FINAL DETERMINATION IN THE MATTER OF CATE BARRON AND THE PATRIOT-NEWS/PENNLIVE, Complainant v.

BOROUGH OF LEMOYNE, Respondent : : : : : : : : : :

Docket No.: AP 2013-1738

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 Rightto-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

denied. See 65 P.S. 67.901.

On September 10, 2013, the Borough purported to deny the

Request, arguing that the records are confidential pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (FDCPA), and the Fair Credit Extension Uniformity Act, 73 P.S. 2270.1 et seq. (FCEUA). On September 16, 2013, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record, and directed the Borough to notify any third parties of their ability to participate in the appeal pursuant to 65 P.S. 67.1101(c). Neither party made a submission on appeal. LEGAL ANALYSIS The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government. SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), affd 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. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa.

Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The Borough is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence. 65 P.S. 67.708(a). Preponderance of the evidence has been defined as such proof as leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). Section 102 of the RTKL exempts from the definition of public record any record exempt from being disclosed under any other Federal or State Law or regulation or judicial order or decree. 65 P.S. 67.102. In the present appeal, the Borough argues that the requested records are exempt from being disclosed pursuant to FDCPA and FCEUA. The relevant section of FCEUA states that:

(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 1681a(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)(4)(iii). FCEUA mirrors FDCPA, which contains the same language. See 15 U.S.C. 1692d(3). The 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 FCEUAs scope reaches only methods and practices with regard to the collection of debt and prohibits harassment, oppression and abuse in connection with the collection of a debt. As we do not view financial record-keeping at a [public] agency to be an activity associated with debt collection, delinquent sewer accounts are not protected by FCEUA and are public record. Anderson v. Sharon Sanitary Authority, OOR Dkt. AP 2009-0502, 2009 PA O.O.R.D. LEXIS 656. The OORs final order in Anderson was appealed to the Mercer County Court of Common Pleas, which affirmed. In re: Appeal of the City of Sharon Sanitary Authority, No. 2009-3539, 2010 Pa. Dist. & Cnty. Dec. LEXIS 30 (Mercer Com. Pl. Jan. 26, 2010). Specifically, the Court held: [T]he release of information pursuant to the [RTKL] is not in conflict with [FCEUA] which is designed to prohibit and curtail deceptive unfair debt collection practices. The Authority clearly would not be [violating either FCEUA or FDCPA] by releasing information pursuant to the public's right to access its financial records. Moreover, the fact that the information that it releases may ultimately be published by the requestor is not a factor in the foregoing analysis and may not be a reason to deny disclosure. The release of the overdue account information by the Authority does not violate the plain language and/or the legislative intent underlying both remedial statutes.

Id. at *11. The OOR adopts the Courts reasoning in the present matter. Release of the requested information here would not be in connection with the Boroughs efforts to collect delinquent sewer fees. Instead, release of the requested information would be pursuant to the Boroughs obligation under the RTKL to provide access to public records. See 65 P.S. 67.302(a). Therefore, release of these records would not violate FCEUA or FDCPA. Forest Hills Volunteer Fire Company v. Borough of Forest Hills, OOR Dkt. AP 2013-0839, 2013 PA O.O.R.D. LEXIS 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, Requesters appeal is granted and the Borough is required to provide all responsive records to the Requester within thirty (30) days. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Cumberland County Court of Common Pleas. 65 P.S. 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.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