commw. Ct. -2011). Failure to participate in an appeal before the OOR may be construed as a waiver of objections regarding release of the requested records. Law Enforcement Records of Local Agencies: District Attorneys are required to appoint appeals officers to hear appeals regarding access to criminal investigative records in possession:of a local agency. if records were denied in part upon that basis, requester may consider filing a concurrent appeal with the District Attorney of the County where the agency is located if the records were denied, in part, because they are criminal investigative records of a local agency. If you have questions, contact the assigned Appeals Officer in writing and copy the other party. Respectfully, Terry chle Executive Director Enclosures: Assigned Appeals Officer contact information Entire appeal as filed with OOR I i i i I i pennsytvania OFFiCE OF OPEN RECORDS APPEALS OFFICER: Kyle Applegate,Esquire CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building .400 North Street,4"Floor Harrisburg,PA 17120-0225 PHONE: (717)346-9903 FACSIMILE: (717)425-5343 E-MAIL: kyapplegat @pa.gov Preferred method of contact and submission of information: EMAIL Please,direct submissions and correspondence related to this appeal to the above Appeals Officer. Please include the case name and docket number on all submissions. You must copy-the other party on everything you submit to the OOR. The OOR website, http://o.peiirecords.state.pa.us, is searchable and both parties are encouraged to review prior final determinations involving similar records and fees that may impact this appeal. Exhibit E pennsyLvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF CATE BARRON AND THF, PA TRIO T-NE W S IP E NN L I V E, Complainant V. Docket No.: AP 2013-1738 BOROUGH OF LEMOYNE, Respondent INTRODUCTION Cate Barron, Vice President of Content for The Patriot-News/PennLive ("Requester"), submitted a request ("Request") to the Borough of Lemoyne ("Borough") pursuant to the Right- to-Know Law, 65 P.S. §§ 67.101 et seq., ("RTKL"), seeking a list of delinquent sewer accounts. The Borough did not respond to the Request, and Requester appealed to the Office of Open Records ("OOR"). For the reasons set forth in this Final Determination, the appeal is granted and the Borough is required to take further action as directed. FACTUAL BACKGROUND On August 30, 2013, the Request was filed, seeking "[a] listing of sewer accounts that were 90 days or more past-due as of July 31, 2013, including at minimum the name on the account, number of days past due and the past-due balance." The Borough did not respond within five (5) business days of receiving the Request, and the Request was, therefore, deemed 1 denied. See 65 P.S. § 67.901. On September 10, 2013, the Borough purported to deny the Request, arguing that the records are confidential pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), and the Fair Credit Extension Uniformity Act, 73 P.S. §§ 2270.1 et seq. ("FCEUA"). On September 16, 2013, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record, and directed the Borough to notify any third parties of their ability to participate in the appeal pursuant to 65 P.S. § 67.1101(c). Neither party made a submission on appeal. LEGAL ANALYSIS "The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government." SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is "designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling v. UDR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff'd No. 20 MAP 2011, 2013 Pa. LEXIS 1800 (Pa. Aug. 20,2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required "to review all information filed relating to the request" and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue, 65 P.S. § 67,1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non-appealable. Id.; Giurintano v. Dep't of Gen. Servs., 20 A.3d 613, 617 (Pa. 2 Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The Borough is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege,judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such proof as leads the fact-finder ... to find that the existence of a contested fact is more probable than its nonexistence." Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)), Section 102 of the RTKL exempts from the definition of "public record" any record "exempt from being disclosed under any other Federal or State Law or regulation or judicial order or decree." 65 P.S. § 67.102. In the present appeal,the Borough argues that the requested records are exempt from being disclosed pursuant to FDCPA and FCEUA. The relevant section of FCEUA states that: 3 ... ..._-"... .I - - - .. . - --__..-........._._. __. ... i (4)A creditor may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph.... (iii) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681 a(1) or 1681 b(a)(3) of the i Fair Credit Reporting Act(Public Law 91-508, 15 U.S.C. § 1681 et seq). 73 P.S. § 2270.4(b)(4)(iii). FCEUA mirrors FDCPA, which contains the same language. See 15 U.S.C. § 1692d(3). Th:e OOR has previously examined the applicability of FCEUA to delinquent utility information. In holding that FCEUA did not prohibit the release of delinquent sewer account information,the OOR found: Without explicit language requiring confidentiality, the FCEUA's scope reaches only methods and practices "with regard to the collection of debt" and prohibits harassment, oppression and abuse "in connection with the collection of a debt." As we do not view financial record-keeping at a [public] agency to be an activity associated with debt collection, delinquent sewer accounts are not protected by FCEUA and are public record. Anderson v, Sharon Sanitary Authority, OOR Dkt. AP 2009-0502, 2009 PA O.O.R.D. LEXIS 656. The OOR's final order in Anderson was appealed to the Mercer County Court of Common Pleas, which affirmed, In re: Appeal of the City of Sharon Sanitary Authority, No. 2009-3539, 2010 Pa. Dist. & Cnty. Dec. LEXIS 30 (Mercer Com. Pl. Jan. 26, 2010). Specifically,the Court held: [T]he release of information pursuant to the [RTKL] is not in conflict with [FCEUA] which is designed to prohibit and curtail deceptive unfair debt collection practices. The Authority clearly would not be [violating either FCEUA or FDCPA] by releasing information pursuant to the public's right to access its financial records. Moreover, the fact that the information that it releases may ultimately be published by the requestor is not a factor in the foregoing analysis and may not be a reason to deny disclosure.... The release of the overdue account information by the Authority does not violate the plain language and/or the legislative intent underlying both remedial statutes. 4 Id, at *11. The OOR adopts the Court's reasoning in the present matter. Release of the requested information here would not be in connection with the Borough's efforts to collect delinquent sewer fees. Instead, release of the requested information would be pursuant to the Borough's obligation under the RTKL to provide access to public records. See 65 P.S. § 67.302(a). Therefore, release of these records would not violate FCEUA or FDCPA. Forest Hills Volunteer Fire Company v. Borough of Forest Hills, OOR DkL AP 2013-0839, 2013 PA O.O.R.D. LEX.S 426. As no other statute or exemption has been cited by the Borough, the Borough must provide access to these records. See 65 P.S. §§ 67.305(a); 67.708(a)(1). CONCLUSION For the foregoing reasons, Requester's appeal is granted and the Borough is required to provide all responsive records to the Requester within thirty (30) days. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Cumberland County Court of Common Pleas, 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http:Hopenrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED: October 3,2013 APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to: Cate Barron(via e-mail only); Kathryn Marrow, Esq. (via e-mail only) 5 Exhibit F Page 1 Lex*1 s N ex i IN RE: APPEAL OF THE CITY OF SHARON SANITARY AUTHORITY,Peti- tioner v. OFFICE OF OPEN RECORDS and COURTNEY L.ANDERSON,Re- spondents No.2009-3539 COMMON PLEAS COURT OF MERCER COUNTY,PENNSYLVANIA 2010 Pa.Dist. & Cnty.Dec.LEXIS 30; 10 Pa.D. & C.51h 353 January 26,2010,Decided January 26,2010,Filed maintain financial records [*2] for property owners who COUNSEL: [*1] For Petitioner: William J. Madden, purchased sewer services in the City of Sharon thereaf- Esquire, Sharon,PA. ter. In addition, the Authority is mandated to collect past and future debts for such services. For Respondents: William G. McConnell. Jr., Esquire, Courtney Lynn Anderson is reporter for The Herald Sharon,PA. who attends the monthly board meetings of the Authority JUDGES: Christopher J. St.John,Judge. as part of her duties as a reporter. She has also written various articles in The Herald about the delinquent ac- OPINION BY: Christopher J. St.John counts [**355] owed to the Authority. As part of her investigative reporting, Ms. Anderson submitted a re- OPINION quest on June 3,2009 as an individual,pursuant to Penn- sylvania's Right-to-Know Lew, seeking access to Jelin- [**354] MEMORANDUM OPINION AND ORDER quent sewer accounts, including the names and addresses of those individuals who were delinquent. Obviously, ST.JOHN,J. there Is a strong likelihood that she would write follow- A sewer authority denied a request for a list of peo- up articles disclosing various information including the ple with delinquent sewer accounts. The authority names of those individuals who are delinquent, as she wanted to release the names, but its attorney was con- toss before and after the de novo hearing on her request. cerned that it would violate consumer protection laws The Authority denied her request upon the sage advice of and expose the authority I to civil damages. Release of Its solicitor. the requested information, pursuant to a court order, It is uncontested that the Authority is In favor in however, would insulate the authority from damages principal of releasing the information to Respondent be- and/or civil penalties, It is this court's holding after close cause the Authority believes that it will result in higher review of the respective statutes, that the relevant con- collections on past due accounts. [*3] It is fearful, how- sumer protection statutes are not in conflict with Penn- ever,that it will be liable under various consumer protec- sylvania's new Right-to-Know Lew. Hence, the de novo tion statutes. appeal will be DENIED and the authority will be ordered to release the requested information. The sole question presented here is whether Penn- sylvania's Right-to-Know Law, when road in conjunction The City of Sharon Sanitary Authority is a munici- with these consumer protection statutes, prohibits the pal authority created by the City of Sharon around Sep- disclosure of this delinquent account information. This is tember of 2007. Part of the Authority's function is to an issue of first impression that can only be resolved by maintain financial records ft Inherited from the City re- comparing the language in the respective statutes. Chief garding uncollected debt for prior sewer accounts, and to Page 2 2010 Pa.Dist.&Cnty.Dec.LEXIS 30, *; 10 Pa.D. & C.5th 353, ** Justice Castille aptly defined the court's rote when inter- access to public records. Accordingly, the new law cre- preting statutes as follows: ated the presumption that a"record"possessed by a local agency "shall be presumed to be a public record"Id. at§ The object of statutory interpretation is 67.305(a). The legislature, however, provided that this to determine the intent of the General As- presumption is removed If the record is exempt under sembly." Pa. Oep't of Transp., Bureau of Section 67.708, protected by a privilege and/or is "ex- Driver Licensing v. Weaver, [590 Pa. empt from disclosure under any federal or state law or 188] 912 A.2d 259, 264 (2006) (citing 1 regulation or judicial order or decree." Id. §67.102 (See Pa.C.S. § 1921(a)). The touchstone of definition of "public record.") The legislature also im- statutory interpretation is that where a posed the burden of proving that a record was exempt statute is unambiguous, the [**356] ju- upon the government agency.Id.§§67.708(a)(1). ' diciary may not Ignore the plain language "under the pretext of pursuing its spirit," 1 1 It is uncontested that the Authority is an Pa.C.S. § 1921(b), for the language of a "agency" and that the information sought Is a "re- statute is the best indication of legislative cord" and a"financial record'as at of those learns intent. Weaver, 912 A.2d at 264. Words are defined in Section 67.102. end phrases should be construed in accor- The solicitor for the Authority posits that the list of dance with their common and approved past due account holders is exempt from disclosure under usage. I Pa.C.S. § 1903(a). When the part of the definition of a "public record." A public re- words of a statute are clear, there is no cord is defined as follows: need to look [*4] beyond the plain mean- ing of a statute. See. e.g.. Commonwealth Public [*6] record. A record, including v, McClintic, 589 Pa. 465, 909 A.2d 1241,1245 (2006) (citing Sternlicht v. a financial record, of a Commonwealth or Sternlicht, 583 Pa. 149, 876 A.2d 904, local agency that: (1) is not exempt under 909 (2005) and Ramich v. Workers' Section 708; (2) is not exempt from be- Comp. Appealed. (ScnatZ Elec. Inc.), 564 ing disclosed under any other federal or Pa. 656, 770 A.2d 318, 322 (2001)). If a state law or regulation or judicial order or statute is deemed ambiguous, however, decree; or (3) is not protected by a privi- resort to principles of statutory construc- lege tion is appropriate. 1 Pa.C.S. § 1921(c); Commonwealth v. Packer, 568 Pa. 481, id. at§67.102(emphasis added).Notably,Section 708 of 798 A.2d 192, 198(2002). the Act not only imposes the burden upon the Authority to prove by a preponderance of the evidence that a record Colville v. Allegheny County Retirement Board, 592 Pa. is exempt from public access, [**358] but it also con- 433, 926 A.2d 424. 430-31 (Pa. 2007) (emphasis added); tains a very extensive list of exemptions. Id. at § quoted with approval in Com, v. Cox, 603 Pa. 223, 983 67.708(a) through (b). Nonetheless, the Authority does A.2d 666. 703 (Pa. 2009). not argue that any of these well-defined exemptions pre- vent disclosure in this case. Instead, it argues that these Moreover, the court must construe every statute. "If records cannot be disclosed because they do not fall un- possible, to give effect to all of its provisions." I Pa.C.S. der the definition for a public record because they are § 1921(a). Sterling Acceptance Co. v. Grimes, 194 Pa. already exempt from disclosure under federal and state Super. 503, 168 A.2d 600 (Pa.Super. 1961). Thus, the law.- In reviewing the new Right-to-Know Law it is court's initial task is to compare and review the relevant noteworthy that the legislature did not specifically list portions of Pennsylvania's Right-to-Know Law with the the statutes referred to by the Authority under the Section consumer protection statutes to see if there is any ambi- 67.708 exemptions where it listed in great detail some of guity and/or if they can be interpreted in pari materia. the other circumstances where records were not: to be Access to public records in Pennsylvania was previ- disclosed. This, of course, creates [*7] the inference that ously governed by a law that was enacted In 1957. 65 the legislature had not intended that the consumer protec- PS. §§661 through 664(Purdon's [*5] 2000).This raw tion statutes referred to by the Authority prevent disclo- was substantially revamped by the new "Right-to-know sure under the Right-to-Know Law. Furthermore, in re- [ 357] Law which became effective February 14, viewing the consumer protection statutes it is important 2008, 65 P.S. §§ 67.101 et seq. (Purdon's Supp. 2009). to view those statutes in light of their stated legislative The goal of the new law was to expand and streamline intent, and the presumption of disclosure in the Right-to- Know Law as well as its prohibition that the intended use Page 3 2010 Pa.Dist.&Cnty.Dec.LEXIS 30, *; 10 Pa.D. &C.5th 353, ** of the public record is generally irrelevant. Id. at §§ lished. These statutes were enacted to protect two sepa- 67.305(a) and 67.302(b). Thus, the Authority cannot rate and distinct interests. First, the consumer from un- generally deny access to a record even if they know that fair, deceptive and/or abusive debt collection practices. the requestor will do something with the information that Secondly, the public's right to access information about the Authority could not itself do, such as in this situation. the financial records of local agencies. Similarly, the The applicable consumer protection statutes are the Commonwealth of Pennsylvania enacted the FCEUA to following debt collection statutes: declare what constitutes "unfair methods of competition and unfair or deceptive acts or practices with regard 1:0 1. The Fair Debt Collection Practices the collection of debts." 73 P.S. § 2270.2. The relevant Act(TDCPA"), 15 U.S.C. §§1692 etseq.; portions according to the Authority of Pennsylvania's and statute are as follows: 2. The Pennsylvania Fair Credit Ex- (b) By creditors. - With respect to debt tension Uniformity Act ("FCEUA"), 73 collection activities of creditors in this P.S, §22 70.1 et seq. Commonwealth, It shall constitute an un- fair or deceptive debt collection act or practice under this act if a creditor vio- [**359] The Fair Debt Collection Practices Act lates any of the following provisions: was enacted by Congress to curb abuses by debt collec- tors. 15 U.S.C. §1692(a). Thus,the FDCPA was created (3) Except as provided in paragraph to eliminate abusive debt collection practices, to prevent (1) without the prior consent of the Ion- a competitive advantage to those [*8] who were using sumer [*10] given directly to the creditor abusive collection practices, and to create state action to or the express permission of a court of protect consumers against abusive debt collection prac- competent jurisdiction or as reasonably tices, Id. at§ 1692(e). The FDCPA does not permit con- necessary to effectuate a postjudgment ju- duct by a debt collector the natural consequence of which dicial remedy, a creditor may not commu- is to harass, oppress, or abuse any person in connection nicate, in connection with the collection with a collection of a debt." Id. at§ 1692d. This section of any debt, with any person other than specifically prohibits: the consumer, his attorney, a consumer "(3)The publication of a list of consum- reporting agency if otherwise permitted ers who allegedly refused to pay debts, by law, a debt collector, the attorney of except to a consumer reporting agency or the debt collector or the attorney of the to persons meeting the requirements of creditor. Section 1681 a(f)or 168lb(3)of this title." (4)A creditor may not engage In any conduct the natural consequence of which is to harass, oppress or abuse any person The FDCPA also prohibits certain communications in connection with the collection of a by the debt collector with third parties without the con- debt. Without limiting the general appli- sent of the consumer or the express permission of the cation of the [**361] foregoing,the fol- court of competent jurisdiction," if the communication is lowing is a violation of this paragraph: "in connection with the collection of any debt" id. at § 1692c(b) (emphasis added). The clear language and In- tent of these prohibitions is to prevent abusive debt col- (iii) The publication of a lection practices. All of the prohibited acts are illegal list of consumers who al- only if done"in connection with the collection of a debt" legedly refused to pay Therefore, under a plain reading of the FDCPA, the re- debts, except to a con- lease of information by the Authority of delinquent ac- sumer reporting agency.... count holders [*9] to Respondent would be for the pur- pose of complying with the Right-to-Know Law, not for the purpose of collecting on the debt. Obviously, Con- gress was not and is not attempting to prevent the pub- lic's access to public records, even though the conse- quence may [**360] be that the information is pub- Page 4 2010 Pa.Dist. &Cnty.Dec.LEXIS 30, *; 10 Pa.D. &C.5th 353, ** FCEUA. Section 2270.4(b)(iii) and (iv)(iii) (Emphasis violate the plain language and/or the legislative intent added). underlying both remedial statutes. The court need not As in the federal statute. Pennsylvania's prohibitions therefore look beyond the plain meaning of these stat- are triggered by communication or other practices, such utes. as publishing lists of delinquent debtors, only if this ac- [**362] In conclusion,the Authority must disclose tivity is done "in connection with the collection of any the delinquent account records requested by the Respon- debt." Once again, the release of information pursuant to dent. the Right-to-Know [*11] statute is not in conflict with HENCE,THIS ORDER: Pennsylvania's consumer protection statute which is de- signed to prohibit and curt deceptive unfair debt collec- t, ORDER tion practices. The Authority clearly would not be at- tempting to subvert either the Pennsylvania or Federal AND NOW, on this 26th day of [*12] January. consumer protection statutes, nor would it in fact be vio- 2010, IT IS HEREBY ORDERED AND DECREED that lating such statutes,by releasing information pursuant to the appeal of the City of Sharon Sanitary Authority is the public's right to access its fmanciall records. More- DENIED. IT IS FURTHER ORDERED mat the City of over, the fact that the information that it releases may Sharon Sanitary Authority shall release the requested ultimately be published by the requestor is not a factor in information to the Respondent, Courtney L. Anderson, the foregoing analysis and may not be a reason to deny within thirty(30)days of the date of this Order. disclosure. BY THE COURT: Accordingly, it is the holding of this court that there /s/Christopher J. St. John,J. is no ambiguity in either the FDCPA and the FCEUA as they relate to disclosure of Information pursuant to the Christopher J. St. John,Judge Pennsylvania Right-to-Know Law. The release of the overdue account information by the Authority does not 111E PRO 7 jotio ti lit,i. X 13 NOV 15 59 CUMBERLAND CUUMo BOROUGH OF LEMOYNE PENNSYLVANIA Petitione ;000W V. IN THE COURT OF COMMON PLEAS PENNSYLVANIA OFFICE OF OPEN OF THE NINTH JUDICIAL DISTRICT RECORDS AND CATE BARRON, VICE PRESIDENT OF CONTENT FOR THE 2013-06395 CIVIL TERM PATRIOT-NEWS/PENNLIVE, Respondents APPEAL IN RE: APPEAL FROM FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS ORDER OF COURT AND NOW, this 15th day of November 2013, upon consideration of the Petition from the Borough of Lemoyne that appeals the final determination of the Pennsylvania Office of Open Records, it is hereby ORDERED that: 1. A Rule is issued upon Respondents, the Pennsylvania Office of Open Records and Cate Barron as Vice President of Content for the Patriot- News/PennLive, to show cause why the Borough of Lemoyne is not entitled to the requested relief. 2. Respondents shall file an Answer to the Petition within twenty (20) days of service of this Rule upon them. 3. Proof of service of this Rule shall be filed by Petitioner in advance of further court action. 4. In the absence of an Answer that raises disputed issues of material fact, the court may set a briefing schedule followed by a time and date for Argument on the Petition and Answer, if deemed necessary. 5. In the alternative, if the Answer raises disputed issues of material fact, the court may issue a discovery order upon request. 6. In either case, the court DIRECTS the parties to address whether the Federal Acts, raised in the Petition, or in subsequent case law, provides for immunity to the disclosurer of information based on a court order directing the release of specific information. 7. The Petition shall be decided pursuant to Pa. R.C.P. Nos. 206.5 through 206.7. Thomas A. Placey C.P.J. Distribution: Michael J. Cassidy, Esq. Xyle Applegate, Esq. c/o Pennsylvania Office of Open Records /Cate Barron Patriot-News/PennLive c V-elq ot-cu-��L TIIS/13 I[ �Z:jCrn Michael J. Cassidy Counsel for Petitioner, Borough of Lemoyne Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy I.D. No. 82164 Attorneys for Petitioner 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mjc @jdsw.com BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Petitioner DOCKET NO. 2013 - 06395 V. .� CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE APPEAL r ' ' `'l PRESIDENT OF CONTENT FOR THE Y rz PATRIOT-NEWS / PENNLIVE, r" Respondents 3> PRAECIPE -< TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly file of record the attached Certificate of Service of the Rule to Show Cause which was filed on November 15, 2013 and served on the date reflected in the attached Certificate of Service. Respectfully submitted, JOHNSON, DUFFIE, STEWART &WEIDNER, P.C. By: c_- -- - Michael J. Cassidy Counsel for Petitioner, Borough of Lemoyne :593170 Johnson, Duffie, Stewart &Weidner By: Michael J. Cassidy I.D. No. 82164 Attorneys for Petitioner 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mjc @jdsw.com BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Petitioner DOCKET NO. 2013 - 06395 V. CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE APPEAL PRESIDENT OF CONTENT FOR THE PATRIOT-NEWS/ PENNLIVE, Respondents CERTIFICATE OF SERVICE HEREBY CERTIFY that I have served a true and correct copy of the Rule to Show Cause filed with the Prothonotary of Cumberland County on November 15, 2013 upon the Respondents of record, by depositing same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on thetWj day of November, 2013, addressed to the following: Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street Plaza Level Harrisburg PA 17120-0225 Cate Barron Vice President Content Pennsylvania Media Group 2020 Technology Parkway Suite 300 Mechanicsburg PA 17050 Respectfully submitted, JOHNSON, DUFFIE, STEWART &WEIDNER, P.C. By: NAUMAN, SMITH, SHISSLER& HALL, LLP Craig J. Staudenmaier, Esquire '�� Supreme Court ID#34996 PENNSYLVANIA Joshua D. Bonn, Esquire Supreme Court ID#93967 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 e-mail: cjstaud@nssh.com jbonn @nssh.com Counsel for Cate Barron, Vice President of content for The Patriot-News/PennLive BOROUGH OF LEMOYNE, • IN THE COURT OF COMMON PLEAS Petitioner • OF CUMBERLAND COUNTY, • PENNSYLVANIA v. • • DOCKET NO. 2013-6395 CIVIL PENNSYLVANIA OFFICE OF OPEN • RECORDS and CATE BARRON, VICE : CIVIL ACTION - LAW PRESIDENT OF CONTENT OF THE PATRIOT-NEWS/PENNLIVE, • APPEAL FROM FINAL Respondents • DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN • RECORDS PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Craig J. Staudenmaier, Esquire and Joshua D. Bonn, Esquire, of Nauman, Smith, Shissler&Hall, LLP on behalf of Cate Barron, Vice President of Content of The Patriot-News/PennLive in the above-referenced proceeding. NAUMAN, SMITH, SHISSLER&HALL, LLP By: Crai' I. ':taudenmaier, Esquire Sup Court ID#34996 By: ',r 44t. A L-,. Joshua D. Bonn, Esquire Supreme Court ID#93967 200 North Third Street, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel for of Cate Barron, Vice President of Content of The Patriot-News/PennLive Date: December 2, 2013 CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Judy A. Imes, an employee of the law firm of Nauman, Smith, Shissler&Hall, LLP, hereby certify that I this day served the foregoing "Praecipe for Entry of Appearance"by depositing a copy of the same in the United States Mail, first class,postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Michael J. Cassidy, Esquire Johnson, Duffle, Stewart&Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 '.4 / ,dl.! J j1.y A. Imes Date: December 2, 2013 I�PEC -4 All ! FENNS YL VANJ Pennsylvania Office of Open Records By: Dena Lefkowitz, Esq. Supreme Court No. 52912 Charles Rees Brown, Esq. Supreme Court No. 70612 Attorneys for Office of Open Records 400 North Street, Fourth Floor Harrisburg, PA 17120 (717) 346-9903 charlebrowkpa. og_v BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Petitioner PENNSYLVANIA V. DOCKET NO. 2013-06395 PENNSYLVANIA OFFICE OF CIVIL ACTION—LAW OPEN RECORDS and CATE BARRON, VICE PRESIDENT OF APPEAL FROM CONTENT FOR THE PATRIOT NEWS/ FINAL DETERMINATION OF THE PENNLIVE, OFFICE OF OPEN RECORDS Respondents ANSWER OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS TO THE PETITION FOR REVIEW OF THE BOROUGH OF LEMOYNE FROM THE FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS AND NOW, the Pennsylvania Office of Open Records files this Answer to the Petition for Review from the Final Determination of the Pennsylvania Office of Open Records issued to Docket No. AP 2013-1738, and in support avers as follows: 1. Admitted in part, and denied in part. It is admitted that the Petition for Review arises out of a Final Determination of the Office of Open Records dated October 3, 2013 ordering the release of delinquent sewer account records in the possession of the Petitioner. The remaining portions of this averment are conclusions of law to which no response is required. 2. Admitted. The Petitioner is the Borough of Lemoyne. 3. Admitted. The Petitioner provides wastewater treatment services to properties located within the Petitioner's boundaries. 4. Admitted. The Pennsylvania Office of Open Records ("OOR") maintains offices in Harrisburg, Pennsylvania. 5. Admitted. Based on information and belief, Respondent Cate Barron is the Vice President for Content for The Patriot News/PennLive, and maintains an office in Mechanicsburg, Pennsylvania. 6. Admitted. A request for records under the Right-to-Know Law, 65 P.S. §§ 67.101 et seq. ("RTKL) was submitted to the Petitioner on or about August 30, 2013. 7. Admitted. The request sought records relating to delinquent sewer accounts. 8. Admitted. The Petitioner denied the Respondent Cate Barron's request for records on or about September 10, 2013. 9. Admitted. Respondent Cate Barron filed an appeal of the Petitioner's denial with the OOR on or about September 16, 2013. 10. Admitted. The OOR issued notice of the appeal on or about September 17, 2013, and invited the parties to supplement the record. 2 11. Admitted. Neither the Petitioner nor Respondent Cate Barron made any submissions to the OOR during the course of the appeal. 12. Admitted. The OOR issued a Final Determination on or about October 3, 2013, ordering the Petitioner to disclose the requested records to Respondent Cate Barron. 13. Admitted. The OOR's Final Determination concluded that federal law did not prohibit the disclosure of the requested records. 14. Admitted with clarification. The OOR cited as persuasive authority the Mercer County Court of Common Pleas' reasoning in In re: Appeal of the City of Sharon Sanitary Authority. By way of further clarification, the Final Determination of the OOR in this matter speaks for itself. 15. This averment is a conclusion of law to which no response is required. The findings and conclusions of the OOR speak for themselves. 16. This averment regarding the scope and standard of appellate review is a conclusion of law to which no response is required. 17. This averment regarding judicial review of OOR final determinations is a conclusion of law to which no response is required. 18. This averment regarding the status of records in the possession of a Commonwealth or local agency is a conclusion of law to which no response is required. 19. This averment regarding whether the records at issue are prohibited from disclosure under federal law is a conclusion of law to which no response is required. 20. Admitted. The Petitioner is a local agency under the RTKL. 21. This averment is a conclusion of law to which no response is required. 22. This averment is a conclusion of law to which no response is required. 3 23. This averment is a conclusion of law to which no response is required. 24. Denied. The Final Determination of the OOR speaks for itself. 25. Denied. The OOR is statutorily charged with determining whether records in the possession of a Commonwealth or local agency are public records. By way of further answer, the OOR is generally not a proper party in an appeal of one of its final determinations, see East Stroudsburg University Foundation, et al v. Office of Open Records, 995 A.2d 496 (Pa. Commw. Ct. 2010),petition for allowance of appeal denied No. 440 MAL 2010, 2011 Pa. LEXIS 622 (Pa. March 16, 2011); however, where an appeal challenges the jurisdiction of the OOR, the OOR may participate in an appeal. See Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Commw. Ct. 2013). Here, the Petitioner expressly challenges the authority of the OOR to adjudicate whether the disclosure of records in the possession of a local agency is prohibited by state law. 26. This averment is a conclusion of law to which no response is required. 27. This averment is a conclusion of law to which no response is required. 28. This averment is a conclusion of law to which no response is required. 29. This averment is a conclusion of law to which no response is required. 30. This averment is a conclusion of law to which no response is required. 31. This averment is a conclusion of law to which no response is required. 32. Denied. The Fair Credit Extension Uniformity Act("FCEUA") speaks for itself. 33. This averment is a conclusion of law to which no response is required. 34. Denied. The FCEUA speaks for itself. 35. Denied. The FCEUA speaks for itself. 36. This averment is a conclusion of law to which no response is required. 4 37. Denied. The cited publications speak for themselves. 38. This averment is a conclusion of law to which no response is required. 39. This averment is a conclusion of law to which no response is required. 40. This averment is a conclusion of law to which no response is required. 41. This averment is a conclusion of law to which no response is required. 42. This averment is a conclusion of law to which no response is required. 43. This averment is a conclusion of law to which no response is required. 44. This averment is a conclusion of law to which no response is required. 45. This averment is a conclusion of law to which no response is required. 46. This averment is a conclusion of law to which no response is required. 47. This averment is a conclusion of law to which no response is required. WHEREFORE, the OOR respectfully requests this Honorable Court deny the Petitioner's Petition for Review, and award such other relief deemed just and appropriate. Respectfully submitted D e6a Lefko q. Chief Counse Supreme Court No. 52912 Charles Rees Brown, Esq. Senior Attorney Supreme Court No. 70612 Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 (717) 346-9903 (717) 425-5343 (facsimile) Counsel for Office of Open Records 5 Verification The undersigned hereby verifies that the statements contained within the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that the statements made therein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities. Chat e Brown BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Petitioner PENNSYLVANIA V. DOCKET NO. 2013-06395 PENNSYLVANIA OFFICE OF CIVIL ACTION—LAW OPEN RECORDS and CATE BARRON, VICE PRESIDENT OF APPEAL FROM CONTENT FOR THE PATRIOT NEWS/ FINAL DETERMINATION OF THE PENNLIVE, OFFICE OF OPEN RECORDS Respondents CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to the undersigned, by first-class mail, postage pre-paid: Michael J. Cassidy, Esq. Cate Barron Johnson, Duffle, Stewart& Weidner Vice President, Content 301 Market Street Pennsylvania Media Group P.O. Box 109 2020 Technology Parkway, Suite 300 Lemoyne, PA 17043-0109 Mechanicsburg, PA 17050 Counsel for Petitioner Respondent Craig J. Staudenmaier, Esquire Nauman Smith P.O. Box 840 Harrisburg, PA 17108-0840 Counsel for Respondent e �-- Carolyn uman, Administrative Officer Date: December 3, 2013 113 NC 1 I All : ' c: NAUMAN, SMITH, SHISSLER&HALL, LLP CUMBERLAND COUN I Craig J. Staudenmaier, Esquire PENNSYLVANIA Supreme Court ID#34996 Joshua D. Bonn, Esquire Supreme Court ID#93967 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 e-mail: cjstaud @nssh.com jbonn @nssh.com Counsel for Cate Barron, Vice President of Content for The Patriot-News/PennLive BOROUGH OF LEMOYNE, : IN THE COURT OF COMMON PLEAS Petitioner • OF CUMBERLAND COUNTY, • PENNSYLVANIA • v. • DOCKET NO. 2013-6395 CIVIL • PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE : CIVIL ACTION - LAW PRESIDENT OF CONTENT OF THE PATRIOT-NEWS/PENNLIVE, • APPEAL FROM FINAL Respondents • DETERMINATION OF THE • PENNSYLVANIA OFFICE OF OPEN • RECORDS ANSWER OF CATE BARRON AND THE PATRIOT-NEWS/PENNLIVE.RESPONDENTS, TO THE PETITION FOR REVIEW OF THE BOROUGH OF LEMOYNE FROM A FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS AND NOW come, CATE BARRON, THE PATRIOT-NEWS and PENNLIVE, Respondents, and file the following Answer to the Petition for Review of the Borough of 1 Lemoyne from a Final Determination of the Pennsylvania Office of Open Records, Docket No. AP 2013-1738 entered on October 3, 2013: I. INTRODUCTION 1. Admitted in part and denied in part. It is admitted that the Borough of Lemoyne ("Borough")has filed a Petition seeking review of a Final Determination of the Office of Open Records ("OOR") dated October 3, 2013 and docketed to AP 2013-1738 and it is further admitted that the OOR's Final Determination ordered the Borough to release to the Requester, Cate Barron, Vice President Content, PA Media Group ("Barron") information regarding delinquent sewer account information. As to the remaining averments of paragraph 1,they are denied as legal conclusions. By way of further denial, it is denied that the Final Determination of the OOR should be overturned and it is further denied that the public records sought are prohibited from publication under the Fair Credit Extension Uniformity Act, 73 P.S. §§2270.1 et sec. ("FCEUA"). To the contrary, the Final Determination of the OOR should be affirmed and the Borough ordered to release the requested public records. II. FACTUAL BACKGROUND A. The Parties. 2. Admitted. 3. Upon information and belief, admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that Barron is Vice President of Content for PA Media Group which publishes both The Patriot-News and PennLive at the 2 address set forth in paragraph 5. Barron, The Patriot-News and PennLive will hereinafter be collectively referred to as"Requester"unless otherwise designated. B. The Right-to-Know Request. 6. Admitted in part and denied in part. It is admitted that on August 30, 2013, Barron submitted a request to the Borough for public records as Vice President for PA Media Group, the publisher of The Patriot-News and PennLive. By way of further answer,the request submitted by Barron was pursuant to the Right-to-Know Law("RTKL"), 65 P.S. §67.101 et seq. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that the Borough responded through its solicitor, Michael J. Cassidy to Barron's RTK request by letter dated September 10, 2013 and denied access to the public records requested by Barron. It is denied that the public records sought are prohibited from disclosure under either the Fair Debt Collection Practices Act, 15 U.S.C. §1697 et seq. or the Fair Credit Extension Uniformity Act, 73 P.S. §2270.1 et seq. ("FCEUA"). It is further denied that any reasonable interpretation of FCEUA would prohibit the disclosure of what are otherwise clearly public records as requested.' 9. Admitted. By way of further answer, the appeal submitted by Barron was timely. 10. Admitted. 'In its Petition for Review, the Borough has abandoned any argument that the documents are prohibited from release under the provisions of the Fair Debt Collection Practices Act. See Petition for Review,¶8, ftnt. 1. Therefore, Requester here has made no response to any allegations regarding the Fair Debt Collection Practices Act. 3 11. Admitted. By way of further answer, there was no need for Requester to supplement the record as the basis asserted by the Borough for denial of release of the public records requested, i.e.,prohibition under FCEUA,had no legal basis and the OOR had all of the factual information it needed to decide the appeal. C. The OOR issues a Final Determination that Delinquent Sewer Records are subject to Disclosure under the RTKL. 12. Admitted. By way of further answer, the OOR expressly determined that"release of the requested information here would not be in connection with the Borough's efforts to collect delinquent sewer fees. Instead, release of the requested information would be pursuant to the Borough's obligation under the RTKL to provide access to public records." Final Determination, 10/3/2013,p. 5. The OOR relied upon an earlier Final Det-nnination issued by it, Anderson v. Sharon Sanitary Authority, OOR Dkt. AP 2009-0502, 2009 Pa. O.O.R.D. LEXIS 656, which was appealed to the Mercer County Court of Common Pleas and affirmed by the Opinion of Judge Christopher J. St. John, In re: Appeal of the City of Sharon Sanitary Authority, 10 Pa. D&C 5th 353. 13. Admitted. The answer set forth in paragraph 12 above is herein incorporated by reference. 14. Denied as stated. The answer set forth in paragraph 12 is herein incorporated by reference. 4 III. OOR'S FINAL DETERMINATION MUST BE OVERTURNED BECAUSE THE OOR MISINTERPRETED AND MISAPPLIED THE CONSUMER PROTECTION PROVISIONS SET FORTH IN THE FCEUA WHICH PROHIBIT THE PUBLICATION OF THE NAMES OF CONSUMERS WHO ALLEGEDLY REFUSED TO PAY DEBTS. A. Judicial Review of OOR's Final Determination. 15. The averments of paragraph 15 are legal conclusions to which no response is required. Alternatively, should the Court determine a response is required, it is denied that the OOR misapplied the law or made conclusions based on assumptions unsupported by the facts. To the contrary, the OOR's decision was correct and properly analyzed the relevant provisions of FCEUA and concluded that no provision of FCEUA prohibited the release of collection of fees by the Borough for providing services through a publicly funded utility, a sewage system, and the financial records of whether the amounts charged for the providing of those services to reimburse the public's investment in such services was being properly administered and collected. There is no clearer example of a public record than the receipt or non-receipt of public monies. 16. The averments of paragraph 16 are legal conclusions to which no response is required. Alternatively, should the Court determine a response is required, it is denied that the OOR misapplied the law or made conclusions based on assumptions unsupported by the facts. There exists no basis upon which the findings of fact or conclusions of law of the OOR should be substituted for or overturned. 17. The averments of paragraph 17 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that the Court here need make any findings or fact or conclusions overturning the Final Determination of the 5 OOR below. The answers set forth in paragraphs 12 and 15 above are herein incorporated by reference. 18. The averments of paragraph 18 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that the Court here need make any findings or fact or conclusions overturning the Final Determination of the OOR below. The answers set forth in paragraphs 12 and 15 above are herein incorporated by reference. 19. The averments of paragraph 19 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that the Court here need make any findings or fact or conclusions overturning the Final Determination of the OOR below. The answers set forth in paragraphs 12 and 15 above are herein incorporated by reference. B. Reasons for Appeal. 20. Admitted. 21. Denied as stated. Although Requester does not question the Borough's commitment to good government, Requester denies that the public records sought here are prohibited from disclosure upon the sole legal basis asserted by the Borough, i.e. the FCEUA. 22. The averments of paragraph 22 are legal conclusions to which no response is required. To the extent a response may be determined to be required, they are denied, and the answers set forth in paragraphs 12 and 15 above are herein incorporated by reference. By way of further denial, it is denied that any provisions of FCEUA or of the Unfair Trade Practices and 6 Consumer Protection Law have any application to the issue of the release of the public records requested here, or that any provision of either of those two statutes prohibits the release of the public records requested here. 23. The averments of paragraph 23 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that provision of the name, address and delinquent account information is prohibited by any provisions of FCEUA or that the release of such information would harass, oppress or abuse any individual. 24. The averments of paragraph 24 are denied, as they quote the OOR's Final Determination, a quasi-judicial record, the contents of which speaks for itself. 25. The averments of paragraph 25 are legal conclusions to which no response is required. To the extent a response may be determined to be required, they are denied. The OOR is statutorily charged with and empowered to determine public record requests within the Commonwealth of Pennsylvania. The OOR routinely reviews statutes,both state and federal, asserted as barriers to public access and makes reasoned legal determinations of such allegations. The OOR had both the authority and jurisdiction to issue the Final Determination here and properly determined that the record requested were public records and should be released to Requester. 26. Denied as stated. It is admitted that the OOR, in the Final Determination at issue here,references the Mercer County Court of Common Pleas Decision in In re: Appeal of the City of Sharon Sanitary Authority, 10 Pa. D&C 5th, 353 (2010). It is denied that this is the sole basis for its Final Determination. 7 27. The averments of paragraph 27 are legal conclusions to which no response is required. To the extent a response may be determined to be required, they are denied. The Opinion of Judge St. John directly addresses the very issue raised by the Borough here and, after a thorough analysis of the same alleged prohibitions raised by the City of Sharon there as raised by Borough here, rejected such provisions as a barrier to the release of what are clearly public records of the financial transactions of a local agency concerning the failure to collect funds to support a publicly funded utility. 28. The averments of paragraph 28 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 29. The averments of paragraph 29 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 30. The averments of paragraph 30 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release 8 _ ... _. A:...Y' \'l M`4"_.. of the public records requested by Requester here. 31. The averments of paragraph 31 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 32. The averments of paragraph 32 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 33. The averments of paragraph 33 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 34. The averments of paragraph 34 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 9 35. The averments of paragraph 35 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 36. The averments of paragraph 36 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. 37. Admitted in part and denied in part. It is admitted that the FCEUA does not define the term"publication." As to the remaining averments of paragraph 37,they are legal conclusions to which no response is required. To the extent that a response may be determined to be required, they are denied. It is denied that any definition of"publication"from Black's Law Dictionary has any applicability to the issues presented here. 38. The averments of paragraph 38 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, they are denied. It is denied that providing to the Requester here financial records/public records of a local government agency documenting the non-receipt of payments owed to a public utility funded with public tax dollars would constitute a violation of any of the provisions of the FCEUA. It is further denied that any provision of the FCEUA would prohibit the disclosure of the requested 10 information by the Borough to the Requester. 39. The averments of paragraph 39 are legal conclusions to which no response is required. To the extent that a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by Requester here or that any provision of the FCEUA would prohibit release of the public records requested by Requester here. It is further denied that the release of the requested information would constitute a"publication"of information that is prohibited from disclosure by the FCEUA. By way of additional denial, the release of the information requested by Requester here is unrelated to the practices which the FCEUA attempts to control, that is, activities"in connection with the collection of any debt." Thus, the provisions cited by the Borough in support of its position that the release of this information is prohibited to the Requester here have no applicability in the face of a legitimate right-to-know request. 40. The averments of paragraph 40 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. By way of further denial, Requester here submits that the FCEUA and the RKTL can be read to co-exist and not to interfere with one another, as the FCEUA is designed to prohibit unfair practices in the collection of a debt whereas, the RTKL guarantees access to records,particularly where they involve the receipt of payments owed to fund and support a public utility administered and supported by public funds. 11 41. The averments of paragraph 41 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. By way of further denial, Requester here submits that the FCEUA and the RKTL can be read to co-exist and not to interfere with one another, as the FCEUA is designed to prohibit unfair practices in the collection of a debt whereas, the RTKL guarantees access to records,particularly where they involve the receipt of payments owed to fund and support a public utility administered and supported by public funds. 42. The averments of paragraph 42 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. By way of further denial, Requester here submits that the FCEUA and the RKTL can be read to co-exist and not to interfere with one another, as the FCEUA is designed to prohibit unfair practices in the collection of a debt whereas, the RTKL guarantees access to records, particularly where they involve the receipt of payments owed to fund and support a public utility administered and supported by public funds. The answers set forth in paragraphs 37 through 40 above are herein incorporated by reference. 12 43. The averments of paragraph 43 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. By way of further denial, Requester here submits that the FCEUA and the RKTL can be read to co-exist and not to interfere with one another, as the FCEUA is designed to prohibit unfair practices in the collection of a debt whereas,the RTKL guarantees access to records, particularly where they involve the receipt of payments owed to fund and support a public utility administered and supported by public funds. The answers set forth in paragraphs 37 through 40 above are herein incorporated by reference. 44. The averments of paragraph 44 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. It is denied that complying with the request for public records presented here would lead to the release of"all documents maintained by the local agency regarding the collection of delinquent accounts." To the contrary, the RTKL contains specific provisions outlining the test to be applied to whether a document requested is a "record"and then a"public record"as defined under 65 P.S. §67.102. Furthermore, as the Commonwealth Court has held, the fact that information released under a proper right-to-know request may lead to the discovery of information which may not otherwise be public is not a 13 proper basis to withhold release of the public records in the first place. See, Housing Authority of the City of Pittsburgh v. VanOsdol, 40 A.3d 209 (Pa. Cmwlth. 2012). 45. The averments of paragraph 45 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that any provision of the FCEUA has any applicability to the issues raised by the request for public records made by the Requester here or that any provision of the FCEUA would prohibit the release of the public records requested by Requester here. It is further denied that any provision the FCEUA provides a basis upon which to overturn the Final Determination of the OOR here. 46. The averments of paragraph 46 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that the records requested here are not public records. To the contrary, the records requested concern the collection of monies owed to a local government agency for services rendered by that agency and for the proper support of the administration of a public utility which is funded and maintained by and with public funds. 47. The averments of paragraph 47 are legal conclusions to which no response is required. To the extent a response may be determined to be required, it is denied that this Court should grant the Borough's Petition. To the contrary, the Court should affirm the findings of fact and conclusions of law of the OOR and order the release of the public records requested by Requester here. 14 WHEREFORE, Cate Barron, The Patriot-News and PennLive, Respondents, respectfully request that the Court deny the Petition for Review filed by the Borough of Lemoyne and further request that the Court order that the Borough of Lemoyne release the public records requested. NAUMAN, SMITH, SHISSLER&HALL, LLP I_!'► By: Cra 17.taudenmaier, Esquire Supr- e Court ID#34996 By: D. Bonn, Esquire jkhfrdit Supreme Court ID#93967 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717) 234-1925 Counsel for of Cate Barron, Vice President of Content of The Patriot-News/PennLive Date: December 11, 2013 15 VERIFICATION I, Cate Barron,VP Content of Pa Media Group, am authorized to make this verification on behalf of The Patriot-News Co. and PennLive, and do make the following statement subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authority,and do state that as VP Content of PA Media Group,the facts set forth in the foregoing Answer to the Petition for Review are true and correct to the best of my knowledge, information and belief. • I, Cate Barron VP Content of PA Media Group Date: December 10, 2013 • CERTIFICATE OF SERVICE AND NOW, on the date stated below, I,Judy A. Imes, an employee of the law firm of Nauman, Smith, Shissler&Hall, LLP, hereby certify that I this day served the foregoing "Answer of Cate Barron and The Patriot-newslpennlive,Respondents,To the Petition for Review of the Borough of Lemoyne from a Final Determination of the Pennsylvania Office of Open Records"by depositing a copy of the same in the United States Mail, first class,postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Michael J. Cassidy, Esquire Johnson, Duffie, Stewart&Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 t....0nuzjj J y A. Imes Date: December 11, 2013 f E tip far O TA, 271 H iI —7 Pf3 I: 31 �'�J+"��RL��' B COUNTY Johnson, Duffie, Stewart &Weidner PENNSYLVANIA By: Michael J. Cassidy I.D. No. 82164 Attorneys for Petitioner 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mjc @jdsw.com BOROUGH OF LEMOYNE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Petitioner : DOCKET NO. 2013 - 06395 v. : CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE : APPEAL FROM FINAL DETERMINATION OF PRESIDENT OF CONTENT FOR THE : THE PENNSYLVANIA OFFICE OF OPEN PATRIOT-NEWS/ PENNLIVE, : RECORDS Respondents • PETITION AND NOW comes Borough of Lemoyne, by and through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, pursuant to Rule 206.7, Pa.R.C.P. No. 206.7, seeking issuance of a Court Order establishing a briefing schedule and scheduling oral argument in the above-captioned matter, and in support thereof avers as follows: 1. Petitioner, Borough of Lemoyne, filed its Petition for Review from Final Determination of Pennsylvania Office of Open Records on October 30, 2013. 2. On November 15, 2013, This Honorable Thomas A. Placey issued a Rule to Show Cause directing Respondents Pennsylvania Office of Open Records and Cate Barron, 2 Vice President of Content for The Patriot-News/PennLive, to file an Answer to the Petition for Review within twenty (20) days of service. 3. On November 22, 2013, Petitioner Borough of Lemoyne served the Respondents of record with a copy of the aforementioned Court Order dated November 15, 2013. 4. On December 4, 2013, Respondent Pennsylvania Office of Open Records filed its Answer in the above-captioned matter. 5. On December 11, 2013, Respondent Cate Barron, Vice President of Content for The Patriot-News/PennLive, filed her Answer in the above-captioned matter. 6. Respondent Pennsylvania Office of Records and Respondent Cate Barron, Vice President of Content for The Patriot-News/PennLive, do not raise disputed issues of material fact in their respective Answers. 7. Petitioner Borough of Lemoyne submits that the Petition for Review from Final Determination of Pennsylvania Office of Open Records can be decided by This Honorable Court purely on the basis of a question of law, as no disputed issues of material fact have been raised by either Respondent in their respective Answers filed in the above-captioned matter. 8. Rule 206.7 provides that if an Answer is filed raising no disputed issues of material fact, the Court on request of the Petitioner shall decide the Petition on the Petition and Answer. See, Pa.R.C.P. No. 206.7(b). 3 9. Counsel for Respondent Pennsylvania Office of Open Records and Respondent Cate Barron, Vice President of Content for The Patriot News/PennLive have reviewed this Petition and all counsel concur herewith. WHEREFORE, the Petitioner Borough of Lemoyne respectfully requests This Honorable Court issue an Order setting a briefing schedule for Petitioner and Respondents, and schedule this matter for oral argument, for consideration by the Court prior to final disposition. Respectfully submitted, JOHNSON, DUFFIE, STEWART &WEIDNER, P.C. By: Michael J. Cassidy Counsel for Petitioner, Borough of Lemoyne DATE: January !o , 2014 :598458 4 CERTIFICATE OF SERVICE AND NOW, this C day of January, 2014, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the following persons by depositing in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Cate Barron, Vice President, Content Pennsylvania Media Group Craig Staudenmaier, Esquire Nauman Smith 200 N. Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART&WEIDNER, P.C. By: C •� Michael J. Cassidy Attorney ID No. 82164 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 5 BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Petitioner DOCKET NO. 2013 - 06395 V. CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE APPEAL FROM FINAL DETERMINAT ON OF ^, PRESIDENT OF CONTENT FOR THE THE PENNSYLVANIA OFFICE OF OeN PATRIOT-NEWS/ PENNLIVE, RECORDS ��,� ` � z m -00 z;a x Respondents cnr` N , rrz c c3 � xC3 ORDER AND NOW, this,(_J day o , 20 , it is hereby Ordered that Petitioner shall file a Brief in support of its Petition for Review within thirty (30) days from the date of this Order and contemporaneously therewith serve a copy of said Brief upon said counsel for the Respondents. Thereafter, Respondents shall have twenty (20) days from the date of service of Petitioner's Brief, in which to file Respondent's Brief in Opposition to the Petition for Relief. Respondents shall serve a copy of their respective Brief in Opposition to the Petition for Relief upon counsel for Petitioner. Thereafter, oral argument shall be scheduled for the 2yday of 2014, at a.m./p.m., in Courtroom No. Cumberland County Courthouse at One Courthouse Square, Carlisle, Pennsylvania. BY THE .IR.T=---� Thomas A.Placey Gammon Pleas Judge Distribution:"-Kyle Applegate,Esquire,Commonwealth of Pennsylvania,Office of Open Records,Commonwealth Keystone B 'ding,400 North Street Plaza Level,Harrisburg PA 17120-0225 ig Staudenmaier,Esquire,Nauman Smith,200 N.3rd St., 18th Fl.,P.O.Box 840, Harrisburg,PA 17101 ,,.,�Wichael J.Cassidy,Esquire,Johnson Duffle,P.O.Box 109, Lemoyne,PA 17043-0109 > M'C"J"'k, �/ C �/ 1 f ILEO-01 1 IF l F THE PROTHQN0..jAR"f Nth MAY 16 A1110: 52 CU PENNS+ COUNTY Y AHA BOROUGH OF LEMOYNE, Petitioner v. PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE PRESIDENT OF CONTENT FOR THE PATRIOT NEWS / PENNLIVE, Respondents County of duniberfanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-6395 CIVIL ACTION IN RE: APPEAL FROM FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS OPINION and ORDER OF COURT Placey, C.P.J., 16 May 2014. This case arose out of a request by Respondent Cate Barron (hereinafter "Barron") on behalf of The Patriot News / PennLive (hereinafter "The Patriot") under the Pennsylvania Right -to -Know Law (hereinafter "RTKL"), 65 P.S. § 67.101, et seq., requesting disclosure of customer information regarding delinquent sewer accounts. Petitioner, Lemoyne Borough (hereinafter "Lemoyne"), denied Barron's request. Barron and The Patriot appealed to Respondent, Office of Open Records (hereinafter "OOR"). OOR ordered the release of the requested records. Lemoyne appealed the Final Determination of OOR by filing a Petition for Review with this Court. Following a review of the record and briefs, and after oral argument on the matter, it is hereby determined that OOR properly ordered the release of the requested records. The requested records are subject to the RTKL and shall be released for the reasons stated in the following opinion. STATEMENT OF FACTS Lemoyne is a political subdivision of the Commonwealth of Pennsylvania located in Cumberland County. Lemoyne provides wastewater treatment services to approximately 1,800 commercial and residential properties located within the municipal boundaries. Each month, Lemoyne invoices these customers for wastewater treatment services. Each of the commercial and residential customers has their own separate billing account which tracks these invoices as well as any payments rendered for the wastewater treatment services. On 30 August 2013, Barron, in her capacity as Vice -President for The Patriot, submitted a RTKL request to Lemoyne seeking production of a listing of sewer accounts that were ninety (90) days or more past-due as of 31 July 2013. Barron sought, at a minimum, the name on the account, number of days past due, and the past-due balance. On 10 September 2013, Lemoyne, by and through its solicitor, advised Barron that Lemoyne would not be releasing the requested documents and stated that the information was prohibited from being published, and therefore not subject to disclosure, based on The Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter "FDCPA") and The Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1, et seq. (hereinafter "FCEUA"). On 16 September 2013, Barron submitted an appeal to OOR to challenge the denial of the RTKL request. OOR invited both parties to supplement the record but neither Lemoyne nor Barron exercised this option. On 3 October 2013, OOR issued a Final Determination granting Barron's appeal and directing Lemoyne to produce the documents sought in the RTKL request. OOR found the delinquent sewer account 2 information constitutes a public record. OOR determined the FDCPA and FCEUA were not applicable as the records were not being released in connection with the collection of a debt. OOR cited to a Mercer County Court of Common Pleas case, In Re: Appeal of the City of Sharon Sanitary Authority, No. 2009-3539, 2010 Pa. Dist. & Cnty. Dec. LEXIS 30 (Jan. 26 2010). On 30 October 2013, Lemoyne appealed the Final Determination by filing a Petition for Review with this Court.' All interested parties filed briefs and were represented at oral argument held on 28 March 2014. STATEMENT OF LAW The Right -to -Know Law. In 2008, the General Assembly enacted the [Right -To -Know Law], which replaced the [Right -To -Know Act] and provided for significantly broadened access to public records. Under the new law, agency records are presumed to be public records, accessible for inspection and copying by anyone requesting them, and must be made available to a requester unless they fall within specific, enumerated exceptions or are privileged. To justify a determination to deny a requester access to a requested record, the relevant government agency bears the "burden of proving ... by a preponderance of the evidence" that an exception applies. Bowling v. OOR, 75 A.3d 453, 457 (Pa. 2013) (citations omitted). A record is defined as "[i]nformation, regardless of physical form or characteristics, 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. A public record is any record which is not exempt under section 7082, not exempt from 1 Lemoyne has since agreed it is not a "debt collector" as defined by FDCPA, and Lemoyne has limited its appeal to whether the disclosure is prohibited under FCEUA. Lemoyne has also conceded that the FCEUA defines "debt" in such a way that it only applies to residential customers, and, therefore, Lemoyne agrees that, even if the FCEUA applies, the records regarding commercial customers are subject to disclosure. 2 65 P.S. § 67.708(b) contains a list of thirty (30) exceptions. None of the exceptions of Section 708 apply to the instant matter. 3 disclosure under any other Federal or State law or regulation or judicial order or decree, and not protected by a privilege. 65 P.S. § 67.102. [T]he RTKL also established a new Commonwealth agency, the Office of Open Records ... Among its many functions, the OOR provides information relating to the implementation and enforcement of the RTKL, issues advisory opinions to agencies and requesters, provides training courses to agencies and public officials, and provides informal mediation programs to resolve disputes under the RTKL. In addition, with respect to most Commonwealth agencies and local agencies, where requesters challenge denials of access, the OOR assigns appeals officers to review the challenges .... When an agency has denied access to requested records, the requester may file an appeal with the OOR ... wherein the requester "shall state the grounds upon which the requester asserts that the record is a public record ... and shall address any grounds stated by the agency for delaying or denying the request." The appeals officer may hold a hearing, but is not required to do so .... The appeals officer may admit testimony, evidence, and documents that he or she believes to be reasonably probative and relevant to an issue in dispute. The appeals officer must issue a final determination on the matter within 30 days, and provide a written explanation of the reason for the decision. However, if the appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied. The appeals officer's determination is a final order. No further administrative appeal is provided for in the RTKL .... Decisions of OOR appeals officers are reviewable upon petitions for review—to the Commonwealth Court when the matter arises from a determination made by a Commonwealth agency, or to the court of common pleas when the matter arises from a determination made by a local agency .... [T]he RTKL requires both the Commonwealth Court and the courts of common pleas to render decisions that "contain findings of fact and conclusions of law based upon the evidence as a whole. [Such] decision[s] shall clearly and concisely explain the rationale for the decision." When review is sought in court, the RTKL specifies that "[t]he record before a court shall consist of the request, the agency's response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer." Bowling, 75 A.3d at 457-58 (citations omitted). 4 The Fair Credit Extension Uniformity Act. The FCEUA was enacted to establish what shall be considered unfair or deceptive acts or practices with regard to collection of debts. See 73 P.S. § 2270.2. Under the FCEUA, a creditor is defined as a person, including agents, servants, or employees conducting business under the name of a creditor, to whom a debt is owed or alleged to be owed. A debt is defined as an actual or alleged past due obligation or other similar liability of a consumer to pay money, arising out of a single account as a result of a purchase, lease, or loan of goods, services, or property for personal, family or household purposes. A debt collector is defined as someone acting on behalf of a creditor and engaging or aiding directly or indirectly in collecting a debt owed or alleged to be owed. 73 P.S. § 2270.3. The FCEUA sets forth what shall constitute an unfair or deceptive collection act or practice by a creditor. See 73 P.S. § 2270.4. Specifically, 73.P.S. § 2270.4(b) states that: With respect to debt collection activities of creditors in this Commonwealth, it shall constitute an unfair or deceptive debt collection act or practice under this act if a creditor violates any of the following provisions: (4) A creditor may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph: (iii) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirement of section 1681a(f) or 1681b(a)(3) of the Fair Credit Reporting Act .... Standard and scope of review. The standard of review of a decision of OOR is de novo, and the scope of review is broad or plenary. Bowling, 75 A.3d at 477. When 5 hearing an appeal from OOR under RTKL, the reviewing court is free to make its own findings of fact or adopt OOR's findings of fact. See Bowling v. OOR, 990 A.2d 813, 818 (Pa. Cmwlth. 2010); Bowling, 75 A.3d at 477. But, as noted above, the reviewing court's decision must contain findings of fact and conclusions of law based upon the evidence as a whole; the opinion also shall clearly and concisely explain the rationale for the decision. 65 P.S. § 67.1301(a). DISCUSSION The question presented for review is whether, as Lemoyne alleges, the FCEUA exempts from disclosure a list of names and account information for delinquent residential customers of a public sewer authority. The parties agree that Lemoyne is a local agency subject to RTKL. Furthermore, the requested documents are records as defined by RTKL. The requested records are subject to disclosure as public records unless one of the exemptions applies. Here, the determination as to whether the records are public records hinges on applicability of the FCEUA. Lemoyne provides wastewater treatment services to a multitude of properties and bills each customer for these services. Thus, Lemoyne meets the definition of a creditor under the FCEUA with regard to each customer who owes a past due obligation for such services. Each of the residential customer3 sewer accounts which has an actual or alleged past due balance for the services rendered constitutes a debt under the FCEUA. Therefore, under the FCEUA, Lemoyne is prohibited from engaging in any 3 As noted previously, the FCEUA defines "debt" to be specifically for obligations arising out of a purchase, lease, or loan of goods, services, or property for personal, family, or household purposes. Therefore, commercial accounts with past due obligations as the wastewater treatment services would not fall under a purpose included in the FCEUA and are not covered debts. 6 conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of these delinquent sewer accounts. The plain language of the FCEUA does not offer much guidance as to how to apply this prohibition, besides the listing of acts which constitute violations. However, the list itself is somewhat illustrative. 73 P.S. § 2270.4(b)(4) prohibits, inter alis, using or threatening violence or other criminal means, using obscene or profane language, advertising the sale of a debt to coerce payment of the debt, and publishing of a list of debtors. The prohibitions are meant to deter practices which, in and of themselves, are abusive and intended to improperly force the consumer to pay off the debt. Therefore, it is clear that the language "in connection with the collection of a debt" means creditors cannot engage in behavior which will serve to harass, oppress, or abuse said person because of or in relation to a debt owed or allegedly owed.4 In other words, creditors cannot engage in debt collection activities that effectively force a debtor to make good on a debt in order to avoid harassment, oppression, or abuse. Again, the FCEUA does not define "debt collection" but there is some guidance by examining the definition of a debt collector. A debt collector is defined as someone acting on behalf of a creditor and engaging or aiding directly or indirectly in collecting a debt owed or alleged to be owed.5 73 P.S. § 2270.3. In extrapolating this definition, it is 4 Furthermore, 73 P.S. § 2270.4(b) states "With respect to debt collection activities of creditors within this Commonwealth," and goes on to describe what will be considered an unfair or deceptive debt collection act or practice. This further clarifies that the FCEUA is only intended to regulate activities in regards to debt collection. Logic bolsters this determination; as the FCEUA is intended to protect debtors from unfair or deceptive collections practices, it is clear the language of § 2270.4(b) requires that the action be a debt collection practice or act in order for the FCEUA to apply. 5 It is noted that The Patriot is likely to publish some or all of the requested records. If the debt were owed to The Patriot or if The Patriot were a debt collector, this publication may be prohibited. However, although The Patriot's actions may, in fact, result in customers paying their delinquent sewer accounts to 7 fair to say that the debt collection occurs when someone engages or aids directly or indirectly in collecting a debt owed or alleged to be owed. By this logic, Lemoyne is prohibited from taking improper actions to directly or indirectly collect on the delinquent sewer accounts. Here, the "action" at issue is the release of documents pursuant to a RTKL request. The release of the records is merely Lemoyne responding to the RTKL request and is not a debt collection action. Lemoyne is not seeking to release the records and, therefore, cannot be seeking to directly or indirectly take an action for the collection of the debt. In fact, Lemoyne is not taking any action "in connection with the collection of a debt" but is simply responding to a valid RTKL request. The FCEUA is not intended to provide blanket protections to debtors but, rather, is intended to protect them from oppression by the creditor. Responding to a valid RTKL request cannot be construed as oppression or harassment of a debtor. Further, Lemoyne has no control over the use of the records once disclosed, and any expected uses of said records cannot be used to prevent disclosure. As a creditor, Lemoyne itself is prohibited from publishing the information regarding the delinquent sewer accounts in an attempt to force consumers to pay their debts. This would be an unfair debt collection practice that only benefits the debt collector or creditor. However, the publication of the information by The Patriot or any other news source is a different matter entirely; by virtue of finding the information worthy of publication, it is likely that the information is of interest to the public and is capable of being used for the greater avoid having their name in the newspaper, this does not make the records exempt from disclosure. While The Patriot would be engaging in actions that could indirectly aid in collecting a debt, The Patriot is not acting "on behalf" of Lemoyne. There is no principal -agent relationship, and The Patriot is not a debt collector acting on behalf of Lemoyne. 8 public good beyond mandated governmental transparency. Public disclosure allows for inspection and correction of errors, detection and prosecution of waste or fraud, and fosters competition and cooperation amongst municipalities. Based on the determination that the requested documents are public records and subject to disclosure under RTKL, the issue now morphs into a determination of what specific information is to be disclosed. Barron and The Patriot requested a list of the sewer accounts that were ninety (90) days or more past due as of 31 July 2013; the requesters, at a minimum, desired the name on the account, number of days past due, and the past due balance. It is found that the name, property address, billing address, number of days past due, and the past due balance are all subject to disclosure. Armed with only an address, one is able to find out who owns the property via a traditional in-person inspection or a digital search that will reveal a trove of information. It is recognized in these days of modern technology that all of this requested information, including any properly reported debt, is available with a keystroke and a "Spokeo" type account.6 In this action the municipality will receive the applicable fee for the release of the requested information. Today's decision is supported by the practices of other local agencies. For example, any person can walk into the Cumberland County Tax Claim Bureau or visit their website and look up delinquent real estate tax information. Equipped with only elementary information — a parcel ID number, street address, or name — one can obtain 6 Spokeo.com is just one of many websites that provide an Internet search engine that collates White Pages listings, public records and social network information to help find and review other people. A subscription to the site comes with: full contact information, search results with profiles, relatives and family tree, property records, address history, neighbor listings, proximity of registered sex offenders, community ethnicity and other public records. It is noted that most of this information is mined from data found on public websites, from which the county or municipalities may or may not get remuneration. 9 information on whether there are delinquent real estate taxes on properties anywhere within the county. A requester will get all of the following information: parcel ID number, titled owner, house number, street address, and tax balance due for each tax year (including a breakdown of the amount due into the tax due, penalties, interests, and costs). Furthermore, throughout this Commonwealth when a property is sold, it is commonplace for a settlement company or an attorney's support staff to call the municipality to inquire into debts owed on the property which includes municipal sewer bills, water bills, trash bills, and taxes.' Barron's information request is similar to the information that is disclosed by the Commonwealth's 2562 municipalities on a daily basis. To deny the release of information would be to ignore the clear direction of the RTKL — all agency records are presumed to be public records — and the reality of this information age where most of this information is readily found in ordinary course and the remainder available for a RTKL fee. Therefore, the following Order shall be entered: ORDER OF COURT t t1a'" AND NOW, this 16 day of May 2014, upon consideration of the Petition for Review, the briefs of all interested parties, and following argument held on 28 March 2014, Petitioner's Petition for Review is DENIED. Petitioner is hereby ORDERED to disclose the requested information. Petitioner SHALL disclose the name, property address, billing address, number of days past due, and the past due balance for all sewer accounts that were ninety (90) days or more past due as of 31 July 2013. Petitioner is permitted to provide the records in the manner Lemoyne acknowledges it participates in this practice, by which a routine home sale ends up in some cases with a debt being collected, albeit not the intention underlying the release of information. This real estate sale practice would be found to be a proper release of information consistent with the intent of the RTKL and fundamental in the real estate transaction practice. 10 most convenient and may redact any information not subject to disclosure. Petitioner SHALL furnish the records to Respondents within fifteen (15) days of this Order. Respondents SHALL pay the applicable fee for this request and any future request for information. Distribution: fichael J. Cassidy, Esq. Xharles Rees Brown, Esq. Xraig J. Staudenmaier, Esq. ..„ ozilifcri. 5/ u-pf .71/I 11