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Johnson, Duffie, Stewart & Weidner

Uttl ; ER # ND C 0 U N T Y

By:

Michael J.

Cassidy

ENNSYLVANIA
Attorneys for Petitioner

I. D. No. 82164 301 Market Street
P. O. Box 109

Lemoyne, Pennsylvania 17043- 0109
717) 761- 4540 mjc @jdsw. com

BOROUGH OF LEMOYNE,
Petitioner

IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV
DOCKET NO. 2013 -

NIA

S

v.

CIVIL ACTION - LAW PENNSYLVANIA OFFICE OF OPEN RECORDS and CATE BARRON, VICE PRESIDENT OF CONTENT FOR THE
PATRIOT- NEWS / PENNLIVE,

APPEAL FROM FINAL DETERMINATION OF

THE PENNSYLVANIA OFFICE OF OPEN
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 &
of

Weidner, appealing a final determination of the Pennsylvania Office
filing this Petition for Review pursuant to Section
67. 1302, and in support thereof, avers as follows:

Open Records ( Docket No.: AP 2013- 1738),
of

1302

the Right- to- Know Law, 65 P. S. §

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
Extension

customer information

is prohibited from
et

publication

under the

Fair Credit

Uniformity

Act, 73 P. S. §§ 2270. 1,

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. PennLive,

Respondent, Cate Barron, is Vice President of Content for The Patriot- News /
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
submitted a

for The Patriot- News / PennLive,

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
"A

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,

as the information was prohibited from being
et

published and

The Fair Debt Collection Practices Act, 15 U. S. C. § 1692,
Extension

seq. (" FDCPA")
and

The

Fair Credit

Uniformity

Act, 73 P. S. § 2270. 1,
to disclosure
under

et

seq. (" FCEUK),

therefore

requested records were not subject

the RTKL.'

A true and correct

copy of Borough' s response is attached hereto as Exhibit B.
9.
On September
of

16,

2013,

Ms.
of

Barron

submitted
request.

an

appeal

to the

OOR,

challenging the Borough

Lemoyne' s denial

her RTKL

A true and correct copy of

Ms. Barron' s appeal to the OOR is attached hereto as Exhibit C.

10.
appeal and

On September 17, 2013, the OOR issued an Official Notice of Ms. Barron' s
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 from being published under the Fair Debt Collection Practices Act, 15 U. S. C. § 1692, et seq.
and

prohibited

FDCPA")

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
No. 2009- 3539, 2010 Pa. Dist. &

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.

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
and

the OOR' s Orders

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.
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."

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,
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

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
Thus, if Petitioner,

a violation of

the Unfair Trade Practices and Consumer Protection Law), and Section 8 of the
and

Unfair Trade Practices

Consumer Protection Law, 73 P. S. § 201- 8( b).

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.
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,

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 public] of

a

debt"

as we do not view financial recordkeeping at a

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
of

Re:

Appeal

the

City
2010)

of

Sharon

Sanitary Authority, 2010 Pa.

Dist. &

Cnty. DEC LEXIS 30

Mercer Com. PI.

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
County,
Pennsylvania, in the
matter of

Common Pleas of Mercer

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. 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.

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.
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.

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)
consequence
connection

A creditor may not engage in any conduct the natural
of which

is to harass,
of

oppress or abuse any person in
Without limiting the general

with

the

collection

a

debt.

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
publication" as

not

define the term "

publication."

Blacks Law Dictionary

defines the term "
to

follows: " to make public; to make known to people in general;

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
debt lacks

response to a RTKL request because the information is not being disclosed directly in
connection with

the

collection

of a

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
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

a

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.

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.
of

This in turn would constitute a judicially- created exception to the FCEUA
a

that

publication

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:
585751

October 29, 2013

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 made

to the best

of

my knowledge, information
to the
penalties of

and

belief.

I understand that false

statements

herein

are subject

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
L I V E

M)e patriot News
PA M E, 0 1 A G R 0 H P

Cate Barron Editor

ebarron@pennlive.com

717- 255-8165

Kathryn A. Morrow

Borough Secretary/ Right to Know OfficerBorough 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 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

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
RICHARD W. STEWART

BAFnE B. GEHRLEIN ANTHONY I LUCIDO L A W
0 F

EDMUND G. MYERS DAVID W. DELUCE
JOHN A. STATLER JEFFREY B. RETTIG

F I

C E S

CAROLYN B. MCCLAIN JOHN A. LUCY
ULYSSES S. WILSON

MARK C. DUFFIE JOHN R. NINOSKY
MICHAEL

J.

CASSIDY

SON DU FFIE

JULIA A. MORRISON MATTHEW RIDLEY OF COUNSEL HORACE A. JOHNSON

MELISSA P. GREEVY
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
Right-to- Know Request/ Lemoyne Borough - Delinquent Account Information

Re:

Dear Ms. Barron:

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.

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
1A
WiI.JDSW.COM

P.O. BOX 109

LEMOYNE, PENNSYLVANIA 17043- 0109
FAX: 717. 761. 3015 MAIL @JDSW.COM

717. 761. 4540

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.

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.

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
OFFICE. OF OPEN REC.ORUS

RECEIVED
SEP 16 2013
OFFICE OF OPEN RECORDS

RIGUT TO KNOW LAW. APPEAL

DENIAL OR PARTIAL DENIAL Oftee 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

Cate Barron, The Patriot-News/ PennLive

Address/ City/ Statelzip:

ec no ogy HarKway, S I L MO, Mec5anicsburg, PA 1105.0
Fax
request.

Request

submitted

by:

Mait

16

E- mail

In- Person ( Please check one)
8456

Date,of Right to Know
Telephone
and

30 August 2013

fax

number,

71 "

Jute of Agency Respponse: 10 September 2013 dgii6land @pens ive.com
T;.
mail:

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

Office appealing that denial to the

of

Open Records ( OOR), and I am

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

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 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

your request, attach•additional pages

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.

el I have attached a copy of my request for records.( REOUIRED)
I have
attached

d I have attached a copy ofall responses fiom the agency regardinf,,my request. (REQUIRED)
any letters or
notice

tending the agency' s tim( to respond to my request.
must be signed)
this form
and. an.

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

September 17, 2013

Via E-Mail only.:
Cate Barron Vice-President., Content

Via E-Mail only-.
Kathryn A. Morrow

Open Records Officer
Borough of Lemoyne 300

Group 202 Technology Parkway, Suite Mechanicsburg, PA 17050
ebarron@pennlive, c. om

Pennsylvania Media

510 Herman Avenue Lemoyne, PA 17043
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 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

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

openrecords. state. pa. us http-.,//

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

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

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." .

See Allegheny:County Dept ofAdmin. Servs. v. A Second Chance, Inc., 13

2011). Failure to participate in an appeal before A.3d 1025, 1042 ( Pa. Commw. Ct. -

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
Commonwealth of Pennsylvania

CONTACT INFORMATION:

Office of Open Records

Commonwealth Keystone Building
400 North Street, 4" Floor

Harrisburg, PA 17120- 0225
PHONE:

717) 346- 9903

FACSIMILE:
E-MAIL:
Preferred method of contact
and submission of

717) 425- 5343
kyapplegat@pa.gov

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.

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

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 WSIPENNLIV E,
Complainant
V.

Docket No.: AP 2013- 1738

BOROUGH OF LEMOYNE,
Respondent

INTRODUCTION
Cate Barron, Vice President
Content for The Patriot- News/ PennLive (" Requester"),

of

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. §§
P. S. §§ 1692
et

seq. (" FDCPA"),

and the Fair Credit Extension Uniformity Act, 73

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 ...
activities of

is to empower citizens by affording them
SWB Yankees L.L. C. v.

access

to information concerning the

their government."

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
actions."

accountable for their

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.
is

Upon receipt of a request, an agency is required to assess whether a record
its
possession,

requested

within

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
the RTKL exempts

of

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 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).

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.
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).

2010 Pa. Dist. & held:
T] he

Cnty.

Specifically, the Court

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
under

obligation

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 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.

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
Section 1303
of

court rules as per

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, Respondents

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 purchased sewer services in the City of Sharon thereafter. In addition, the Authority is mandated to collect past

COUNSEL:

[* 1]

For Petitioner: William J. Madden,

Esquire, Sharon, PA.

and future debts for such services.
For Respondents: William G. McConnell. Jr., Esquire, Sharon, PA. JUDGES: Christopher J. St. John, Judge. OPINION BY: Christopher J. St. John
OPINION 354]

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

various articles in The Herald about the delinquent ac-

owed to the Authority. As part of her investigative reporting, Ms. Anderson submitted a recounts [**

355]

quest on June 3, 2009 as an individual, pursuant to Penn-

sylvania's Right-to-Know Lew, seeking access to Jelinquent sewer accounts, including the names and addresses

MEMORANDUM OPINION AND ORDER

of those individuals who were delinquent. Obviously,
there Is a strong likelihood that she would write follow-

ST. JOHN, J. A
ple

sewer

with

authority denied delinquent sewer
the
names,

a request accounts.

for

a

list

of peo-

up articles disclosing various information including the
names of those individuals who are delinquent, as she

The

authority
was con-

wanted

to

release

but its attorney
consumer

toss before and after the de novo hearing on her request.
The Authority denied her request upon the sage advice of
Its solicitor.

cerned

that it would violate
the authority

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

statutes are not

in

conflict with

Pennnovo

ever, that it will be liable under various consumer protection statutes.

sylvania' s new

Right- to- Know Lew. Hence, the de information.

appeal will be DENIED and the authority will be ordered
to
release

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

disclosure of this delinquent account information. This is

an issue of first impression that can only be resolved by
comparing the language in the respective statutes. Chief

financial

records

ft Inherited from the

City

re-

garding

uncollected

debt for

prior sewer accounts, and

to

Page 2 2010 Pa. Dist.&

Cnty.

Dec. LEXIS 30, *;

10 Pa. D. & C. 5th 353, **

preting

Justice Castille aptly defined the statutes as follows: The

court's rote when

inter-

access to public records. Accordingly, the new law cre-

ated the presumption that a" record" possessed by a local
agency " shall be presumed to be a public record" Id. at§
67.305( a). The legislature, however, provided that this

statutory interpretation is to determine the intent of the General Asobject

of

presumption is removed If the record is exempt under

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.")

decree." Id. § 67. 102 ( See
The legislature also im-

definition

of " public

statutory interpretation is that where a statute is unambiguous, the [** 356] ju-

posed the burden of proving that a record was exempt
upon the government

agency. Id.§§ 67. 708( a)( 1). '

diciary may not Ignore the plain language
under

the

Pa. C.S. §
statute

pretext of pursuing its spirit," 1 1921( b), for the language of a

1

It is uncontested that the Authority is an
agency" and that the information sought Is a " re-

is the best indication
at

of

legislative in

cord" and a" financial record' as at of those learns
are defined in Section 67. 102.

intent. Weaver, 912 A. 2d
end phrases should

264. Words
accor-

be

construed

dance
usage. words
need

with

their common and approved

The solicitor for the Authority posits that the list of
past due account holders is exempt from disclosure under
part of

I

Pa. C.S. §
statute

1903( a).
are clear,

When the
there is
no

of a

the definition

of a " public record."

A public re-

to

look [* 4] beyond the plain meanSee.
e. g..

cord is defined as follows:
Public [*

ing

of a statute.

Commonwealth

v, McClintic,

589 Pa. 465,

909 A. 2d

6] record. A record, including

1241, 1245 ( 2006) ( citing Sternlicht v. Sternlicht, 583 Pa. 149, 876 A. 2d 904, 909 ( 2005)
and

a financial record, of a Commonwealth or
local agency that: ( 1) is not exempt under Section 708; ( 2) is not exempt from be-

Ramich

v.

Workers'

Comp.
statute resort

Appealed. ( ScnatZ Elec. Inc.), 564
a

ing disclosed under any other federal or
state law or regulation or judicial order or

Pa. 656, 770 A. 2d 318, 322 ( 2001)). If

is deemed
to
principles

ambiguous,
of

however,
construc-

decree; or ( 3) is not protected by a privilege

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

Packer, 568 Pa. 481,

798 A. 2d 192, 198( 2002).

Colville

v.

Allegheny County

Retirement Board, 592 Pa.
added);

is

exempt

from

public access, [**

358]

but it also con-

433, 926 A. 2d 424. 430- 31 ( Pa. 2007) ( emphasis
quoted with approval

in Com,

v.

Cox, 603 Pa. 223, 983

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

A. 2d 666. 703 ( Pa. 2009). Moreover, the
possible,

court must construe

every

statute. "

If

records cannot be disclosed because they do not fall un-

to give

effect

to all of its provisions." I Pa.C.S.
v.

der the definition for a public record because they are
already exempt from disclosure under federal and state

1921( a).

Sterling

Acceptance Co.

Grimes, 194 Pa.
the

Super. 503, 168 A.2d 600 ( Pa.Super. 1961). Thus, the
court' s

initial task is to

compare and review

relevant with

portions of

Pennsylvania' s Right- to- Know Law if they

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 [*

consumer protection statutes to see

guity

and/ or

can

if there is any ambibe interpreted in pari materia. in Pennsylvania
was previ-

Access to

7] the inference that

public records

ously governed by a law that was enacted In 1957. 65 PS. §§ 661 through 664( Purdon' s [* 5] 2000). This raw
was

the legislature had not intended that the consumer protec-

tion statutes referred to by the Authority prevent disclosure under the Right-to- Know Law. Furthermore, in re-

substantially by Law which became 357]
revamped

the

new "

Right- to- know

effective

2008, 65 P. S. §§
The

67. 101

et

seq. ( Purdon' s
to

February 14, Supp. 2009).
streamline

viewing the consumer protection statutes it is important
to view those statutes in light of their stated legislative intent, and the presumption of disclosure in the Right-toKnow Law
as well as

goal of the new

law

was

expand and

its

prohibition

that the

intended

use

Page 3
2010 Pa. Dist.&

Cnty.

Dec. LEXIS 30, *;

10 Pa. D. & C. 5th 353, **

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

lished. These statutes were enacted to protect two sepa-

rate and distinct interests. First, the consumer from unfair, deceptive and/ or abusive debt collection practices.

deny

access

if they know that

requestor will

Authority
The

do something with the information that could not itself do, such as in this situation.
are

Secondly, the public's right to access information about

the financial records of local agencies. Similarly, the
Commonwealth of Pennsylvania enacted the FCEUA to

applicable consumer protection statutes

the

following

debt 1.

collection statutes:

declare what constitutes " unfair methods of competition
and unfair or deceptive acts or practices with regard 1: 0
the
collection of

The Fair Debt Collection Practices

debts." 73 P. S. § 2270.2. The relevant

Act( TDCPA"), 15 U.S. C. §§ 1692 etseq.;
and

portions according to the Authority of Pennsylvania's
statute are as follows:
b)

2. The Pennsylvania Fair Credit Extension

By

creditors. -

With respect to debt

Uniformity
et

Act (" FCEUA"),

73

collection activities of creditors in this Commonwealth, It shall constitute an un-

P. S, § 22 70. 1

seq.

fair or deceptive debt collection act or
practice under this act if a creditor vio359]
tors. 15 U.S.C.

The Fair Debt Collection Practices Act

lates any of the following provisions:

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

3) Except as provided in paragraph
1)
without the prior consent of the Ion-

prevent

a competitive advantage

8]

who were

using
to

sumer [*

abusive collection practices, and to create state action
protect consumers

10] given directly to the creditor
of a court of

against

abusive

debt

or the express permission

collection pracnot permit con-

tices, Id. at§

1692( e). The FDCPA does
collector

duct

by

a

debt

the natural consequence of which

is to harass,

oppress, or abuse

with a collection of a

any person in connection debt." Id. at§ 1692d. This section

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

meeting the requirements of Section 1681 a( f) or 168lb( 3) of this title."
persons

4) A creditor may not engage In any
conduct the natural consequence of which

is to harass, oppress or abuse any person
The FDCPA in
also prohibits certain communications

connection with the collection

of a

by

the debt

collector with consumer

third

parties without

the

con-

sent of the

or the

express permission of the
communication

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:

in connection with the collection of any debt" id. at §
1692c( b) (
tent
of emphasis added).

The clear language and Inprevent abusive acts

these

prohibitions

is to
the

debt

col-

iii) The publication of a

lection

practices.

All

of

prohibited

are

illegal

list of consumers who al-

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-

sumer reporting agency....

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, Congress was not and is not attempting to prevent the public' s access to public records, even though the consequence

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)
added).

and (

iv)(iii) ( Emphasis

violate the plain language and/ or the legislative intent

underlying both remedial statutes. The court need not
statute.

As in the federal
are

Pennsylvania' s

prohibitions

therefore look beyond the plain meaning of these statutes.

triggered

by

communication

or other practices, such ac-

as

publishing lists

of

delinquent debtors, only if this

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-

dent. HENCE, THIS ORDER:
ORDER AND NOW,
on

is

not

in

conflict with

Pennsylvania' s consumer protection statute which is designed to prohibit and curt deceptive unfair debt collect,

tion practices. The Authority clearly would not be attempting
to
subvert either

the Pennsylvania or

Federal
vio-

this 26th

day

of

[*

12] January.

consumer protection statutes, nor would

it in fact be

2010, IT IS HEREBY ORDERED AND DECREED that

lating
the

such statutes,
right

by

public' s

to access

releasing information pursuant to its fmanciall records. Morereleases not a

the appeal of the City of Sharon Sanitary Authority is
DENIED. IT IS FURTHER ORDERED mat the City of Sharon Sanitary Authority shall release the requested

over, the

fact that the information that it
published analysis

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

s/ Christopher J. St. John, J. Christopher J. St. John, Judge

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

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