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«OPINION BY JUDGE SIMPSON FILED: January 3, 2014 Michael Hadley (Requester) appeals from the Venango County Court of Common Pleas’ (trial court) ...»

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Right to Know Law Request :

Served on Venango County's Tourism :

Promotion Agency and Lead Economic : No. 2286 C.D. 2012

Development Agency : Argued: November 14, 2013

:

Appeal of: Michael R. Hadley :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge

OPINION

BY JUDGE SIMPSON FILED: January 3, 2014 Michael Hadley (Requester) appeals from the Venango County Court of Common Pleas’ (trial court) order that affirmed the Office of Open Records’ (OOR) final determination holding the Oil Region Alliance of Business, Industry and Tourism (Alliance) is not a local agency subject to the Right-to-Know Law (RTKL).1 Requester contends the trial court erred in applying deferential review of OOR’s determination. Requester also asserts the records of the Alliance are accessible under the RTKL regardless of its status as a private nonprofit corporation.

Ultimately, Requester seeks a broad construction of the definition of “local agency.” Upon review, we affirm the trial court, holding the Alliance is not a local agency as a matter of law, and that its records are not otherwise accessible under the RTKL through the underlying request.

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

I. Background The purpose of the Alliance is to promote economic development, recreation and tourism in Venango County and parts of Crawford County. The Alliance also owns real estate for the development of industrial parks, and it owns individual facilities for rent to industrial occupants. Representatives of the private sector comprise 21 of the 25 member governing board of the Alliance (Board).

The Board sets policy and oversees the management team that directs day-to-day operations. The Alliance receives financing from its members as well as from grants by state and federal sources.

Requester submitted a request to the Alliance seeking employee names and salary information. The Alliance denied the request, responding that it is not an agency subject to the RTKL; rather, it is a private nonprofit corporation.

Requester appealed the Alliance’s denial to OOR. The Alliance’s alleged status as a local agency implicates jurisdiction because OOR only adjudicates appeals from Commonwealth and local agency denials.

OOR reviewed the Articles of Incorporation, Bylaws and documents from the Internal Revenue Service showing the Alliance was classified as a 501(c)(3) organization, and a public charity under Section 509(a)(1) of the Internal Revenue Code. See 26 U.S.C. §501(c)(3); 26 U.S.C. §509(a)(1). In addition, OOR reviewed the affidavit of John R. Phillips, President and Chief Operating Officer, attesting that the Alliance was the same private corporate entity that OOR held was not subject to the RTKL in Styborski v. Oil Region Alliance, OOR Dkt.

No. AP 2010-0272, (Pa. OOR, filed Apr. 26, 2010).

Requester countered, submitting a verified position statement alleging the Venango County (County) Commissioners designated the Alliance to serve as its “tourism promotion agency.”2 As a result, the request should be viewed as having been served upon the County’s tourism promotion agency, not the Alliance.

As in the prior case, OOR ruled the Alliance did not qualify as an agency, or “similar governmental entity,” and it denied Requester’s appeal. See Hadley v. Oil Region Alliance, OOR Dkt. No. AP 2012-0184 (Pa. OOR, filed March 26, 2012). Requester appealed OOR’s final determination to the trial court.

The trial court rendered findings of fact and conclusions of law, holding the Alliance did not qualify as an agency under the RTKL. The trial court concluded that OOR did not commit an error of law or violate any constitutional rights, and that its determination was supported by substantial evidence. The trial court analyzed case law, and it reasoned the Alliance did not perform an essential government function and was not sufficiently connected to or controlled by government to qualify as an agency under the RTKL.

Requester appealed to this Court.3 A “recognized tourism promotion agency” is defined in Section 1770.6 of the County Code as “the nonprofit corporation, organization, association or agency which is engaged in planning and promoting programs designed to stimulate and increase the volume of tourist, visitor and vacation business within counties” it serves. Act of August 9, 1955, P.L. 323, as amended, added by Section 4 of the Act of December 22, 2000, 16 P.S. §1770.6.

Our review of the trial court’s decision is “limited to determining whether findings of fact are supported by competent evidence or whether the trial court committed an error of law, or an abuse of discretion in reaching its decision.” Allegheny Cnty. Dep’t of Admin. Servs. v.

Parsons, 61 A.3d 336, 342 (Pa. Cmwlth. 2013) (en banc). Review of legal issues is plenary. Id.

II. Discussion Requester challenges whether the trial court applied the proper standard and scope of review when it deferred to OOR. Requester also asserts the trial court erred in failing to conclude the records of the Alliance are accessible despite its status as a private entity pursuant to our Supreme Court’s decision in SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029 (2012). Requester contends this Court can direct disclosure as if the County received his request.





The primary issue before the Court is whether, as a matter of law, the Alliance qualifies as a “local agency,” as that term is defined in the RTKL.

A. Proper Standard of Review Requester first argues the trial court erred by applying a deferential standard of review to OOR.4 The Alliance responds the trial court applied the proper standard of review pursuant to Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc), aff’d, __ Pa. __, 75 A.3d 453 (2013).

In its opinion, the trial court cited a deferential standard of review.

The trial court began its analysis by stating, “[T]he standard of review as it currently exists over an appeal from an agency requires us to affirm the administrative adjudication unless we find an error of law was committed, that constitutional rights were violated, or that any findings of fact were not supported by substantial evidence of record.” Tr. Ct., Slip Op., 11/21/12, at 4.

Requester notes this error is harmless as agency status is determined as a matter of law.

At the time the trial court issued its decision, our Supreme Court had not resolved the appeal in Bowling. This Court’s en banc decision in Bowling, which pertained to a Commonwealth agency, held the first level of court review under Chapter 13 of the RTKL was de novo and independent. In our decision, this Court rejected the traditional deferential review. Thus, the trial court erred to the extent it applied a deferential standard of review.

Although it erred in stating it was “constrained to affirm the OOR determination,” Tr. Ct., Slip. Op., at 5, the trial court made its own findings and conclusions and explained its rationale as required by Chapter 13 of the RTKL.

Section 1302(a) of the RTKL, 65 P.S. §67.1302(a). Further, the trial court fully analyzed whether the Alliance qualified as either a Commonwealth or local agency. Notably, the trial court found “the [Alliance] is not an agency as defined in [Section 102 of the RTKL,] 65 P.S. §67.102. Moreover, we do not see the type of relationship existing between [the Alliance] and local governmental authority here in Venango County ….” Tr. Ct., Slip Op., at 13.

In conclusion, the trial court reasoned, “Where, as here, there is no government control, no delegated authority, and no agency relationship between a governmental entity and the [Alliance], the RTKL and its disclosure requirements do not apply.” Id. at 14. Ultimately, the trial court held “the decision of the OOR was supported by substantial evidence in the record and in accord with our location of available precedent ….” Id. at 15. Thus, despite identifying an incorrect standard of review, the trial court, in part, chose to defer to OOR’s fact-finding.

Our Supreme Court’s decision in Bowling permits such deference. See Bowling (affirming de novo review; allowing Chapter 13 courts to defer to fact-finding at the appeals officer level). Further, the trial court made its own findings with regard to the Alliance’s finances and funding streams to determine the degree of government control. Consequently, the trial court’s error in stating an improper standard of review was harmless.

B. Agency Status Requester contends the Alliance is the County’s tourism protection agency, and the County’s lead economic development agency. Because it is an “industrial development agency,” Requester insists the Alliance qualifies as a local agency subject to the RTKL. Appellant’s Br. at 13. That the Alliance is a registered private nonprofit charity does not alter its agency status, Requester asserts. Requester also argues the trial court erred in construing the definition of “local agency” so narrowly when the statutory definition includes “any … agency.” Section 102 of the RTKL, 65 P.S. §67.102.

The Alliance counters that it is not a local agency because it is a private corporation that does not perform an essential government function. The Alliance emphasizes it is a private nonprofit entity governed by its independent Board that is not controlled by government.

Requester does not argue the Alliance is a Commonwealth agency.

Therefore, the only issue before this Court is whether the Alliance qualifies as a “local agency.” “Local Agency” is defined in the RTKL in pertinent part as: “Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.” Section 102 of the RTKL, 65 P.S.

§67.102 (emphasis added).

–  –  –

This Court construes the definition less broadly, recognizing the importance of the descriptive modifiers. See Phila. Indus. Devel. Corp. v. Ali (PIDC v. Ali) (Pa. Cmwlth., No. 528 C.D. 2010, filed Apr. 18, 2011) (unreported, filed pursuant to former 210 Pa. Code §67.29(b), now at 210 Pa. Code §69.256(b)), Slip Op., at 7 (citing Indep. Oil & Gas Ass’n of Pa. v. Bd. of Assessment Appeals of Fayette Cnty., 572 Pa. 240, 246, 814 A.2d 180, 184 (2002) (IOGA)).

As used in the statute, the word “any” applies to the particular descriptive terms which follow, “local, intergovernmental, regional, or municipal.” Section 102 of the RTKL, 65 P.S. §67.102 (definition of local agency).

Under Requester’s proffered construction (“any … agency”) the particular descriptive terms would be mere surplusage. Such an interpretation does not comport with the rules of statutory construction. 1 Pa. C.S. §1921(c); Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004) (no provision should be “reduced to mere surplusage”). Instead, the word “agency” should be interpreted as limited to local, municipal, intergovernmental or regional type agencies. This construction is indicated from the particular words preceding the general word “agency.” IOGA; 1 Pa. C.S. §1903(b) (“general words shall be construed to take their meanings and be restricted by preceding particular words.”). For these reasons, we reject Requester’s broad interpretation that anything referred to as an agency under any law qualifies as an agency under the RTKL.

2. Industrial Development Agency/Tourism Promotion Agency Requester also relies on the Alliance’s undisputed status an “industrial development agency” under Section 3(g) of the Industrial Development Authority Act (Act)5 to confer agency status. Requester contends the appointment as this type of agency suffices to qualify the Alliance as an agency under the RTKL.

There is no record evidence establishing that an “industrial development agency” is a government entity. Moreover, contrary to Requester’s assertions, the definition of industrial development agency in the Act does not characterize the functions of such agencies as “essential[ly] governmental” in nature. See Appellant’s Br. at 13-14. The “governmental” terminology appears in the provision outlining the role ascribed to the Pennsylvania Industrial Development Authority (PIDA) created by the Act. Section 10.1 of the Act.6 Requester appears to confuse the role of PIDA with that of nonprofit development agencies like the Alliance. Unlike the Alliance, an authority expressly created by statute, such as PIDA, is an agency under the RTKL.

Act of May 17, 1956, P.L. 1609, as amended, 73 P.S. §303(g).

Added by Act of September 27, 1973, P.L. 262, as amended, 73 P.S. §310.1.

By contrast, an “industrial development agency” means:

–  –  –

Section 3(g) of the Act, 73 P.S. §303(g). Assisting economic development and stimulating the local economy is not referred to in the definition as a government function. Indeed, it is a function that may be ascribed to any profitable private business that provides employment in a certain locality.

Requester also asserts the Alliance serves as the County’s official “tourist promotion agency,” for which it enjoys agency status. See Appellant’s Br.

at 14. However, Requester’s conclusion is based on the use of the term “agency” without regard to the statutory definition. The Tourism Promotion Act defines a “County tourism promotion agency” to include a nonprofit corporation.7 Designation as a “tourist promotion agency” authorizes the Alliance to apply for and receive grants from the Commonwealth as an agent designated by the County;

it does not ascribe certain functions.

Section 2 of the Act of July 4, 2008, P.L. 621, as amended, 73 P.S. §410.2. Requester did not analyze the definition of “tourism protection agency,” or the function of such an agency in his brief. Requester notes only that the Alliance receives benefits by virtue of its designation.

Appellant’s Br. at 14. In addition, we note there is no resolution formalizing a designation by the County in the Reproduced Record.



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