Professional Documents
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Commencement of Action:
S
E
Complaint
Writ
of
Summons
Petition
C T
I
BOROUGH OF LEMOYNE
requested?
Yes
El No
0 N
I
Is this
a
Yes
No
Is this
an
MDJAppeal?
13
Yes
M No
A
F
Name
of
Plaintiff/Appellant'
Attorney:
13
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of
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Updated 11112011
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Uttl ; ER # ND C 0 U N T Y
By:
Michael J.
Cassidy
ENNSYLVANIA
Attorneys for Petitioner
BOROUGH OF LEMOYNE,
Petitioner
NIA
v.
CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE PRESIDENT OF CONTENT FOR THE
PATRIOT- NEWS / PENNLIVE,
Respondents
PETITION FOR REVIEW OF THE BOROUGH OF LEMOYNE FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS
AND NOW
comes
Borough
of
Lemoyne,
1302
I. INTRODUCTION
1.
This Petition
arises out of
Respondent Office
of
of
final determination
on
et
XS
Borough' s Petition and overturn the OOR' s Determination because the requested delinquent sewer account
Extension
customer information
is prohibited from
et
publication
under the
Fair Credit
Uniformity
Act, 73 P. S. 2270. 1,
A.
The Parties.
2.
of
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.
Community and Economic Development pursuant to the RTKL. The OOR maintains a business
address
at
Commonwealth
Keystone
Building,
400
North
Harrisburg,
5. PennLive,
Respondent, Cate Barron, is Vice President of Content for The Patriot- News /
which maintains an
office
address
of
2020
Mechanicsburg,
and
B.
6.
On August 30, 2013, Cate Barron, in her capacity as Vice President for Content
submitted a
7.
documents:
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 pastdue balance." See, Exhibit A.
8.
By letter dated September 10, 2013, the Borough of Lemoyne, by and through its
requested
Solicitor, Michael J. Cassidy, responded to Ms. Barron and advised her that the Borough would
not
be releasing the
under
documents,
published and
The
Fair Credit
Uniformity
Act, 73 P. S. 2270. 1,
to disclosure
under
et
therefore
the RTKL.'
16,
2013,
Ms.
of
Barron
submitted
request.
an
appeal
to the
OOR,
Lemoyne' s denial
her RTKL
10.
appeal and
On September 17, 2013, the OOR issued an Official Notice of Ms. Barron' s
invited both
parties
to
supplement
the record.
11.
Neither the Borough nor Ms. Barron supplemented the record as the matter was
prohibited
FDCPA")
Uniformity
Act, 73 P. S. 2270. 1,
et
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
C.
The OOR Issues a Final Determination that Delinquent Sewer Records are
12.
On October 3,
2013,
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.
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,
Cnty.
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.
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
and
may
substitute
its
own
findings
of
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.
upon
The Court' s decision " shall contain findings of fact and conclusions of law based
65 P. S. 67. 1301( a).
the
evidence as a whole."
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.
19.
Therefore,
sewer
the threshold and only issue before this Court is whether the
information
requested under
delinquent PennLive is
account
by
Ms.
Barron
and The
Patriot- News /
exempt
from
being
disclosed
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
20.
21.
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.
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
of age or older.
See, 73 P. S. 2270. 5( a)
a violation of
the Unfair Trade Practices and Consumer Protection Law), and Section 8 of the
and
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
delinquent
account report.
determination of whether the requested information is subject to disclosure under the RTKL.
23.
concern.
Financial records maintained by a local agency generally are a matter of public 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,
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.
reaches only methods and practices " with regard to the collection of debt"
and prohibits harassment, oppression and abuse " in connection with the
collection public] of
debt"
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."
25.
Respondent,
OOR,
does
not
constitute
competent
tribunal
capable
of
determining the scope and applicability of consumer protection provisions under FCEUA.
26.
Re:
Appeal
the
City
2010)
of
Sharon
Dist. &
27.
The Opinion issued by The Honorable Christopher J. St. John of the Court of
County,
Pennsylvania, in the
matter of
In Re:
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. deceptive
The FCEUA establishes, among other things, what are considered to be unfair or
acts or practices with regard
to the
collection of
debts.
See, 73 P. S. 2270. 2.
29.
30.
The
collector"
as a
person
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).
mirrors the FDCPA, as it pertains to unfair or deceptive acts or practices by debt collectors.
However,
the
FCEUA has
afforded
thereunder, to the extent that the FCEUA also regulates unfair or deceptive acts or practices by
creditors.
32.
Creditor.'
business under the name of a creditor and within this Commonwealth, to whom a
debt is owed or alleged to be owed."
33.
Petitioner, Borough
of
Lemoyne, is
a "
extent that the Borough is owed a debt by its customers for sewage treatment services.
The FCEUA defines " debt" to be an actual or alleged past due obligation, claim,
34.
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.
permitted
by
law to be
collected.
See, 73 P. S.
35.
b)
collection act or practice under the Act if a creditor violates any of the following
provisions:
4)
consequence
connection
is to harass,
of
with
the
collection
debt.
iii)
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.
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.
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.
not
publication."
bring
before
public;
to
exhibit,
display,
disclose
or reveal."
Blacks Law
Dictionary,
6" Edition
1990).
38.
information requested by Requester, Cate Barron, in response to the RTKL request, it would be
a " publication"
sewer
account
information,
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
39.
response to a RTKL request because the information is not being disclosed directly in
connection with
the
collection
of a
merit.
construed so as to only regulate creditor behavior when the creditor is actively engaged in the
process of
collecting
debt.
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.
disclosure under the RTKL completely eviscerates the intent of the FCEUA to protect
consumers
from harassment,
oppression, or abuse
in
relation
to that debt.
not simply prohibit creditors from engaging in conduct " with the intent" to harass, oppress or
abuse a consumer with respect
to
debt.
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
to RTKL be to harass, oppress or abuse those
releasing the names, address and amounts owed by delinquent sewer account customers to a
third
party in
response
request
would
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.
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.
of
that
publication
list
of
consumers
who
allegedly
refused
provided the creditor is a local agency publishing the information in response to a RTKL
request.
44.
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.
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.
regarding the collection of delinquent accounts, establishing payment plans because of personal
hardships, financial
problems,
health issues,
etc.
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,
misapplied the consumer protection provisions set forth in the FCEUA which prohibits the
11
46.
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
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.
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
to the best
of
my knowledge, information
to the
penalties of
and
belief.
statements
herein
are subject
18 Pa. C. S.
falsification authorities.
Kathryn A. Mo row
13
CERTIFICATE OF SERVICE
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:
Pennsylvania Media Group 2020 Technology Parkway, Suite 300 Mechanicsburg, PA 17050
By.
6--L,-)
Michael J. Cassidy Attorney ID No. 82164
301 Market Street
14
Exhibit q
PENN
L I V E
ebarron@pennlive.com
717- 255-8165
Kathryn A. Morrow
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.
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 RTYL, 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
Exhibit 13
JERRY R. DUFFIE
RICHARD W. STEWART
F I
C E S
J.
CASSIDY
SON DU FFIE
MELISSA P. GREEVY
WADE D. MANLEY
Group
Re:
I write this letter in my capacity as Solicitor for the Borough of Lemoyne, Cumberland County,
Pennsylvania.
you submitted
Please allow this letter to serve as a formal response to the Right-to- Know Request 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.
of
In
Pa.
We acknowledge that The Honorable Christopher J. St. John issued an opinion in the matter Appeal of the City of Sharon Sanitary Authority v. Office of Open Records, et al., 10 353 ( Mercer Co. 2010), finding that delinquent customer sewer account records D. & C.
re:
5th
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
throughout the Commonwealth
of
precedence
Pennsylvania.
St. John' s reasoning is flawed, in that both the plain language and intent of the Fair Debt Collection
JOHNSON,
DUFFIE,
STEWART &
WEIDNER, P. C.
Page 2
Practices Act and the Pennsylvania Fair Credit Extension Uniformity Act prohibits the publication of
delinquent consumer account information.
intended to
Lemoyne Borough understands and appreciates that the Pennsylvania Right-to- Know Law is 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.
Michael J. Cassidy
MJC: bf: 579165
cc
sue
Exhibit c
pennsyLvania
OFFICE. OF OPEN REC.ORUS
RECEIVED
SEP 16 2013
OFFICE OF OPEN RECORDS
Commonwealth Keystone Building 400 North Street,,4t Floor Harrisburg, PA 17120- 0225
mail: Fax: ( 717) 425- 5343 E o
enrecof. ds coa.gov
Today' s date:
16 September 2013
Requesters
name
Request
submitted
by:
Mait
16
E- mail
30 August 2013
fax
number,
71 "
Name
and address of
Name.and title of person who denied my'reguest: Michael J. ivassidy, Borough Solid or
denied my
request.
E- mail
Borough of Lemoyne, 510 Herman Ave., Lemoyne, PA 17043 Agency; kmorrow emoynepaxom Fax of Agency Address of Agency
I submitted a. request for records to the agency named above: The agency ettlie. denied or partially
I
am
of
providing the following hil'orniat on; I was denied access to the following records ( attach additional pages days ifnecessary): past due name,,
listing
of sewer accounts
90 days
or more past
due, with
amount.&
The
because( check
all
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 if necessary)( REQUIRED):
the agency gives
The agency denies release claiming they are exempt from disclosure under the Fair Debt Collection
Practices Act, 15. U. S. C.
of
for denying
2270. 1, at seq. Agency acknowledges 2010 ruling by Mercer County Judge.Christopher J., St. John In:re: 10 Pa D. & C. 5th 353, Open Flecords, Office Sharon Sanitary Authority the City Appeal upholding OOR ruling for release, but says opinion does not establish preced:mt and is flawed.
of v. of et al.,
1692, et seq. and the Pennsylvania Fair Credit Extension Uniformity Act, 73 Pa.
d I have attached a copy ofall responses fiom the agency regardinf,,my request. (REQUIRED)
any letters or
notice
Respectfully
5'
Submitte
the
a
enc with a
ott should
rovide
copy
docrtmcnts
ou submit
to the OOR.
exhibit D
pennsyLvania
OFFICE OF OPEN RECORDS
Pennsylvania Media
dgililaftdgpennlive.com
Open Records (" OOR'?) received this appeal under the Right-to-
The process to
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 Accordingly, the originally denied, Levy v. Senate of Pa., 65 A.3d 361 ( Pa. 2013). 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
Commonwealth Keystone
building
400
F 71'7: 425:53431
The agency has the burden ofproving 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
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.
The
Commonwealth
contractors ...
held that " the burden '[ is] on third-party to prove by a preponderance of the evidence that the [ requested] records
Court has
are exempt." .
2011). Failure to participate in an appeal before A.3d 1025, 1042 ( Pa. Commw. Ct. -
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:
I
i
I i
pennsytvania
OFFiCE OF OPEN RECORDS
APPEALS
OFFICER:
CONTACT INFORMATION:
FACSIMILE:
E-MAIL:
Preferred method of contact
and submission of
information:
to this appeal to the above Appeals Officer. Please include the case
name and docket number on all submissions.
peiirecords. state.pa.us, is searchable and both The OOR website, http:// o. parties are encouraged to review prior final determinations involving similar
records
and
appeal.
Exhibit
pennsyLvania
OFFICE OF OPEN RECORDS
FINAL DETERMINATION
BOROUGH OF LEMOYNE,
Respondent
INTRODUCTION
Cate Barron, Vice President
Content for The Patriot- News/ PennLive (" Requester"),
of
of
67. 101
et
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
was
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
within five ( 5) business days of receiving the Request, and the Request was, therefore, deemed
denied.
See 65 P. S.
67. 901.
Request, arguing that the records are confidential pursuant to the Fair Debt Collection Practices
Act, 15 U. S. C.
P. S. 1692
et
2270. 1
et
On September 16, 2013, the Requester appealed to the OOR, challenging the denial and
stating
grounds
for disclosure.
directed the Borough to notify any third parties of their ability to participate in the appeal
pursuant
to 65 P. S.
67. 1101(
c).
The
objective of
the
access
their government."
Wintermantel, 45 A.3d 1029, 1041 ( Pa. 2012). Further, this important open- government law is
Bowling
v.
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.
hearing
to
resolve
an
appeal.
discretionary and non-appealable. Id.; Giurintano v. Dep' t of Gen. Servs., 20 A.3d 613, 617 ( Pa.
Here, neither party requested a hearing and the OOR has the necessary,
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.
is
requested
within
custody
65
P. S. 67. 901.
An agency bears the burden of proving the applicability of any cited exemptions.
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.
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
of
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:
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 Fair Credit Reporting Act( Public Law 91- 508, 15 U. S. C. 1681 et i
seq).
73 P. S. 2270. 4( b)( 4)( iii). FCEUA mirrors FDCPA, which contains the same language. See 15
U. S. C. 1692d( 3).
delinquent utility information. In holding that FCEUA did not prohibit the release of delinquent
sewer account information, the OOR found:
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.
Pleas,
The OOR' s final order in Anderson was appealed to the Mercer County Court of Common
which affirmed,
In re: Appeal of the City of Sharon Sanitary Authority, No. 2009- 3539,
Dec. LEXIS 30 ( Mercer Com. Pl. Jan. 26, 2010).
Cnty.
release
of
information
pursuant
to the [ RTKL]
FCEUA]
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
may
not
be
a reason
to
deny
information by the Authority does not violate the plain language and/ or the legislative intent underlying both remedial statutes.
Id, at * 11.
The OOR
adopts
the Court'
reasoning in the
present matter.
information here would not be in connection with the Borough' s efforts to collect delinquent
sewer
fees.
obligation
the RTKL to
provide
access
to public records.
See 65 P. S.
Therefore, release of these records would not violate FCEUA or FDCPA. Forest Hills Volunteer
Fire Company v. Borough ofForest 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.
For the foregoing reasons, Requester' s appeal is granted and the Borough is required to
provide all responsive records
to the Requester
within
of the mailing date of this Final Determination, any party may appeal to the Cumberland County
Court
of
Common Pleas,
65 P. S.
appeal.
The OOR also shall be served notice and have an opportunity to respond according to
Section 1303
of
the RTKL.
APPEALS OFFICER
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-
COUNSEL:
[* 1]
Courtney Lynn Anderson is reporter for The Herald who attends the monthly board meetings of the Authority
as part of her duties as a reporter. She has also written
owed to the Authority. As part of her investigative reporting, Ms. Anderson submitted a recounts [**
355]
sylvania's Right-to-Know Lew, seeking access to Jelinquent sewer accounts, including the names and addresses
ST. JOHN, J. A
ple
sewer
with
a request accounts.
for
list
of peo-
The
authority
was con-
wanted
to
release
cerned
protection
laws
of
and expose
I to
civil
damages. Release
to
a court
the
requested
information,
pursuant
order,
however,
would
and/ or civil
review
insulate the authority from damages penalties, It is this court' s holding after close
respective
It is uncontested that the Authority is In favor in principal of releasing the information to Respondent because the Authority believes that it will result in higher
collections on past
of
the
statutes,
that the
relevant
con-
due
accounts. [*
3] It is fearful, how-
sumer protection
in
conflict with
Pennnovo
sylvania' s new
the
requested
The sole question presented here is whether Pennsylvania's Right-to- Know Law, when road in conjunction
with these consumer protection statutes, prohibits the
The
pal
City
of
Sharon
Sanitary Authority
is
a munici-
authority created by the City of Sharon around September of 2007. Part of the Authority' s function is to
maintain
financial
records
City
re-
garding
uncollected
debt for
to
Cnty.
preting
inter-
of
sembly." Pa. Oep' t of Transp., Bureau of Driver Licensing v. Weaver, [ 590 Pa.
Section 67. 708, protected by a privilege and/ or is " exempt from disclosure under any federal or state law or
regulation or
Pa.C.S.
188] 912 A. 2d 259, 264 ( 2006) ( citing 1 1921( a)). The touchstone of
judicial
order or record.")
definition
of " public
statutory interpretation is that where a statute is unambiguous, the [** 356] ju-
the
Pa. C.S.
statute
of
legislative in
264. Words
accor-
be
construed
dance
usage. words
need
with
Pa. C.S.
statute
1903( a).
are clear,
When the
there is
no
of a
the definition
A public re-
to
ing
of a statute.
Commonwealth
v, McClintic,
909 A. 2d
1241, 1245 ( 2006) ( citing Sternlicht v. Sternlicht, 583 Pa. 149, 876 A. 2d 904, 909 ( 2005)
and
Ramich
v.
Workers'
Comp.
statute resort
is deemed
to
principles
ambiguous,
of
however,
construc-
tion is
appropriate. v.
statutory 1 Pa.C.S.
1921( c);
id. at 67. 102( emphasis added). Notably, Section 708 of the Act not only imposes the burden upon the Authority to prove by a preponderance of the evidence that a record
Commonwealth
Colville
v.
Allegheny County
is
exempt
from
358]
in Com,
v.
tains a very extensive list of exemptions. Id. at 67. 708( a) through ( b). Nonetheless, the Authority does
not argue that any of these well-defined exemptions prevent disclosure in this case. Instead, it argues that these
every
statute. "
If
to give
effect
1921( a).
Sterling
Acceptance Co.
initial task is to
relevant with
portions of
the
law.- In reviewing the new Right-to- Know Law it is noteworthy that the legislature did not specifically list the statutes referred to by the Authority under the Section
67. 708 exemptions where it listed in great detail some of the other circumstances where records were not: to be disclosed. This,
of course, creates [*
guity
and/ or
can
Access to
public records
ously governed by a law that was enacted In 1957. 65 PS. 661 through 664( Purdon' s [* 5] 2000). This raw
was
tion statutes referred to by the Authority prevent disclosure under the Right-to- Know Law. Furthermore, in re-
the
new "
effective
2008, 65 P. S.
The
67. 101
et
seq. ( Purdon' s
to
law
was
expand and
its
prohibition
that the
intended
use
Page 3
2010 Pa. Dist.&
Cnty.
of
the public
and
record
67.305( a) generally
the
the
is generally irrelevant. Id. at 67. 302( b). Thus, the Authority cannot
to
a record even
rate and distinct interests. First, the consumer from unfair, deceptive and/ or abusive debt collection practices.
deny
access
requestor will
Authority
The
do something with the information that could not itself do, such as in this situation.
are
the
following
debt 1.
collection statutes:
By
creditors. -
Uniformity
et
73
P. S, 22 70. 1
seq.
was enacted by Congress to curb abuses by debt collec 1692( a). Thus, the FDCPA debt
to those [*
was created
to
eliminate abusive
collection practices,
to
prevent
a competitive advantage
8]
who were
using
to
sumer [*
against
abusive
debt
tices, Id. at
duct
by
debt
is to harass,
oppress, or abuse
with a collection of a
competent jurisdiction or as reasonably necessary to effectuate a postjudgment judicial remedy, a creditor may not communicate, in connection with the collection
specifically
prohibits:
3) The
ers who
publication of a refused
list
of consum-
allegedly
to pay debts,
or
except
to
a consumer
reporting agency
of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, a debt collector, the attorney of the debt collector or the attorney of the
creditor.
to
of a
by
the debt
third
parties without
the
con-
sent of the
or the
court of competent
jurisdiction," if the
is
debt. Without limiting the general application of the [** 361] foregoing, the following is a violation of this paragraph:
these
prohibitions
is to
the
debt
col-
lection
practices.
All
of
prohibited
are
illegal
only if done" in connection with the collection of a debt" Therefore, under a plain reading of the FDCPA, the re-
legedly
debts,
refused
to
a
pay
con-
except
to
lease
count
of
information
by
the
Authority
of
delinquent
ac-
pose of complying with the Right-to-Know Law, not for the purpose of collecting on the debt. Obviously, Congress was not and is not attempting to prevent the public' s access to public records, even though the consequence
may [**
360]
pub-
Page 4
Cnty.
and (
iv)(iii) ( Emphasis
As in the federal
are
Pennsylvania' s
prohibitions
triggered
by
communication
as
publishing lists
of
tivity is done " in connection with the collection of any debt." Once again, the release of information pursuant to
the Right- to- Know [* 11]
statute
362] In conclusion, the Authority must disclose the delinquent account records requested by the Respon-
is
not
in
conflict with
Pennsylvania' s consumer protection statute which is designed to prohibit and curt deceptive unfair debt collect,
the Pennsylvania or
Federal
vio-
this 26th
day
of
[*
12] January.
it in fact be
lating
the
such statutes,
right
by
public' s
to access
over, the
ultimately be
the
by
and
the
requestor not
is
may factor in
to
foregoing
may
be
a reason
deny
information to the Respondent, Courtney L. Anderson, within thirty( 30) days of the date of this Order.
BY THE COURT:
disclosure.
holding of this court that there is no ambiguity in either the FDCPA and the FCEUA as
the
Accordingly, it is
relate
they
to disclosure of Information
pursuant
to the
Pennsylvania Right-to- Know Law. The release of the overdue account information by the Authority does not