Opinion
November 22, 1985.
Public records — Act of June 21, 1957, P.L. 390 — Pennsylvania Housing Finance Agency — Agency status — Public purpose — Market survey — Public record — Application attachment.
1. The Pennsylvania Housing Finance Agency has an important public purpose, performing an essential governmental function, and is an agency, as that term is applied in the "Right-to-Know Law", Act of June 21, 1957, P.L. 390. [142-3]
2. A market survey, privately conducted and submitted by an applicant to the Pennsylvania Housing Finance Agency as part of a funding request, is not a public record subject to another citizen's scrutiny under provisions of the Act of June 21, 1957, P.L. 390. [144-5]
Argued before Judges CRAIG and PALLADINO, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 2725 C.D. 1984, from the Order of the Pennsylvania Housing Finance Agency in case of Re: A. R. Building Co.-Pacific Realty, Cooper Ridge Apartments, dated October 1, 1984.
Request for disclosure of market survey submitted to Pennsylvania Housing Finance Agency. Request denied. Appeal filed in Commonwealth Court of Pennsylvania. Held: Affirmed.
W. Thomas Laffey, Jr., with him, Maurice A. Nernberg, Jr., Nernberg Laffey, for petitioner. Gwendolyn T. Mosley, Deputy Attorney General, with her, Allen C. Warshaw, Chief Deputy Attorney General, Chief Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.
Clifford B. Levine, with him, Ralph F. Scalera and David A. Reis, Thorp, Reed Armstrong, for intervenor, Pacific Realty Corporation, Inc.
A. R. Building Company (Company) appeals from a refusal by the Pennsylvania Housing Finance Agency (PHFA) to disclose, pursuant to the Right-to-Know Law (Law), a market survey which Pacific Realty Corporation (Pacific) had submitted to the PHFA with its application for funding, upon which the PHFA had taken no final action.
Act of June 21, 1957, P.L. 390, as amended, §§ 1-4, 65 P. S. § 66.1-66.4.
Pacific Realty Corporation intervened as a party respondent.
Although petitioner's brief indicates that after the filing of this appeal, the PHFA gave preliminary approval to Pacific's application, this record necessarily antedates that juncture, so that no preliminary approval is embraced within the issue before us.
The appeal presents two questions. We must decide whether the PHFA is covered by the Law, and whether a market survey submitted by a private applicant is a "public record" before the agency has disposed of the application.
Coverage of The Law
The Law applies to an "agency", which its section 1(1) defines as:
Any department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function. (Emphasis added.)
65 P. S. § 66.1(1).
The legislative declaration of purpose for the creation of the PHFA was to provide financing for the construction and rehabilitation of homes and rental housing for persons of moderate and low incomes. Our Supreme Court affirmed that legislative declaration in Johnson v. Pennsylvania Housing Finance Agency, 453 Pa. 329, 309 A.2d 528 (1973), holding that the PHFA performs a "public purpose".
Section 102(7) of the Housing Finance Agency Law, Act of December 3, 1959, P.L. 1688, as amended, 35 P. S. § 1680.102(7).
Thus, the legislative purpose declaration as to the PHFA, our Supreme Court's decision in Johnson, and the express language of the Law — "any State or municipal authority or similar organization" which performs an essential governmental function — all lead us to conclude that the PHFA is an "agency" within the meaning of the Law.
Pacific, the intervenor whose survey is sought, contends that Pennsylvania Housing Finance Agency v. Abreen Corporation, 84 Pa. Commw. 571, 480 A.2d 335 (1984) negates the concept of the PHFA as an "agency" under the Law. However, the situation before us is distinguishable from that in Abreen. In Abreen we held only that the PHFA is not "the Commonwealth" under the Board of Claims Act which expressly limits the board's jurisdiction to claims against the Commonwealth". The Right-to-Know Law is much more expansive in that it applies to "any State or municipal authority or similar organization".
Section 4 of the Act of May 20, 1937, P.L. 728, as amended, 72 P. S. § 4651-4 provides: "The Board of Arbitration shall have jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth. . . ." (Emphasis added.)
Pacific further argues that the Law's explicit mention of the Pennsylvania Turnpike Commission and omission of the PHFA in the definition of "agency" reveals a legislative intent to exclude the PHFA from its coverage. However, we note that the PHFA was created after the original enactment of the Law. Moreover, the specific mention of the Pennsylvania Turnpike Commission, which the legislature apparently inserted for the sake of clarity, does not negate the nature of the PHFA as an organization "similar" to a "State . . . authority" performing "an essential governmental function."
Section 201 of the Housing Finance Agency Law states: "A body corporate and politic, named the 'Pennsylvania Housing Finance Agency,' is hereby created as a public corporation and government instrumentality. . . ." 35 P. S. § 1680.201.
In addition, Pacific contends that our recognition of the financial similarities between the Pennsylvania Turnpike Commission and the PHFA in Abreen supports its contention that the legislature, by explicitly naming the Commission but not the PHFA, thus indicated an intention to exclude the PHFA from coverage of the Law. However, an equally cogent argument is that our recognition of the similarities between the Pennsylvania Turnpike Commission and the PHFA in Abreen tends to confirm the conclusion that the legislature intended to cover both of them under the Law.
Public Record Definition
In considering whether the private applicant's market survey is a "public record", we note that section 1(2) of the Law defines a "public record" as:
Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons. . . . (Emphasis added.)
65 P. S. § 66.1(2).
The market survey at issue clearly does not come within the express language of that definition.
The same section of the Law tends to confirm its inapplicability to a private applicant's market survey — which is actually an investigation of market conditions — by a subsequent proviso which excludes from the Law's coverage "any . . . paper . . . which would disclose . . . an investigation undertaken by an agency . . .," with non-pertinent exceptions. Even when produced at public expense, investigative material is not subject to the disclosure mandate. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958) (field investigation notes of a city planning department concerning a rezoning proposal). A fortiori, if a public agency's own investigation is not subject to disclosure, a private applicant's investigative product would not be amenable to another citizen's scrutiny under this Law.
The Company contends that Pennsylvania Association For Children and Adults With Learning Disabilities v. Department of Education, 91 Pa. Commw. 531, 498 A.2d 16 (1985) is controlling. However, Pennsylvania Association is contrary to the Company's position because the market survey in question here is part of a pending proposal ( i.e. application) like the pending proposals and plans which this court refused to release in Pennsylvania Association, not just a gathering of statistics as to which we allowed access. Similarly, Patients of Philadelphia State Hospital v. Department of Public Welfare, 53 Pa. Commw. 126, 417 A.2d 805 (1980), Lamolinara v. Barger, 30 Pa. Commw. 307, 373 A.2d 788 (1977), Young v. Armstrong School District, 21 Pa. Commw. 203, 344 A.2d 738 (1975), and McMullan v. Secretary of Welfare, 3 Pa. Commw. 574, 284 A.2d 334 (1971), rev'd on other grounds sub. nom., McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973) are all distinguishable from this case on the same basis that we distinguished them in Pennsylvania Association; they all related to consummated decisions, not pending ones. Further, Ryan v. Pennsylvania Higher Education Assistance Agency, 68 Pa. Commw. 123, 448 A.2d 669 (1982) (contracts), Carbondale Township v. Murray, 64 Pa. Commw. 465, 440 A.2d 1273 (1982) (cancelled checks), City of Philadelphia v. Doe, 45 Pa. Commw. 225, 405 A.2d 1317 (1979) (real estate tax records) and Marvel v. Dalrymple, 38 Pa. Commw. 67, 393 A.2d 494 (1978) (examination results) are also distinguishable from this case because none involved elements of an incipient proposal or application.
Accordingly, we hold that A. R. Building Company is not entitled to access to a market survey constituting an element in another party's pending application.
ORDER
NOW, November 22, 1985, the Pennsylvania Housing Finance Agency's denial of A. R. Building Company's request is affirmed.