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HomeMy WebLinkAbout06-4437 Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SHISSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, P A 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COLLECTION BUREAU, INC., : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : Docket No. (J ~ - '1'1..3 7 SOUTH MIDDLETON TOWNSHIP Defendant : Complaint in Equity COMPLAINT IN EQUITY AND NOW HERE COMES Capital Tax Collection Bureau, Inc., by and through its Solicitor, and hereby files the following Complaint in Equity for a Preliminary Injunction to enjoin production of non-public records and in support states: 1. Capital Tax Collection Bureau, ("CTCB"), is a non-profit membership tax bureau comprised of member municipalities and school districts, to which tax collection and enforcement activities are delegated by its members pursuant to the Local Tax Enabling Act, 53 P.S. ~~6901 et seq., and as such, serves as a governmental instrumentality of its members. 2. CTCB has three divisions, with offices located in Harrisburg, Central Dauphin and Carlisle with its business address at 19 S. Hanover Street, Suite 102, Carlisle'PA, 17013- 3336. 3. South Middleton Township ("the Township") is a non-member municipality that is a body corporate and politic, as a Second Class Township organized Wlder the laws ofthe Commonwealth of Pennsylvania, a principal place of business at 520 Park Drive, Boiling Springs, Cumberland COWlty, Pennsylvania, 17007. 4. Contemporaneously herewith, CTCB files its Petition for Preliminary InjWlction. 5. The Township qualifies as a local agency Wlder Right to Know Law, 65 P.S. ~~66.1, et seq., ("RTKL"). 6. On July 31,2006, South Middleton Township sent a letter to Lucinda C. Glinn, Solicitor for CTCB, advising that it had received what it deemed "an official request" Wlder the RTKL, seeking the contents of "the Township's files pertaining to CTCB" and further advising that it had no intention of denying the request. 7. The Right to Know Law provides that a local agency must respond to a "proper request" within five (5) business days. 8. The Solicitor for the Township stated that he had no intention of getting into a protracted litigation over the contents of the file and intended to provide them to the Carlisle Sentinel Wlless ordered to refrain from so doing. 9. It is therefore believed and averred that the Township will release the records before the end of this week, or by August 4th without court intervention. 10. CTCB thus needs immediate relief in the form of an order from this Court to protect from the release of the materials that the Township has obtained. 11. It is believed and thus averred that the Township did not properly assess the request to determine whether it met the criteria of a proper right to know requesf Wlder the RTKL. 12. It is believed and thus averred that the Township did not review the request to ensure that it complied with the requirements of a proper right to know request under either the RTKL or its open record policy which must implement and extend no further than the RTKL. 13. It is believed and thus averred that the Township has not reviewed the entire contents of its "files pertaining to CTCB" to assess whether each and every document, or part thereof constitutes a public record as that term is defined under the R TKL. 14. It is believed and thus averred that the Township file pertaining to CTCB does not solely contain materials that qualifY as a "public record" as that term is defined in the RTKL to include an account/voucher/ contract evidencing a right or benefit provided by the agency, or a minute/order Idecision that constitutes an essential component of agency action, without which the Township could not have taken official action. 15. It is believed and thus averred that the contents of the Township's files pertaining to CTCB contain, inter alia, informal minutes or notes that involve litigation strategy and confidential personnel matters that are protected from disclosure as confidential. 16. It is believed and thus averred that the contents of the Township's files pertaining to CTCB contain discovery documents exchanged in the course of a litigation. 17. Discovery documents and other documents exchanged in the course oflitigation are not judicial or court records unless they are made of record in a court proceeding. 18. It is further averred that the contents of "the Township's files pertaining to CTCB" would include records that should be protected from disclosure under one of the enumerated exceptions to the RTKL, including personal security, embarrassment and reputation, a right to privacy on behalf of itself and its members; and would include documents that are protected from disclosure by statute as trade secrets, confidential tax information, and confidential membership information that are entitled to protection from disclosure, and may contain social security numbers and other personal identifiers. 19. It is believed and thus averred that the Township is not adhering to the RTKL in accordance with the legal definitions therein, and is not effectuating the policy intended in the law through its open records policy on its face or as applied. 20. CTCB objects to non-public records pertaining to its operations, tax collections, litigation strategy, confidential personnel matters, and all other records that do not qualify as "public records" as that term is defined in the RTKL, being provided to the public when there is no entitlement to them. 21. CTCB does not have a copy of the Right to Know (RTK) request, and despite request was nor provided with one; and thus cannot determine at this time whether all, or only a part of the file(s) contents do not qualify as public records under the RTKL or are otherwise protected under one ofthe statutory exceptions, including other statutes such as the Taxpayers' Bill of Rights and the Local Tax Enabling Act, necessitating this Court's review. 22. It is believed and thus averred that the Township intends to release the requested records regardless of whether they qualify as ''public records" open to public view under either the RTKL or the Freedom of Information Act. 23. It is further believed and thus averred that the Township intends to release non- public records to a newspaper of circulation in one of the areas in which CTCB is based, and serves as tax collection and enforcement delegatee, in order to disrupt and hann the business operations and reputation of CTCB. 24. Because the nature of the hann would be to CTCB's reputation, prospective and existing business relations, and release of the records may adversely affect its rights, current and future operations, the type ofhann is irreparable so that it must be prevented from happening rather than through an after the fact remedy. 25. CTCB would suffer irreparable hann if the contents of "the Township's files pertaining to CTCB" records are released to the Carlisle Sentinel because once released, no remedy can fix the violation of CTCB' s rights and those of its members. 26. There is no adequate remedy at law because once the materials are released, CTCB will suffer the irreparable harm that cannot be easily quantified by monetary damages, and would be ongoing into the future with immeasurable effects upon its tax collection and enforcement activities on behalf of its members, as well as its internal business operations. 27. Greater hann will result from the imprudent release of non-public records to the public than will result from withholding the records until it can be determined whether each and every record requested constitutes a public record to which no exception under the RTKL applies and which are not prohibited from disclosure under any other statute. 28. It is believed and thus averred that CTCB will likely succeed on the merits and that some portion of the records proposed to be disclosed are not "public" in nature and should be protected from disclosure under the RTKL or other statutory protection. 29. Venue for this equitable action is proper in the Cwnberland County Court of Common Pleas because the requestor preswnably resides in Cwnberland County, and is requesting as a member of the press, the Carlisle Sentinel, and South Middleton Township is located in Cwnberland County, and CTCB has a base of operations, the Carlisle Division, in Cwnberland County. 30. It is believed and thus averred that CTCB will sustain immediate and irreparable injury before notice can be given or a hearing held on the issue of whether the records should be released necessitating the attached order be issued pending the outcome of a hearing. VERIFICATION I, William V. Harbeson, the undersigned do hereby state that the statements set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. WI' . Harbeson Date: August 2, 2006 31. CTCB thus satisfies the elements of a preliminary injunction. WHEREFORE, Capital Tax Collection Bureau, Inc., respectfully requests this Honorable Court for the following equitable relief: I) that an order is issued immediately to preliminarily enjoin South Middleton Township from releasing records to the Carlisle Sentinel pending the outcome of a hearing on the matter; 2) and to schedule an expedited hearing on the matter within the time frame provided under the Pennsylvania Rules of Civil Procedure; 3) and such other equitable relief as this Court deems necessary. Respectfully submitted, NAUMAN, SMITH, SHISSLER & HALL, LLP ~~( By: Lucinda C. Glinn, Esquire . ~.. Supreme Court ID #84737 Spencer G. Nawnan, Jr., Esquire Supreme Court ID #07226 Date: August 2, 2006 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, P A 17108-0840 Phone: 717-236-3010 Fax: 717-234-1925 Counsel for Capital Tax Collection Bureau, Inc. Spencer C. Nauman, Jr., Esquire Supreme Court ill No. 07226 Lucinda C. Glinn, Esquire Supreme Court ill No. 84737 NAUMAN SMITH SHISSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPlT AL TAX COllECTION : IN THE COURT OF COMMON PLEAS BUREAU, INC., :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : Docket No. SOUTH MIDDLETON TOWNSHIP Defendant : Petition in Equity CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Lucinda C. Glinn, Esquire, of the firm of Nauman, Smith, Shissler & Hall,!LP, hereby certify that I this day served the foregoing "Complaint" via U.S. Mail, addressed to the following: Richard P. Mislitsky, Esquire Law Offices of Richard Mislitsky One West High Street Carlisle, PA 17013 South Middleton Township 520 Park Drive Boiling Springs, PA 17007-9536 NAUMAN, SMITH, SHISSLER & HALL, LLP By: ~ (l4t~ Lucinda C. Gliim, Esquire Supreme Court ID# 84737 --- Dated: August 2, 2006 ~ "" '""-: ':;' -.. .......1 --' ._.~ ..3. ~ <;j f Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COllECTION BUREAU, INC., : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLV ANlA Plaintiff vs. : Docket No. Of;,. 4431 SOUTH MIDDLETON TOWNSHIP Defendant : Petition in Equity PETITION FOR SPECIAL RELIEF IN THE FORM OF A PRELIMINARY INJUNCTION AND NOW HERE COMES Capital Tax Collection Bureau, Inc., by and through its Solicitor, and hereby files the following Petition for Special Relief in the form of Preliminary Injunction to enjoin production of non-public records, and request an immediate order be issued pending the outcome of an expedited hearing on same and in support states: 1. Capital Tax Collection Bureau, ("CTCB"), is a non-profit membership tax bureau comprised of member municipalities and school districts, to which tax collection and enforcement activities are delegated by its members pursuant to the Local Tax Enabling Act, 53 P.S. ~~6901 et seq., and as such, serves as a governmental instrumentality of its members. 2. South Middleton Township ("the Township") is a non-member municipality that qualifies as a local agency under Right to Know Law, 65 P.S. ~~66.1, et seq., ("RTKL"). 3. On July 31, 2006, South Middleton Township sent a letter to Lucinda C. Glinn, Solicitor for CTCB, advising that it had received what it deemed "an official request" under the RTKL, seeking the contents of "the Township's files pertaining to CTCB" and further advising that it had no intention of denying the request. 4. The Right to Know Law provides that a local agency must respond to a "proper request" within five (5) business days. 5. The Solicitor for the Township stated that he had no intention of getting into a protracted litigation over the contents of the file and intended to provide them to the Carlisle Sentinel unless ordered to refrain from so doing. 6. It is therefore believed and averred that the Township will release the records before the end of this week, or by August 4th without court intervention. 7. CTCB thus needs immediate relief in the form of an order from this Court to protect from the release of the materials that the Township has obtained. 8. It is believed and thus averred that the Township did not properly assess the request to determine whether it met the criteria of a proper right to know request under the RTKL. 9. It is believed and thus averred that the Township did not review the request to ensure that it complied with the requirements of a proper right to know request under either the RTKL or its open record policy which must implement and extend no further than the RTKL. 10. It is believed and thus averred that the Township has not reviewed the entire contents of its "files pertaining to CTCB" to assess whether each and every document, or part thereof constitutes a public record as that term is defined under the RTKL. 2 11. It is believed and thus averred that the Township file pertaining to CTCB does not solely contain materials that qualify as a "public record" as that term is defined in the RTKL to include an account/voucherl contract evidencing a right or benefit provided by the agency, or a minute/order Idecision that constitutes an essential component of agency action, without which the Township could not have taken official action. 12. It is believed and thus averred that the contents ofthe Township's files pertaining to CTCB contain, inter alia, informal minutes or notes that involve litigation strategy and confidential personnel matters that are protected from disclosure as confidential. 13. It is believed and thus averred that the contents of the Township's files pertaining to CTCB contain discovery documents exchanged in the course of a litigation. 14. Discovery documents and other documents exchanged in the course of litigation are not judicial or court records unless they are made of record in a court proceeding. 15. It is further averred that the contents of "the Township's files pertaining to CTCB" would include records that should be protected from disclosure under one of the enumerated exceptions to the RTKL, including personal security, embarrassment and reputation, a right to privacy on behalf of itself and its members, and would include documents that are protected from disclosure by statute as trade secrets, confidential tax information, and confidential membership information that are entitled to protection from disclosure, and may contain social security numbers and other personal identifiers. 16. It is believed and thus averred that the Township is not adhering to the RTKL in accordance with the legal definitions therein, and is not effectuating the policy intended in the law through its open records policy on its face or as applied. 3 17. CTCB objects to non-public records pertaining to its operations, tax collections, litigation strategy, confidential personnel matters, and all other records that do not qualify as "public records" as that term is defined in the RTKL, being provided to the public when there is no entitlement to them. 18. CTCB does not have a copy of the Right to Know (RTK) request, and despite request was nor provided with one; and thus cannot determine at this time whether all, or only a part of the file(s) contents do not qualify as public records under the RTKL or are otherwise protected under one of the statutory exceptions, including other statutes such as the Taxpayers' Bill of Rights and the Local Tax Enabling Act, necessitating this Court's review. 19. It is believed and thus averred that the Township intends to release the requested records regardless of whether they qualify as "public records" open to public view under either the RTKL or the Freedom of Information Act. 20. It is further believed and thus averred that the Township intends to release non-public records to a newspaper of circulation in one of the areas in which CTCB is based, and serves as tax collection and enforcement delegatee, in order to disrupt and harm the business operations and reputation of CTCB. 21. Because the nature of the harm would be to CTCB's reputation, prospective and existing business relations, and release of the records may adversely affect its rights, current and future operations, the type of harm is irreparable so that it must be prevented from happening rather than through an after the fact remedy. 4 22. CTCB would suffer irreparable harm if the contents of "the Township's files pertaining to CTCB" records are released to the Carlisle Sentinel because once released, no remedy can fix the violation of CTCB' s rights and those of its members. 23. There is no adequate remedy at law because once the materials are released, CTCB will suffer the irreparable harm that cannot be easily quantified by monetary damages, and would be ongoing into the future with immeasurable effects upon its tax collection and enforcement activities on behalf of its members, as well as its internal business operations. 24. Greater harm will result from the imprudent release of non-public records to the public than will result from withholding the records until it can be determined whether each and every record requested constitutes a public record to which no exception under the RTKL applies and which are not prohibited from disclosure under any other statute. 25. It is believed and thus averred that CTCB will likely succeed on the merits and that some portion of the records proposed to be disclosed are not "public" in nature and should be protected from disclosure under the RTKL or other statutory protection. 26. Venue for this equitable action is proper in the Cumberland County Court of Common Pleas because the requestor presumably resides in Cumberland County, and is requesting as a member of the press, the Carlisle Sentinel, and South Middleton Township is located in Cumberland County, and CTCB has a base of operations, the Carlisle Division, with its business address at 19 S. Hanover Street, Suite 102, Carlisle PA, 17013-3336. 27. It is believed and thus averred that CTCB will sustain immediate and irreparable injury before notice can be given or a hearing held on the issue of whether the records should be released necessitating the attached order be issued pending the outcome of a hearing. 5 WHEREFORE, Capital Tax Collection Bureau, Inc., respectfully requests this Honorable Court to issue an order immediately to preliminarily enjoin South Middleton Township from releasing records to the Carlisle Sentinel pending the outcome of a hearing on the matter, and to schedule an expedited hearing on the matter within the time frame provided under the Pennsylvania Rules of Civil Procedure. Respectfully submitted, NAUMAN, SMITH, SIllSSLER & HALL, UP BY:~~ Lucinda C. Glinn, Esquire Supreme Court ID #84737 Spencer G. Nauman, Jr., Esquire Supreme Court ID #07226 Date: August 2, 2006 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Phone: 717-236-3010 Fax: 717-234-1925 Counsel for Capital Tax Collection Bureau, Inc. 6 "","j \' \ -, -, J c VERIFICATION I, William V. Harbeson, the undersigned do hereby state that the statements set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Will . Harbeson Date: August 2, 2006 Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COllECTION : IN THE COURT OF COMMON PLEAS BUREAU, INC., :CUMBERLAND COUNTY, PENNSYLV AN1A Plaintiff vs. : Docket No. SOUTH MIDDLETON TOWNSHIP Defendant : Petition in Equity CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Lucinda C. Glinn, Esquire, of the firm of Nauman, Smith, Shissler & Hall, UP, hereby certify that I this day served the foregoing "Petition for Special Relief in the Form of a Preliminary Injunction" via U.S. Mail, addressed to the following: Richard P. Mislitsky, Esquire Law Offices of Richard Mislitsky One West High Street Carlisle, PA 17013 South Middleton Township 520 Park Drive Boiling Springs, PA 17007-9536 NAUMAN, SMITH, SHISSLER & HALL, LLP B~~ Lucinda C. Glinn, Esquire Supreme Court ID# 84737 Dated: August 2, 2006 '-"", ; '~J :;'- I: 'I < ;~ i: / Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, P A 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. , RECEIVED AUG 032006 ~ CAPITAL TAX COlLECTION BUREAU, INC., : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : Docket No. Ot, . LJ ~ 3' SOUTH MIDDLETON TOWNSIllP Defendant : Petition in Equity ORDER AND NOW, this vi" day of August, 2006, IT IS HEREBY ORDERED AND DECREED that South Middletown Township is preliminarily enjoined from releasing any records in response to the alleged Freedom of Information ActlRight to Know Law request of the Carlisle Sentinel pending the outcome of a hearing scheduled on this matter for the 7 ~ day of ~ , 2006, 3t ~'/~ -A. .M. in CourtRoom No.3 , Cumberland County Court House, Carlisle, Pennsylvania. J. ~.o 'IR o f\,l{j ~ g ~ '""" .. z ~~ eN ~~ p,:~ ~ ~~ ~.....~. -r i~.'."'...(f)5=.. ,. 0 ,'.~Z :::t ... c .t5. .~ ~ CAPITAL TAX COLLECTION BUREAU, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SOUTH MIDDLETON TOWNSHIP, : Defendant NO. 06-4437 CIVIL TERM ORDER OF COURT AND NOW, this 7th day of August, 2006, hearing in this matter is continued to Friday, August 11, 2006, at 10:30 a.m. provided, however, that the request for preliminary injunction with regard to any matters admitted as an exhibit in the litigation before Judge Wickersham or referred to in that litigation is denied. That request should be addressed to Judge Wickersham. South Middleton Township is directed to provide a list of all documents it intends to turn over pursuant to this request to plaintiff by close of business today. Plaintiff is then directed to provide Defendant with a list of which documents are objectionable by close of business tomorrow. That way we will be in position to narrow the issues for the hearing on Friday. Counsel for Plaintiff shall have the ability to review the actual records in the list at South Middleton Township's offices. Edward E. Guido, J. vCucinda For the ~chard For the srs C. Glinn, Esquire plaintiff ~ P. Mislitsky, Esquire Defendant ~ ~ ~ I I I I 'v'lN)fAlASNN3d JJ.NNXJ m.WlH38ma Ql'J :f; Wd g- $nv 'OOZ -,.... , A1N~ ;\Q , , Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. GIinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg,PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Capital Tax Collection Bureau. Inc. CAPITAL TAX COLLECTION BUREAU, INC., : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff vs. : Docket No. 06-4437 EQ.Civil Term SOUTH MIDDLETON TOWNSlllP: Defendant OBJECTIONS TO DISCLOSURE OF NON-PUBLIC RECORDS OF SOUTH MIDDLETON TOWNSHIP AND NOW HERE COMES Capital Tax Collection Bureau, Inc., ("CTCB"), by and through its Solicitor, and states the following with respect to the contents of the files that South Middleton Township (hereinafter the "Township") proposes to release in response to John Hilton's Right to Know Law request ("Request") and states as follows: I. CTCB filed a Preliminary Injunction and a Complaint in Equity on August 2, 2006, in response to correspondence from the Solicitor for the Township stating that it intended to release the entire contents of the "Township files pertaining to CTCB" in response to Right to Know Request received by Mr. Hilton of the Carlisle Sentinel. 2. Mr. Hilton's Request was not received by nor sent to CTCB nor its Solicitor until days after the Township threatened to release the entirety of its files pertaining to CTCB. 3. Mr. Hilton's Right to Know Request was submitted pursuant to the Right to Know Law ("RTKL "), 65 P.S. ~~ 66.1 et seq. and had not been seen by CTCB nor its Solicitor until Friday, August 4, 2006, when it was received from the Township in the U.S. Mail. 4. Mr. Hilton's Request is much more limited than the Township's characterization of it as all "Township files pertaining to CTCB" and sought only the following: "Financial statements from the Capital Tax Collection Bureau. Also, all transcripts, correspondence and all records pertaining to collections and distributions done for South Middleton.,,1 5. With respect to Mr. Hilton's Request for "Financial Statements" from CTCB, CTCB does not dispute that its annual audit reports in final form are public records and asserts no objection to their disclosure to Mr. Hilton on that basis; CTCB would have provided such records to Mr. Hilton had he requested them from CTCB directly. 6. CTCB does not dispute that all records provided by CTCB to South Middleton that pertain to collections and/or distributions done for the Township are a public record as an account, voucher or contract evidencing receipt or disbursement of public funds, and asserts no objection to the Township's disclosure of such records as contained within the Township's "Reconciliation" and "Invoice" files. 7. CTCB does not dispute that the correspondence accompanying collections and/or distributions evidencing a receipt or disbursement of tax monies constitutes a public record, and asserts no objection to the Township's disclosure of the accompanying correspondence. I In correspondence directed to Solicitor for the Township dated August 8, 2006, the undersigned requested clarification as to what documents the Township intended to provide in response to Mr. Hilton's Request, as opposed to the entire contents of its files pertaining to CTCB produced to the undersigned on August 7th for review as ordered by this Court. Since the Township Solicitor did not respond with any clarification as of close of business August 8th these objections are made to the contents of the files produced to the undersigned, and thus pertain to records that are not specified in Mr. Hilton's Request so as not to waive any objection to production thereof. 2 8. With respect to the transcripts from the hearings held before The Honorable Richard B. Wickersham (Referee) in the Dauphin County Court of Common Pleas, such records constitute a judicial record when made available by the Court and their public nature shall not be disputed here in accordance with The Honorable Edward Guido's Order that the public nature of such transcripts is not before him and access to them should be before Judge Wickersham. 9. CTCB objects to providing any of the agenda and/or minutes and/or annual audit reports that are marked "Tentative" or "Tentative draft for discussion purposes only." 10. The contents of the Township's file labeled "Minutes" included many Agenda that were labeled "Tentative," to which CTCB asserts an objection so as not to waive the pre- decisiOnal/investigative privilege pertaining to drafts and non-fmal minutes which do not become public records until approved. See LaValle v. OGC, 564 Pa. 482, 497,769 A.2d 449, 458 (2001). 11. Included within the file containing Minutes of all general meetings, which are public meetings that are open to the Sunshine Act, 65 Pa. C.S. ~~701 et seq, , and for which all final minutes are undisputedly public in nature, were the Finance Committee minutes of August 18,2005, to which CTCB asserts an objection to disclosure. 12. It is believed that this Honorable Court stated the issue of providing them is moot since the Sentinel has a copy of them, and accordingly, it is believed that they are no longer going to be produced by the Township. 13. In the event the Township seeks to produce the Finance Committee minutes despite this Court's characterization of that issue as 'moot,' and may elect to do so in the future if requested by another Pennsylvania citizen, CTCB objects to providing the Finance Committee "minutes" as non-public records, as records that are neither generated by an "agency," nor "public records" as that term is defined in the RTKL, and as improperly beyond the scope of the 3 RTK request since he does not seek a copy of, nor need access to, these Finance Committee minutes. See laValle v. OGC, supra (attorney deliberations work product may be shielded on deliberative process grounds, and records revealing such deliberations are not public); see also Tribune Rev. Pub. Co. v. DeED, 580 Pa 80, 859 A.2d 1261 (2004). 14. With respect to the folder that the Township produced which contained "Audit Reports" some of these Audit Reports were marked "Tentative for discussion purposes only" on each of the pages. It is only these "Tentative for discussion purposes only" drafts that CTCB objects to any proposed disclosure by the Township as they are not final and are thus pre- decisional and protected from disclosure on such basis for deliberative process or investigative reasons. Id. These "tentative drafts" include, but are not limited to: . Two copies of an Audit Report from December 31, 1992, through 1991; . Audit Report for December 31,1995, through 1994; . Two copies of a letter dated March 29, 1996, appearing to be from KPMG relative to the parameters for an audit. 15. Any and all records which are marked "tentative" in any said fashion would not constitute a minute, order or decision, nor an account, voucher or contract. Such documents would be considered predecisional and investigative in nature and accordingly be exempt from disclosure as a non-public record! 65 P.S. ~66.1 (" 'public records' shall not mean any report, communication, or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties. ."). 16. In order to qualify as a public record "of an agency," that record must be generated by or maintained by that agency rather than merely in the possession of the agency. 2 Audit reports and minutes of CTCB do not actually qualify as public records of the Township. but rather would be public documents ofCTCB. 4 See Union/own Newspapers,Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185 (n.l) (2003)(party who asserts a right of disclosure has burden of proving requested material is a public record generated by an agency as defmed in RTKL) (citing North Hills News Record V. Town of McCandless, 555 Pa. 51, 722 A.2d1037, 1039 (1999). None of the contents are actually generated by nor maintained by the Township to conduct Township business and are not their records to disclose. 17. Right to Know Law precedent is clear that in order to qualify as a public record, the first element is that the record must be "of an agency." See id 18. CTCB does not here assert any objection to the disclosure of Annual Audit Reports and AgendalMinutes of its Public general meetings to the extent that they are Final, or are presumed to be Final because they are not marked "tentative," as CTCB makes such documents in final form available to the public. 19. With respect to the contents of the Township's "Correspondence" file, CTCB asserts an objection that none of the contents of the correspondence file, other than those letters which had been admitted as exhibits in the hearings before Judge Wickersham (Referee) in Dauphin County Court, may constitute public record of South Middletown Township. 20. Any piece of correspondence, other than letters that may have been transformed into a judicial record as an exhibit to a transcript, is not public in nature as it is not an "account, voucher or contract" which evidences the receipt or disbursement of public funds, nor does it qualify as a "minute, order or decision" of the Township fixing the personal or property rights or privileges and/or duties of persons. 21. Because the correspondence within the file marked as "Correspondence" by the Township does not qualify under the definition of a public record as stated in Paragraph 20 above, CTCB objects to its disclosure. 5 22. Within the contents of the Correspondence file, CTCB's Solicitor marked certain correspondence that was not directed to or from the Township because it is not a record of the Township (i.e., letter addressed to representative of North Middleton Township), in addition to not qualifying as a public record under the RTKL. 23. CTCB objects to disclosure of all letters addressed to non-SMT employees and or representatives, as such correspondence are not records of the Township and are therefore not obtainable from it as "public records," and further do not qualify as public records as accounts, vouchers or contracts, nor as minutes, orders or decisions, nor essential components thereof. 24. CTCB objects to disclosure of a facsimile sent from Barbara Wilson to Robert Vilella on 10-14-04 as it does not qualify as a public record. 25. CTCB objects to disclosure of an e-mail of Craig Witmer to Jarett Sweeney of the Township as the correspondence is neither from nor to CTCB and again does not qualify as a minute, order or decision nor as an account, voucher or contract as is required to be subject to disclosure under the Right to Know Law. 26. CTCB objects to disclosure of the Letter from the Township to P. Vance and Smith listed on its Respouse. 27. The Township also produced a file containing newspaper articles from the Carlisle Sentinel. Although CTCB does not object to these materials being produced to the Sentinel because although unnecessary, such records do not constitute a public record of the Township, nor do they qualify as an account, voucher, contract, nor a minute, order or decision of the Township. However, as it is undisputed that said newspaper articles are public and have been published, CTCB asserts no objection to them as they are already open to public view. 6 WHEREFORE, Capital Tax Collection Bureau, Inc., respectfully requests this Honorable Court to issue an order immediately to protect the above-objected to records from disclosure under the Right to Know Law as such records are not "public" records "of an agency" i.e., South Middleton Township, nor are the records responsive to the Request submitted by John Hilton. Respectfully submitted, NAUMAN, SMITH, SIllSSLER & HALL, UP By:d~~ Lucinda C. Glinn, Esquire Supreme Court ID #84737 Spencer G. Nauman, Jr., Esquire Supreme Court ID #07226 Date: August 8, 2006 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Phone: 717-236-3010 Fax: 717-234-1925 Counsel for Capital Tax Collection Bureau, Inc. 7 . . Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COllECTION : IN THE COURT OF COMMON PLEAS BUREAU, INC., :CUMBERLAND COUNTY, PENNSYLV AN1A Plaintiff vs. : Docket No. 06-4437 Civil Term SOUTH MIDDLETON TOWNSHIP Defendant : Petition in Equity CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Lucinda C. Glinn, Esquire, of the firm of Nauman, Smith, Shissler & Hall, ILP, hereby certify that I this day served the foregoing "Objections to Disclosure of Non-Public Records" via U.S. Mail, addressed to the following: Richard P. Mislitsky, Esquire Law Offices of Richard Mislitsky One West High Street Carlisle, PA 17013 NAUMAN, SMITH, SHISSLER & HALL, LLP By: d~~ ~ Lucinda C. Glinn, Esquire Supreme Court ID# 84737 Dated: August 8, 2006 g ~ ~ """ a" ~i -o~ ~ rnrn C') ~ -:;o''"\i '9f'r I tQ2:: .0 "<:- ~ coU :P' .? ~O ::It --0 C? J>C i ~ - y;l . . Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (717-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COLLECTION BUREAU, INC., : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : Docket No. 06-4437 EQ.Civil Term SOUTH MIDDLETON TOWNSHIP Defendant OBJECTIONS TO DISCLOSURE OF NON.PUBLIC RECORDS OF SOUTH MIDDLETON TOWNSHIP AND NOW HERE COMES Capital Tax Collection Bureau, Inc., ("CTCB"), by and through its Solicitor, and states the following with respect to the contents of the files that South Middleton Township (hereinafter the ''Township'') proposes to release in response to John Hilton's Right to Know Law request ("Request") and states as follows: 1. CTCB filed a Preliminary Injunction and a Complaint in Equity on August 2, 2006, in response to correspondence from the Solicitor for the Township stating that it intended to release the entire contents of the ''Township files pertaining to CTCB" in response to Right to Know Request received by Mr. Hilton of the Carlisle Sentinel. 2. Mr. Hilton's Request, submitted pursuant to the Right to Know Law ("RTKL"), 65 P.S. ~~ 66.1 et seq. (which had not been seen by CTCB until Friday, August 4,2006, when it was received from the Township by U.S. Mail), sought: "Financial statements from the Capital I Tax Collection Bureau. Also, all transcripts, correspondence and all records pertaining to collections and distributions done for South Middleton." 3. CTCB objects to providing any of the agenda and/or minutes and/or annual audit reports that are marked "Tentative" or "Tentative draft for discussion purposes only." 4. The contents of the Township's file labeled "Minutes" included many Agenda that were labeled "Tentative," to which CTCB asserts an objection so as not to waive the pre- decisional/investigative privilege pertaining to drafts and non-final minutes which do not become public records until approved. See LaValle V. OGC, 564 Pa. 482, 497, 769 A.2d 449,458 (2001); see also Tribune Rev. Pub. CO. V. DCED, 580 Pa. 80, 859 A.2d 1261 (2004). 5. CTCB objects to disclosure of all Audit Reports or Audit Letters marked "Tentative for discussion purposes only" on each of the pages as they are not final and are thus pre-decisional and protected from disclosure on such basis for deliberative process or investigative reasons. Id. These "tentative drafts" include, but are not limited to: . Two copies of an Audit Report from December 31,1992, through 1991; . Audit Report for December 31,1995, through 1994; . Two copies of a letter dated March 29, 1996, appearing to be from KPMG relative to the parameters for an audit. 6. In order to qualify as a public record "of an agency," that record must be generated by or maintained by that agency rather than merely in the possession of the agency. See Uniontown Newspapers, Inc. V. Roberts, 576 Pa. 231, 839 A.2d 185 (n.l) (2003)(party who asserts a right of disclosure has burden of proving requested material is a public record generated by an agency as defined in RTKL) (citing North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037, 1039 (1999)); 65 P.S. ~66.1 ('''public records' shall not mean any report, 2 . communication, or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties. . "). 7. CTCB objects to disclosure of an e-mail of Craig Witmer to Jarrett Sweeney of the Township as it does not qualify as a minute, order or decision nor as an account, voucher or contract as is required to be subject to disclosure under the Right to Know Law, and the above e- mail forwards an e-mail from William V. Harbeson, Executive Director of CTCB, and thus contains his e-mail address which should be redacted under ~66.3-2 as "personal information," the release of which invades his privacy is likely to subject him to and public harassment. WHEREFORE, Capital Tax Collection Bureau, Inc., respectfully requests this Honorable Court to issue an order immediately to protect the above-objected to records from disclosure under the Right to Know Law as such records do not qualify as "public records" "of an agency" i.e., South Middleton Township, for the above stated reasons. Respectfully submitted, NAUMAN, SMITH, SIllSSLER & HALL, UP ~~-~.. h ~.. By: . Lucinda C. Glinn, Esquire Supreme Court ID #84737 Date: August 10, 2006 Spencer G. Nauman, Jr., Esquire Supreme Court ID #07226 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Phone: 717-236-3010 Fax: 717-234-1925 Counsel for Capital Tax Collection Bureau, Inc. 3 . Spencer C. Nauman, Jr., Esquire Supreme Court ID No. 07226 Lucinda C. Glinn, Esquire Supreme Court ID No. 84737 NAUMAN SMITH SmSSLER & HALL, LLP 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Facsimile: (7 17-234-1925 Counsel for Cavital Tax Collection Bureau. Inc. CAPITAL TAX COLLECTION : IN THE COURT OF COMMON PLEAS BUREAU, INC., :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : Docket No. 06-4437 Civil Term SOUTH MIDDLETON TOWNSHIP: Petition in Equity Defendant CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Lucinda C. Glinn, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Objections to Disclosure of Non-Public Records" via U.S. Mail, addressed to the following: Richard P. Mislitsky, Esquire Law Offices of Richard Mislitsky One West High Street Carlisle, PA 17013 NAUMAN, SMITH, SHISSLER & HALL, LLP ~ flJM . By: -~ Lucinda C. Glinn, Esquire Supreme Court ID# 84737 . Dated: August 10, 2006 4 CO) .... <=> ffl ,,~ <=> "" i!:: ~:n 52P1 .XC .... ~fTi Zlw ~~> 0 : y .2 'o~C) C". !< . -0 ?S~ ~8 :x ( -.. ~O >. r:-:> urn Z ~ :< <::)0 w '< CAPITAL TAX COLLECTION BUREAU, INC., plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SOUTH MIDDLETON TOWNSHIP, : Defendant NO. 06-4437 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of August, 2006, it appearing to the Court that all records at issue were obtained by South Middleton from third parties, said documents are not protected under the Right to Know Law, and, therefore, this action is DISMISSED. Edward E. Guido, J. ~cinda C. G1inn, Esquire For the Plaintiff ~chard P. Mis1itsky, Esquire For the Defendant ~ ~.. fa O<tJ srs I/INVAlASNN3d AlNnW O~ Vl1::l3S'Wm SZ:I Wd iJISOV90Ul Al:I\flONOHlOod 3Hl .:lO 3::l8:lO-O31l:1