lemoyne appeal of office of open records decision

8/13/2019 Lemoyne appeal of Office of Open Records decision

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Supreme Co, nnsylvania

COUr O C0 11n>> o leas For Prothonotary Use Only:

Docket No: n

toUCounty J J

fn

The information collected on this form is used solely fo r court administration purposes. This form does not

supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court.

Commencement of Action:

S ®Complaint 0 Writ of Summons x Petition

Transfer from Another Jurisdiction 1 71 Declaration of TakingE

CLead Plaintiffs Name: Lead Defendant' s Name:

BOROUGH OF LEMOYNE PA OFFICE OF OPEN RECORDST

Dollar Amount Requested: ® within arbitration limitsI Are money damages requested? ® Yes El No

check one) r—i outside arbitration limits0

N Is this a Class Action Suit? Ye s J No Is this an MDJAppeal? 13 Yes M No

A Name of Plaint if f /Appellant' s Attorney: Michael J. Cassidy, Esquire

F

13 Check here if you have no attorney( are a Self-Represented [Pro Sel Litigant)

Nature of th e Case: Place an X to the left of the ONE case category that most accurately describes your

PRIMARY CASE. If you are making more than one type of claim, check t he o ne thatyo u consider most important.

TORT( do not include Mass Tort) CONTRACT( do not include Judgments) CIVIL APPEALS

Intentional 0 Buyer Plaint if f Administrative Agencies

Malicious Prosecution 0 Debt Col lect ion: Credit Card Board o f Assessment

Motor Vehicle Debt Collection: Other Board of Elections

Nuisance 3 Dept. of TransportationPremises

Liability 0 Statutory Appeal: OtherS [ 3 Product Liability( does not include

Emass tort)

0 Employment Dispute:

0 Slander/Libel/ DefamationDiscrimination

C ® Other:M Employment Dispute: Other Zoning Board

TEl Other:

Office of Oren

I 0 Other:ReCnrc3S

OMASS TORT

0 Asbestos

N ® Tobacco

Toxic Tort- DES

Toxic Tort - Implan tR E A L, P R O P E R T Y MISCELLANEOUS

Toxic Waste

B ®

Other:0 Ejectment Common Law/ Statutory Arbitration

Eminent Domain/ Condemnation Declaratory JudgmentGround Rent Mandamus

n Landlord/Tenant Dispute Non-Domestic Relations

Mortgage Foreclosure: Residential Restraining OrderPROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial ® Quo Warranto

j 12 Dental Eil Partition 13 Replevin

Legal Quiet Title 3 Other:Medical r-i Other:

13 Other Professional:

Updated 11112011



Ji elk \ iJ Itv( }Yf :

C ., a

Johnson, Duffie, Stewart & Weidner Uttl ; ER # ND C 0 U N T Y

By:Michael J.

Cassidy

ENNSYLVANIA

I. D. No. 82164 Attorneys for Peti tioner

301 Market Street

P. O. Bo x 109

Lemoyne, Pennsylvania 17043- 0109

717) 761- 4540

mjc @jdsw. com

BOROUGH OF LEMOYNE, IN THE COURT OF COMMON PLEAS

CUMBERLAND COUNTY, PENNSYLV NIA

Petitioner

SOCKET NO. 2013 -

v .

CIVIL ACTION - LAW

PENNSYLVANIA O FF IC E O F OPEN

RECORDS and CATE BARRON, VICE APPEAL FROM FINAL DETERMINATION OF

PRESIDENT OF CONTENT FO R TH E THE PENNSYLVANIA OFFICE OF OPEN

PATRIOT- NEWS / PENNLIVE, RECORDS

Respondents

PETITION FOR REVIEW OF THE BOROUGH OF LEMOYNE

FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS

AND NOW comes Borough of Lemoyne, by and through its undersigned attorneys,

Johnson, Duffie, Stewart & Weidner, appealing a final determination of the Pennsylvania Office

of Open Records ( Docket No.: AP 2013- 1738), filing this Petition for Review pursuant to Section

1302 of the Right- to - Know Law, 65 P. S. § 67. 1302, and in support thereof, avers as follows:

I. INTRODUCTION

1. This Petition arises out of Respondent Office of Open Records' ( OOR ) issuance

of a final determination on October 3, 2013, in which the OOR found that Petitione r, the

Borough of Lemoyne, is required to disclose delinquent sewer account customer information

under the Right- to- K no w L aw , 65 P. S. §§ 67 . 101, et seq. ( RTKL ). This Court s hould grant the

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Borough' s Petition and overturn the OOR' s Determination because the requested delinquent

sewer account customer information is prohib ited from pub lication under the Fair C redit

Extension

UniformityAct, 73 P. S. §§ 2270. 1, e t seq. ( FCEUA ), an d therefore is no t 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

Commonweal th 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 propert ies located within the municipal boundaries of the Borough of

Lemoyne.

4. Respondent, OOR is an office organized within the Pennsylvania Department of

Community and Economic Development pursuant to the RTKL. The OOR maintains a business

address at Commonwealth Keystone Building, 400 North Street, Plaza Level, Harrisburg,Pennsylvania 17120- 0225.

5. Respondent, Cate Barron , is Vice President of Content for The Patrio t- News /

PennLive, which maintains an office address of 2020 Technology Parkway, Suite 300,

Mechanicsburg, Pennsylvania 17050 ( Cate Barron and The Patrio t- News / PennLive hereinafter

sometimes collectively referred to as Requester ).

B. The Right-to - Know Request.

6. On August 30, 2013, Cate Barron, in he r capacity as Vice President for Content

fo r The Patriot- News / PennLive, submitted a RTKL Request to B oro ug h. A tru e an d correct

copy of the Request is attached hereto as Exhibit A.

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7. Respondent, Cate Barron' s RTKL Request sought production of the following

documents: A listing of sew er accounts that were 90 days or m ore past- due as of July 31,

2013, including at minimum the nam e on the account, number of days past due, and the pas t-due balance. See, Exhibit A.

8. By letter dated September 10, 2013, the Borough of Lemoyne, by and through its

Solicitor, Michael J. Cassidy, responded to Ms. Barron and advised her that the Borough would

not be releasing the requested documents, as the information was prohibited from being

published under Th e Fair Debt Collection Practices Act, 15 U. S. C. § 1692, e t seq. ( FDCPA )

and The Fair Credit Extension Uniformity Act, 73 P. S. § 2270. 1, e t seq. ( FCEUK) , and

therefore requested records were not subject to disclosure under the RTKL.' A true and correct

copy o f Borough ' s response is attached hereto as Exhibit B.

9. On September 16, 2013, Ms. Barron submitted an appeal to the OOR,

challenging the Borough of Lemoyne' s denial of he r RTKL request. A true and correct copy of

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

10. On September 17, 2013, the OOR issued an Official Notice of Ms. Barron' s

appeal and invited both parties to supplement the record. A true and correct copy of the OOR' s

Notice of Appeal is attached hereto as Exhibit D.

11. Neither the Borough nor Ms. Barron supplemented the record as the matter was

pending before the OOR.

The Borough of Lemoyne denied the RTKL request on the basis that the requested information was

prohibited from being published under th e Fair Debt Col lection Practices Act, 15 U. S. C. § 1692, et seq.

FDCPA ) and the Fair Credit Extension Uniformity Act, 73 P. S. § 2270. 1, et seq. ( FCEUK). As set forth

more fully in this Petition for Review, the Borough of Lemoyne brings this appeal under the FCEUA only.The Borough o f Lemoyne is abandoning its argument that the requested documents are prohib ited frombeing published under the FDCPA. The F DC PA does not apply to creditors who are in the bus iness 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 isto harass, oppress, or abuse and person in connection with th e collection of a debt). See also, Mazza v.

Verizon Wash. D. C., Inc., 85 2 F. Supp. 2d 28 ( DC Dist. Col. 2012) ( holding that F air D ebt CollectionPractices Act is not applicable to creditors who are in th e business of collecting their own debts). The

FDCPA does not apply to the Borough of Lemoyne, to the extent that the Borough o f Lemoyne is a

creditor collecting its own debts, and there fore the FDCPA provis ions prohib iting debt collectors frompublishing a list of consumers who allegedly refuse to pay debts at 15 U. S. C. § 1692d( 3), are inapplicable.

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C. The OO R Issues a Final Determination that Delinquent Sewer Records are

Su bje ct to D is clo su re u nd er th e 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 o f the Final Determination is attached hereto as Exhibit E.

13. In its Final Determination, the OO R determined that the FDCPA and FCEUA do

not prohib it de linquent sewer account in formation from being disclosed in response to a RTKL

Request.

14. In reaching its Final Determination that delinquent sewer account information is

subject to disclosure under the RTKL, the OOR cited to and adopted the reasoning in the case

of In Re: Appeal of the City of Sharon Sanitary Authority, No. 2009- 3539, 2010 Pa. Dist. & Cnty.

Dec. LEXIS 30 ( Mercer Com. PI. Jan. 26, 2010). A copy of In re: Appeal of the City of Sharon

Sanitary Authority is attached hereto as Exhibit F.

1111. OOR' S FINAL DETERMINATION MUST BE OVERTURNED BECAUSE THE OOR

MISINTERPRETED AND MISAPPLIED THE CONSUMER PROTECTION PROVISIONS

SET FORTH IN THE FCEUA WHICH PROHIBIT THE PUBLICATION OF THE NAMES

OF CONSUMERS WHO ALLEGEDLY REFUSED TO PAY DEBTS.

A. Judicial Review of OOR's Final Determination.

15. In rendering its F inal Determination that the Borough is mandated to disclose the

delinquent sewer account information under the RTKL, the OOR either misapplied the law or

made conclusions based on assumptions not supported by facts in the record before it.

16. A reviewing court exercising its appellate jurisdiction may independently review

the OOR' s Orders and may substitute its own findings of fact fo r that of the [ OOR]. Bowling v.

OOR, 990 A. 2d 813, 818 ( Pa. Cmwlth. 2010), appeal granted 609 Pa. 265, 15 A. 3d 427 ( 2011).

17. The Court' s decision shall contain findings of fact and conclusions of law based

upon the evidence as a whole. 65 P. S. § 67. 1301( a).

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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

byprivilege. 65 P. S. § 67. 102 ( definition of public record ).

19. Therefore, the threshold and only issue before this Court is whether the

delinquent sewer account information requested by Ms. Barron and The Patriot- News /

PennLive is exempt from being disclosed under an y 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 pert inent sect ions of the FCEUA.

B. Reasons fo r 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 du e accounts. However, Petitioner, Borough of

Lemoyne, is fearful that it could be held liable under the FCEUA, which provides for a civil

penalty of up to $ 1, 000.00 per violation or up to $ 3, 000. 00 per violation if the victim is 60 years

of age or older. See, 73 P. S. § 2270. 5( a) ( providing that violations of the FCEUA shall constitute

a violation of the Unfair Trade Practices and Consumer Protection Law), and Section 8 of th e

Unfair Trade Practices and Consumer Protect ion Law, 73 P. S. § 201- 8( b). Thus, if Petitioner,

Borough of Lemoyne, were to release the requested documents in response to a RTKL request,

and if a court of competent jurisdiction were to later determine that the release of the listed

customers holding delinquent sewer accounts was a violation of the F CEUA, the B oro ug h of

Lemoyne could face civil penalties of up to $ 3, 000.00 for each customer name appearing in the

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delinquent account report. Consequently, Petitioner, Borough of Lemoyne, is seeking a judicial

determination of whether the requested information is subject to disclosure under the RTKL.

23. Financial records maintained by a local agency generally are a matter of public

concern. Had the Requester requested a spreadsheet listing only the delinquent amounts,

without linking names and addresses to those delinquent accounts, that in formation 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:

Th e OOR has previously examined the applicability of FCEUA to delinquent

utility information. In ho ld in g the FCEUA did not prohibit the release of

delinquent sewer account information, the OOR found:

Without exp lic it language requir ing confidentiality, the FCEUA's scope

reaches only methods and pract ices with regard to the collection of debt

and prohibits harassment, oppression and abuse in connection with the

collection of a debt as we do not view financial recordkeeping at a

public] agency to be an act iv ity associated with debt collections,

delinquent sewer accounts are no t 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 com petent tribunal capable of

determining the scope and applicability of consumer protection provisions under FCEUA.

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26. In support of its Final Determination, Respondent, OOR, cites to the case of In

Re: Appeal of the City of Sharon Sanitary Authority, 2010 Pa. Dist. & Cnty. DE C LEXIS 30

Mercer Com. PI. 2010)

as legal authority in support of its conclusion that release of thedelinquent sewer account information would not be a violation of FCEUA.

27. The Opinion issued by The Honorable Christopher J. St. John of the Court of

Common Pleas o f Mercer County, Pennsylvania, in the matter of In Re: Appeal of the City of

Sharon Sanitary Authority does not establish binding legal precedence throughout the

Commonwealth of Pennsylvania, and therefore Petitioner, Borough of Lemoyne, cannot

justifiably rely upon that Opinion as a basis for d isclosing the requested delinquent sewer

account records and avoiding potential liability under the FCEUA.

28. The FCEUA establishes, among other things, what are considered to be unfair or

deceptive acts or practices with regard to the collection of debts. See, 73 P. S. § 2270. 2.

29. In terms of unfair or deceptive acts or practices, the FCEUA draws a distinction

between debt collectors and creditors.

30. The FCEUA defines debt collector as a person not a creditor conducting

business within the Commonwealth, acting on behalf of a creditor, engaging or aiding directly orindirectly in collecting a debt owed or alleged to be owed a creditor or ass ignee 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 th e 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).

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32. The FCEUA defines creditor as follows:

Creditor.'

A person, including agents, servants or employees conductingbusiness 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 ( defini tion of creditor ).

33. Petitioner, Borough of Lemoyne, is a creditor subject to the FCEUA to the

extent that the Borough is owed a debt by its customers for sewage treatment services.

34. The FCEUA def ines debt to be an actual or a lleged past due obligation, claim,

demand, note or other similar liability of a consumer to pay money, arising ou t 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 ( definit ion 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 activit ies of

creditors in this Commonwealth, it shall constitute an unfa ir or deceptive debt

collection act or practice under the Act if a creditor violates any of the following

provisions:

4) A creditor may not engage in any conduct the natural

consequence of which is to harass, oppress or abuse any person in

connection with the collection of a debt. Without limiting the general

application o f the fo rego ing, the following conduct is a violation o f this

paragraph:

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iii) The publication of a list of consumers who allegedly

refuse to pay debts, except to a consumer report ing agency or to

persons meeting the requirements o f 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 wh ich 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. Th e FC EU A does not de fin e th e term publication. Blacks Law Dictionary

defines the term publication as follows: to make public; to make known to people in general;

to bring before public; to exhibit, display, disclose or reveal. Blacks La w 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. Th e argument that delinquent sewer account informat ion may be disclosed in

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

connection with the collection of a debt lacks merit. The FCEUA should not be so narrowly

construed so as to only regula te creditor behavior when the creditor is actively engaged in the

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process of collecting a debt. Given that the F CE UA 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 respec t to

the deb t.

40. For a court to hold tha t de lin qu en t sew er account informat ion 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 FC EUA 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, th at Th is C ou rt d isa gre es th at 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 ab use th ose

individuals, the FCEUA nonetheless specifically states that it is a violation of the Act to publish alist 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 o f nam es

and addresses and debts owed by consumers, an d the creditor (or debt collector) could release

the information to the third party w ith impunity, since the information is being released fo r

reasons other than fo r 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. Th e OOR' s

interpretat ion of the FCEUA is illogical and inconsistent with the intent of the law.

43. If This Honorable Court were to determine that the requested delinquent sewer

account information is subject to disclosure under the RTKL, it would enable local agencies and

third parties to hide behind the veil of the RTKL protection and abuse the RTKL to justify the

release of consumer debt information, which otherwise would be protected from disclosure

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

that publication of a list of consumers who allegedly refused to pay debts, is permissible,

provided the creditor is a local agency pub lishing the information in response to a RTKL

request.

44. If this Court determines that Petit ioner, 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 a lso 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 Determ ination, 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.

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46. The documents requested by Requester, including the names and address of

customers with delinquent sewer accounts, did not fa ll w ith in the defin ition of public records in

the RTKL, because this information is prohibited f rom disclosure under th e F CE UA . 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 Lem oyne' s Petition, finding that delinquent sewer account information,

including the nam es 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. CassidyCounsel for Petitioner, Borough of Lemoyne

DATE: October 29, 2013

585751

12



VERIFICATION

I Kathryn A. Morrow, Secretary and Right- to- Know Officer of Borough of Lemoyne, the

Petitioner in the foregoing Petition for Review, as such I am authorized to make this Affidavit on

Petitioner's behalf and have knowledge of the facts set fo rth in the foregoing and that said facts

are true and correct to the best of my knowledge, information and belief. I understand that false

statements made herein a re subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn

falsification authorities.

Kathryn A. Mo row

13



CERTIFICATE OF SERVICE

AND NOW, this29th

day of October, 2013, the undersigned does hereby cert ify that he did

this date serve a copy o f the fo rego ing document upon the fol lowing persons by depositing in the

United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:

Commonwealth of Pennsylvania

Office o f Open Records

Commonwealth Keystone Building400 North Street, P laza Level

Harrisburg, P A 1 71 20 - 0225

Cate Barron, Vice President, Content

Pennsylvania Media Group2020 Technology Parkway, Suite 300

Mechanicsburg, PA 17050

JOHNSON, DUFFIE, STEWART& WEIDNER, P. C.

C

By.6--L,-)

Michael J. Cassidy

Attorney ID No. 82164301 Market Street

P. O. Box 109

Lemoyne, PA 17043-0109

Telephone ( 717) 761- 4540

14



Exhibit q



Exhibit 13



JERRY R. DUFFIE BAFnE B. GEHRLEIN

RICHARD W. STEWART ANTHONY I LUCIDO

EDMUND G. MYERS L A W 0 F F I C E S C AR OL YN B. MCCLAIN

DAVID W. DELUCE

SONJOHN A. LUCY

JOHN A. STATLER ULYSSES S. WILSON

JEFFREY B. RETTIG JULIA A. MORRISON

MARK C. DUFFIE

DU FFIEMATTHEW RIDLEY

JOHN R. NINOSKY

MICHAEL J. CASSIDY OF COUNSEL

MELISSA P. GREEVY HORACE A. JOHNSON

WADE D. MANLEY C. ROY WEIDNER, JR .

September 10, 2013


Pennsylvania Media Groupr

2020 Technology Parkway, Suite 300

Mechanicsburg, PA 17050

Re: Right-to -Know Request/ Lemoyne Borough - Delinquent Account Information

Dear Ms. Barron:

I write this letter in my capacity as Solicitor for the Borough of Lemoyne, Cumberland County,Pennsylvania. Please allow this letter to serve as a formal response to the Right-to- Know Request

you submitted to Lemoyne Borough via le tter 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 thepast- due balance.

Please be advised th at Le moy ne Borough is denying your request for the above- referenceddocuments. Following careful review, Lem oyne B orough has determined that the requested

documents are not a public record subject to disclosure under the Pennsylvania Right-to- Know Law

in that the requested documents are exempt from disclosure under the Fair Debt Collection

Practices Act, 15 U. S. C. § 1692, et seq., and the Pennsylvania Fair Credit Extension Uniformity Act,

73 Pa. § 2270. 1, et seq.

We acknowledge that The Honorable Christopher J. St. John issued an opinion in the matter

of In re: Appeal of the City of Sharon Sanitary Authority v. Office of Open Records, et al., 10

Pa. D. & C.5th

353 ( Mercer Co. 2010), finding that delinquent customer sewer account records

maintained by a municipal authority are subject to disclosure under the Pennsylvania Right-to- Know

Law. However, it is important to note that the aforementioned case does not establish legalprecedence throughout the Commonwealth of Pennsylvania. Additionally, we believe Judge

St. John' s reasoning is flawed, in that both the plain language and intent of the Fair Debt Collection

301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043- 0109

1A WiI.JDSW.COM 717. 761. 4540 FAX: 717.761. 3015 MAIL @JDSW.COM

JOHNSON, DUFFIE, STEWART & WEIDNER, P. C.




September 10, 2013

Page 2

Practices Act an d the Pennsylvania Fair Credit Extension Uniformity Act p rohib its the publication ofdelinquent consumer account information.

Lemoyne Borough understands and appreciates that the Pennsylvania Right-to- Know Law is

intended to promote transparency in government operations. However, in this instance, we believe

the need to protect the confidentiality of consumer account information far outweighs any inferencethat 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



u

Exhibit c



pennsyLvania RECEIVEDOFFICE. OF OPEN REC.ORUS

RIGUT TO KNOW L A W .APPEALSEP 16 2013

DENIAL OR PARTIAL DENIAL

OFFICE OF OPEN RECORDS

Oftee of Open Records

Commonwealth Keystone Building

400 North Street,,4t Floor

Harrisburg, PA 17120- 022516 September 2013

Fax: ( 717) 425- 5343 E—mail: o enrecof .ds coa.gov Today' s date:

Requesters nameCate Barron, The Patriot-News/PennLive

Address/City/Statelzip:ec no ogy HarKway, S I L MO, Mec5anicsburg, PA 1105.0

Request submitted by: Fax Mait 16 E- mail In- Person (Please check one)

Date,of Right to Know request.30 August 2013 Jute of Agency Respponse: 10 September 2013

Telephone and fax number,71 8456

T;. mail:dgii6land @pens ive.com

Name and address of Agency; Borough of Lemoyne, 510 Herman Ave., Lemoyne, PA 17043

E- mail Address of Agencykmorrow emoynepaxom Fa x of Agency -

Name.an d title of person who denied my reguest: Michael J. ivass idy, Borough Solid or

I submitted a. request for records to the agency named above: Th e agency ettlie. d en ie d o r partiallydenied my request. I am appealing that denial to the Office of Open Records ( OOR), and I am

providing the following hil'orniat on ;

I was denied access to the following records ( attach additional pages if necessary):listing of sewer accounts 90 days or more past due, with name,, amount.& days past due

Th e 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 an d are. not subject tothe 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 reasonth e agency gives for denying your request, attach•additional pages if necessary)( RE QUIRE D) :

The agency denies release claiming they are exempt from disclosure under the Fair Debt CollectionPractices Act, 15. U. S. C. § 1692, et seq. and the Pennsylvania Fair Credit Extension Uniformity Act, 73 Pa .

2270. 1 at seq Agency acknowledges 2 1 ruling by Mercer County Judge.Christopher J., St. John In : re :Appeal of the City of Sharon Sanitary Authority v . Office of Open Flecords, et al., 10 Pa D. & C. 5th 353,

upholding OOR ruling for release, but says opinion does not establish preced:mt an d is flawed.

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

d I have attached a copy ofall responses fiom the agency regardinf,,my request. (REQUIRED)I have attached any letters or notice tending the agency' s tim( to respond to my request.

Respectfully Submittemust be signed)

5 ott should rovide the a enc with a copythis form and.an. docrtmcnts ou submit to th e OOR.



exhibit D



pennsyLvania

OFFICE OF OPEN RECORDS

September 17, 2013

Via E-Mail only.: Via E-Mail only-.

Cate Barron Kathryn A. Morrow

Vice-President.,Content Open Records Officer

Pennsylvania Media Group Borough of Lemoyne

202 Technology Parkway, Suite 300 510 Herman Avenue

Mechanicsburg, PA 17050 Lemoyne, PA 17043

ebarron@pennlive, c.om kmorrowglemoynepa.,co

dgililaftdgpennlive. com

RE- OFFICIAL NOTICE OF APPEAL- DOCKET W AP2013- 173 8

Dear Parties:

Please review this information carefully as it affects your legal rights.

Th e 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 Determinationwill be issued.M' 6 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 wasoriginally denied, Levy v. Senate of Pa., 65 A.3d 361 ( Pa. 2013). Accordingly, the

agency may supplement its response within the time frame set forth below.

You may submit information and legal:argument to support your position-b

5: 00 p.m. seven ( 7) business days from the. date on this letter. 'Please include the

docket number above on all submissions.

The law requires that your position must be supported by sufficient facts and

citation to all relevant sections of the RTKLj case law, and Final Determinations of the

OOR. Statements of fact inust be supported by an affidavit ihade under penalty of

perjury by a person with actual knowledge. -An affidavit is required to demonstrate

nonexistence of.records. Blank sample affidavits are available on our website,

Commonwealth Keystone building I 40 0 North Street-4th Floor I Harrisburg, PA 17120- 0225 717.346.99031 F 71 '7: 425:53431 http-.,//openrecords.state.p a .u s



The agency has the burden ofproving that records are not subject to public.access. Any written information you provide to OO R 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 OORwithin 7 business days.

Such notice must be made by 1) providing a copy of all documents included withthis letter; and 2) advising that interested persons-may request to participate in thisappeal,(see 65 P. S.§ 67.1101( c)).

The Commonwealth Court has held that the burden '[ is] on third-party

contractors ... to prove by a preponderance of the evidence that the [ requested] recordsare exempt. . See Allegheny:County Dept ofAdmin. Servs. v. A Second Chance, Inc., 13A.3d 1025, 1042 ( Pa. Commw. Ct. -2011). Failure to participate in an appeal before

the OOR may be construed as a waiver of objections regarding release of therequested records.

Law Enforcement Records of Local Agencies: District Attorneys are required

to appoint appeals officers to hear appeals regarding access to criminal investigativerecords in possession:of a local agency. if records were denied in p art 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 arecriminal 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

pennsytvania

OFFiCE OF OPEN RECORDS

APPEALS OFFICER: Kyle Applegate, Esquire

CONTACT I NFO RMA TI O N: Commonwealth ofPennsylvania

Office of Open Records

Commonwealth Keystone Building400 North Street, 4 Floor

Harrisburg, PA 17120-0225

PHONE: 717) 346- 9903

FACSIMILE: 717) 425- 5343

E -MAIL: [email protected] v

Preferred method of contact

and submission of information: E M A I L

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 submitto the OOR.

The OOR website, http:// o.peiirecords. state.pa.us, is searchable and both

parties are encouraged to review prior final determinations involving similar

records and fees that may impact this appeal.



Exhibit E



pennsyLvan iaOFFICE OF OPEN RECORDS

F IN AL D ETER M IN AT IO N

IN T HE M A TT ER OF

CATE BARRON AND THF,

PA TRIO T-NE WSIPEN NLIVE,

Complainant

V. Docket No.: AP 2013- 1738

BOROUGH OF LEMOYNE,

Respondent

INTRODUCTION

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

submitted a request ( Request ) to the Borough of Lemoyne ( Borough ) pursuant to the Right-

to - Know Law, 65 P. S. §§ 67. 101 et seq., ( RTKL ), seeking a list of delinquent sewer accounts.

The Borough did not respond to the Request, and Requester appealed to the Office of Open

Records ( OOR ). For the reasons set forth in this Final Determination, the appeal is granted

and the Borough is required to take further action as directed.

F A C T U A L B A CK GROUND

On August 30, 2013, th e 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 th e 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 Fa ir Debt Collection Practices

Act, 15 U. S. C. §§ 1692 et seq. ( FDCPA ), and the Fair Credit Extension Uniformity Act, 73

P. S. §§ 2270. 1 et seq. ( FCEUA ).

On September 16, 2013, the Requester appealed to the OOR, chal lenging the denia l and

stating grounds fo r 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 th e Right to Know Law ... is to empower c itizens by affording them

access to information concerning th e activities of their government. SWB Yankees L. L. C. v.

Wintermantel, 45 A.3d 1029, 1041 ( Pa. 2012). Further, this important open- government law is

designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions. Bowling v. UDR, 990 A .2d 813, 824 ( Pa. Commw. Ct. 2010), aff'd No. 20 MAP 2011,

2013 Pa. LEXIS 1800 ( Pa. Aug. 20, 2013).

The OO R is authorized to hear appeals for al l 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 a t issue, 65 P. S. § 67, 1102(a) ( 2). An appeals officer may conduct a

hearing to resolve an appeal.

The dec is ion 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 OO R has the necessary,

requisite information and evidence before it to properly adjudicate the matter.

The Borough is a local agency subject to the RTKL that is required to disclose public

records. 65 P. S. § 67. 302. Records in possession of a local agency are presumed public unless

exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65

P. S. § 67. 305. Upon receipt of a request, an agency is required to assess whether a record

requested is within its possession, custody or control and respond within five business days. 65

P. S. § 67. 901. An agency bears the burden of proving the applicability of any cited exemptions.

See 65 P. S. § 67. 708(b).

Section 708 of the RTKL clearly places the burden of proof on the public body to

demonstrate that a record is exempt. In pertinent part, Section 708( a) states: ( 1) The burden of

proving that a record of a Commonwealth agency or local agency is exempt from public access

shall be on the Commonwealth agency or local agency receiving a request by a preponderance of

th e evidence. 65 P. S. § 67. 708( a). Preponderance of the evidence has been defined as such

proof as leads th e fact- finder ... to find that the existence of a contested fact is more probable

than its nonexistence. Pa. State Troopers Ass' n v. Scolforo, 18 A.3d 435, 439 ( Pa. Commw. Ct.

2011) ( quoting Dep' t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827

Pa. Commw . Ct. 2010)),

Section 102 of th e RTKL exempts from the definition of public record any record

exempt from being disclosed under any other Federal or State Law or regulation or judicial

order or decree. 65 P. S. § 67. 102. In the present appeal, the Borough argues that the requested

records are exempt from being disclosed pursuant to FDCPA and FCEUA. The relevant section

of FCEUA states that:

3



I -i

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

to harass, oppress or abuse any person in connection with the collection of a debt.

Without limiting the general application of the foregoing, the following conduct isa violation of this paragraph....

iii) Th e 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

seq).

73 P. S. § 2270.4(b)( 4)( iii). FCEUA mirrors FDCPA, which contains the same language. Se e 15

U. S. C. § 1692d( 3). Th:e OO R has previously examined the applicability of FCEUA to

delinquent utility information. In holding that FCEUA did no t 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 prohibitsharassment, oppression and abuse in connection with the collection of a debt.

As we do not view financial recordkeeping at a [ public] agency to be an activity

associated with debt collection, delinquent sewer accounts are not protected byFCEUA and are public record.

Anderson v, Sharon Sanitary Authority, OOR Dkt. AP 2009- 0502, 2009 PA O. O.R.D. LEXIS

656. The OOR' s final order in Anderson was appealed to the Mercer County Court of Common

Pleas, which affirmed, In re: Appeal of the City of Sharon Sanitary Authority, No. 2009- 3539,

2010 Pa. Dist. & Cnty. Dec. LEXIS 30 ( Mercer Com. Pl. Jan. 26, 2010). Specifically, th e Cou rt

held:

T] he release of information pursuant to the [ RTKL] is not in conflic t 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 itsfinancial records. Moreover, the fact that the information that it releases may

ultimately be published by the requestor is not a factor in the foregoing analysisand may not be a reason to deny disclosure.... Th e release of the overdue account

information by the Authority does not violate the plain language and/ or the

legislative intent under lying both remedial statutes.

4



Id, at * 11.

The OO R adopts the Court' s reasoning in the present matter. Release of the requested

information here would not be in connection with the Borough' s efforts to collect delinquent

sewer fees. Instead, release of the requested information would be pursuant to the Borough' s

obligation under the RTKL to provide access to public records. See 65 P. S. § 67. 302( a) .

Therefore, release of these records would not violate FCEUA or FDCPA. Forest Hills Volunteer

Fire Company v. Borough 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 th e 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). A ll parties must be served with notice of the

appeal. The OOR also shall be served notice and have an opportunity to respond according to

court rules as per Section 1303 of the RTKL. This F inal 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*s N ex i

IN RE: APPEAL OF T HE C IT Y OF SHARON SANITARY AUTHORITY, Peti-

tioner v. OFFICE OF OPEN RECORDS and COURTNEY L. ANDERSON, Re-

spondents

No . 2009-3539

COMMON PLEAS COURT OF MERCER COUNTY, PENNSYLVANIA

2010 Pa . Dist. & Cnty. Dec. LEXIS 30; 10 Pa . D. & C.51h 353

January 26, 2010, Decided

January 26, 2010, Filed

maintain financial records [* 2] for property owners wh oCOUNSEL: [* 1] Fo r Petitioner: William J. Madden, purchased sewer serv ices in the City of Sharon thereaf-Esquire, Sharon, PA. ter. In addit ion, the Authority is mandated to collect past

and future debts for such services.

Fo r Respondents: William G. McConnell. Jr., Esquire,

Courtney Lynn Anderson is reporter for The HeraldSharon, PA.

who attends the monthly board meetings of the Authority

JUDGES: Christopher J. St. John, Judge.as part of her duties as a reporter. She has also written

various art ic les in The Herald about the delinquent ac-

OPINION BY: Christopher J. St. Johncounts [** 355] ow ed to the Authority. As part of he r

investigative reporting, Ms. Anderson submitted a re-

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

sylvania' s Right-to-Know Lew, seeking access to Jelin-354] M E M O R A ND U M O P IN IO N AND O R D ER

quent sewer accounts, including the names and addresses

of those i nd iv idua ls who were delinquent. Obviously,ST . J O HN , J . there Is a strong likelihood that she would write follow-

A sewer authority denied a request fo r a list of peo-up articles disclosing various information including the

ple with delinquent sewer accounts. The authoritynames of those individuals who are delinquent, as she

wanted to release th e names, bu t its attorney was con-toss before and after the de novo hear ing on her request.

cerned that it would violate consumer protection lawsTh e Authority denied her request upon the sage advice of

and expose th e authority I to civil damages. Release of

Its solicitor.

the requested information, pursuant to a court order, It is uncontested that the Authority is In favor inhowever, would insulate the authority from damages principal of releasing the information to Respondent be-and/or civil penalties, It is this court's holding after close cause the Authority believes that it will result in higherreview of th e respective statutes, that the relevant con- collections on past due accounts. [* 3] It is fearful, how-

sumer protection statutes are not in conflict with Penn- ever, that it will be liable under various consumer protec-

sylvania's new Right-to - Know Lew. Hence, th e de novo tion statutes.

appeal will be DENIED and the authority will be orderedto release the requested information.

The sole question presented here is whether Penn-

sylvania's Right-to- Know Law, when road in conjunction

Th e City of Sharon Sanitary Authority is a munici- with these consumer protec tion statutes, prohibits the

pal authority created by the City of Sharon around Sep- disclosure of this delinquent account information. This is

tember of 2007. Part of th e Authority' s function is to an issue of first impression that can only be resolved bymaintain financial records ft Inheri ted from th e City re- comparing the language in the respective statutes. Chief

garding uncollected debt for prior sewer accounts, and to



Page 2

2010 Pa. Dist.& Cnty. Dec. LEXIS 30, *; 10 Pa. D. & C. 5th 353, **

Justice Castille aptly defined the court's rote when inter- access to public records. Accordingly, the new law cre-

preting statutes as follows: ated the presumption that a record possessed by a localagency shall be presumed to be a public record Id. at§

The object of statutory interpretation is 67. 305( a). The legislature, however, provided that this

to determine the intent of the General As- presumption is removed If the record is exempt under

sembly. Pa. Oep' t of Transp., Bureau of Section 67. 708, protected by a privilege and/ or is ex-Driver Licensing v. Weaver, [ 590 Pa. empt from disclosure under any federal or state law or188] 912 A. 2d 259, 264 ( 2006) ( citing 1 regulation or judicial order or decree. Id. § 67.102 ( See

Pa .C.S. § 1921( a)). The touchstone of definition of public record. ) The legislature also im-

statutory interpretation is that where a posed the burden of proving that a record was exemptstatute is unambiguous, the [** 356] ju- upon th e government agency. Id.§§ 67. 708( a)( 1). '

diciary may not Ignore the plain languageunder the pretext of pursuing its spirit, 1 1 It is uncontested th at th e Authority is an

Pa. C.S. § 1921( b), fo r the language of a agency an d that the information sought Is a re-statute is the best indication of legislative cord and a financial record' as at of those learns

intent. Weaver, 912 A. 2d at 264. Words are defined in Section 67. 102.

end phrases should be construed in accor-

The solicitor for the Authority posits that the list ofdance with their common an d approved

past due account holders is exempt from disclosure underusage. I Pa . C.S. § 1903( a). When the

part of the definition of a public record. A public re-words of a statute ar e clear, there is no

cord is defined as follows:need to look [* 4] beyond the plain mean-

ing of a statute. See. e. g.. CommonwealthPublic [* 6] record. A record, includingv, McClintic, 589 Pa. 465, 909 A.2d

1241, 1245 ( 2006) ( citing Sternlicht v.a financial record, of a Commonwealth or

Sternlicht, 583 Pa. 149, 876 A. 2d 904,local agency that: ( 1) is not exempt under

909 ( 2005) and Ramich v. Workers'Section 708; ( 2) is not exempt from be-

Comp. Appealed. ( ScnatZ Elec. Inc.), 564 ing disclosed under an y other federal or

Pa. 656, 770 A. 2d 318, 322 ( 2001)). If astate law or regulation or judicial order or

statute is deemed ambiguous, however, decree; or ( 3) is no t protected by a privi-

resort to principles of statutory construc-

lege

tion is appropriate. 1 Pa .C.S. § 1921( c);

Commonwealth v. Packer, 568 Pa. 481,id. at§ 67. 102( emphasis added). Notably, Section 708 of798 A. 2d 192, 198( 2002).

the Act no t only imposes the burden upon the Authorityto prove by a preponderance of the evidence that a record

Colville v. Allegheny County Retirement Board, 592 Pa.is exempt from public access, [** 358] bu t it a lso con-

433, 926 A. 2d 424. 430- 31 ( Pa. 2007) ( emphasis added);tains a very extensive list of exemptions. Id. at §

quoted with approval in Com, v. Cox, 603 Pa. 223, 983 67.708( a) through ( b). Nonetheless, the Authority does

A. 2d 666. 703 ( Pa. 2009).not argue that any of these well-defined exemptions pre-vent disclosure in this case. Instead, it argues that these

Moreover, the court must construe every statute. If records cannot be disclosed because they do not fall un-possible, to give effect to all of its provisions. I Pa .C.S. der the definition for a public record because they are

1921( a). Sterling Acceptance Co. v. Grimes, 194 Pa. already exempt from disclosure under federal and stateSuper. 503, 168 A.2d 600 ( Pa.Super. 1961). Thus, the law.- In reviewing the new Right- to- Know Law it iscourt' s initial task is to compare and review the relevant noteworthy that the legislature did not specifically listportions of Pennsylvania's Right-to - K no w La w with th e the statutes referred to by the Authority under the Sectionconsumer protection statutes to se e if there is any ambi- 67. 708 exemptions where it listed in great detail some of

guity and/ or if they can be interpreted in pari materia. the other c ircumstances where records were not: to be

Access to public records in Pennsylvania w as previ-

disclosed. This, of course, creates [* 7] the inference that

ously governed by a law that was enacted In 1957. 65the legislature had not intended that the consumer protec-

PS. §§ 661 th rough 664( Purdon' s [* 5] 2000). This rawtion statutes referred to by the Authority prevent disclo-

was substantially revamped by the new Right-to - knowsure under the Right-to- Kno w L aw . Furthermore, in re-

357] Law which became effective February 14,viewing the consumer protection statutes it is important

2008, 65 P.S. §§ 67. 101 et seq. ( Purdon' s Supp. 2009).to view those statutes in light of their stated legislative

Th e goal of th e new law was to expand and streamline

intent, and the presumption of disclosure in the Right-to-

K no w L aw as well as its prohibition that th e intended use



Page 3

2010 Pa. Dist.& Cnty. Dec. LEXIS 30, *; 10 Pa. D. & C. 5th 353, **

of the public record is generally irrelevant. Id. at §§ lished. These statutes were enacted to pro tect two sepa-

67.305( a) an d 67.302( b). Thus, the Authority cannot rate and distinct interests. First, the consumer from un-

generally deny access to a record even if they know that fair, deceptive and/ o r abusive deb t collection practices.

the requestor will do something with the information that Secondly, the public's right to access information aboutthe Authority could not itself do, such as in this situation. the financial records of local agencies. Similarly, the

The applicable consumer protection statutes are theCommonwealth of Pennsylvania enacted the FCEUA to

following debt collection statutes:declare what constitutes unfair methods of competition

and unfair or deceptive acts or practices with regard 1: 0

1. The Fair D eb t C olle ct io n Practicesthe collection of debts. 73 P. S. § 2270.2. The relevant

Act( TDCPA ), 15 U.S. C. §§ 1692 etseq.;portions according to the Authority of Pennsylvania's

and

statute are as follows:

2. The Pennsylvania Fair Credit Ex- b) By creditors. - With respect to debt

tension Uniformity Act ( FCEUA ), 73 collection activities of creditors in this

P. S, § 22 70. 1 et seq. Commonwealth, It shall constitute an un-

fair or deceptive debt collection act or

practice under this act if a creditor vio-

359] The Fair Debt Collection Practices Actlates any of the following provisions:

was enacted by Congress to curb abuses by debt collec-tors. 15 U.S.C. § 1692( a). Thus, th e FDCPA was created

3) Except as provided in paragraphto eliminate abusive debt collection practices, to prevent

1) without the prior consent of the Ion-a competitive advantage t o th os e [* 8] who were using

sumer [* 10] given directly to the creditorabusive collection practices, and to create state action to

or th e e xp re ss permission of a court ofprotect consumers against abusive debt collection prac-

competent jurisdiction or as reasonablytices, Id. at§ 1692( e). Th e FDCPA does not permit con-

necessary to effectuate a postjudgment ju-duct by a debt collector the natural consequence of which

dicial remedy, a creditor may not commu-is to harass, oppress, or abuse any person in connection

nicate, in connection with the collectionwith a collection of a debt. Id. at§ 1692d. This section

of any debt, with a ny person o the r thanspecifically prohibits:

the consumer, his attorney, a consumer

3) The publication of a list of consum-reporting agency if otherwise permitted

er s who allegedly refused to pa y debts,by law, a debt collector, the attorney of

except to a consumer reporting agency or the debt collector or the attorney of theto persons meeting th e requirements of

creditor.

Section 1681 a( f)or 168lb( 3) of this title. 4) A creditor m ay n ot engage In anyconduct the natural consequence of which

is to harass, oppress or abuse any person

The FDCPA also prohibits certain communications

in connection with the collection o f a

by th e debt collector with third parties without the con-debt. Without limiting the general appli-

sen t of th e consumer or the express permission of th ecation of the [** 361] foregoing, the fol-

court of competent jurisdiction, if the communication islowing is a violation of this paragraph:

in connection with the collection of any debt id. at §1692c( b) ( emphasis added). The c lear language and In-

tent of these prohibitions is to prevent abusive debt col- iii) The publication of a

lection practices. All of th e prohibited acts are illegal list of consumers wh o al-

onlyif done

inconnection with th e collection of a debt

legedlyrefused to

payTherefore, under a plain reading of th e FDCPA, th e re- debts, except to a con-

lease of information by th e Authority of delinquent ac- sumer reporting agency....

count holders [* 9] to Respondent would be for the pur-

pose of complying with the Right-to-Know Law, no t for

the purpose of collecting on the debt. Obviously, Con-

gress was not and is not attempting to prevent the pub-lic' s access to public records, even though the conse-

quence may [** 360] be that the information is pub-



Page 4

2010 Pa. Dist. & Cnty. Dec. LEXIS 30, *; 10 Pa. D. & C. 5th 353, **

FCEUA. Section 2270.4( b)( iii) and ( iv)( i i i) ( Emphasis violate the plain language and/ or the legislative intent

added). underlying both remedial statutes. The court need not

As in the federal statute. Pennsylvania' s prohibitionstherefore look beyond the plain meaning of t hese s ta t-

are tr iggered by communication or other practices, such

utes.

as publishing listsof

delinquent debtors, onlyif this ac- 362]

In conclusion, the Authority must disclosetivity is done in connection with th e collection of any the delinquent account records requested by the Respon-

debt. Once again, the release of information pursuant to dent.

the Right- to - Know [* 11] statute is not in conflict with

HENCE, THIS ORDER:Pennsylvania' s consumer protection statute which is de-

signed to prohibit and curt deceptive unfair debt collec-t, O R D ER

tion practices. The Authority clear ly would not be at-

tempting to subvert either th e Pennsylvania or Federal AN D NOW, on this 26th day of [* 12] January.

consumer protection statutes, nor would it in fact be vio- 2010, IT IS HEREBY ORDERED AND DECREED that

lating such statutes, by releasing information pursuant to the appeal of the City of Sharon Sanitary Authority is

the public's right to access its fmanciall records. More- DENIED. IT IS FURTHER ORDERED mat the City of

over, th e fact that the information that it releases may Sharon Sanitary Authority shall release the requested

ultimately be published by the requestor is not a factor in information to the Respondent, Courtney L. Anderson,

th e foregoing analysis and may not be a reason to deny within thirty( 30) days of the date of this Order.

disclosure.BY THE C OU R T:

Accordingly, it is the holding of this court that theres/ Christopher J. St. John, J.

is no ambiguity in either the FDCPA and the FCEUA as

they relate to disclosure of Information pursuant to the Christopher J. St. John, Judge

Pennsylvania Right-to -Know Law. The release of the

overdue account information by the Authority does not

lemoyne appeal of office of open records decision

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