Commonwealth Court affirms Phila. judge's decision denying Nutter schedule to newspaper reporter

By Jon Campisi | Jul 27, 2012

A majority Commonwealth Court panel has affirmed a Philadelphia trial court’s decision

that granted an appeal from the City of Philadelphia in a case involving what constitutes public records.

The case arose from a 2009 request by Philadelphia Inquirer reporter Jeff Shields seeking the daily schedule for Mayor Michael Nutter under the state’s Right To Know Law.

The information sought by Shields included appointment logs, calendars and “whatever names the Mayor’s office gives its daily itinerary, including public events and private meetings,” according to the court papers.

The journalist had wrote in his request that, “To be clear, this would be far more inclusive than the daily public schedule put out by your office.”

Shields sought similar information from City Council members.

The city’s Law Department subsequently denied both requests, citing in each instance the “working papers” exemption, the “pre-decisional deliberations/strategy exemption,” and the “personal security exception.”

The city’s lawyers also denied the requests due to law enforcement and public safety issues.

The newspaper appealed the denials to the state’s Office of Open Records, which subsequently ruled in favor of the plaintiff.

In part, an OOR hearing examiner determined that the daily schedules that were requested were not protected under “predecisional deliberations/strategy” because the city didn’t submit evidence to show that the schedules were part of the city’s internal communications or decision-making process.

The OOR also determined that the mayor’s schedule was not, in and of itself, a law enforcement record, despite assertions to the contrary by Philadelphia’s police commissioner, who had testified during the OOR hearing.

The city appealed the OOR’s decision to the Philadelphia Court of Common Pleas, which initially found that the city had failed to provide the information necessary for the OOR to have conducted a thorough and appropriate review of the matter.

The court then ordered the city to submit by affidavits the factual and legal grounds to support the exemptions outlined by city attorneys.

The trial court later determined that the information sought by the newspaper was, indeed, exempt, but only under the working papers exception; the court didn’t address the other two exemptions that had been raised.

The Inquirer contended that the trial court erred in finding the schedules of the mayor and councilmembers exempt under this Right To Know Law exception.

The paper then appealed the decision to Commonwealth Court, Pennsylvania’s lower-tier appellate court.

The city disagreed, arguing under Bureau of National Affairs, a case in which the District of Columbia Circuit Court found desk appointment calendars to be exempt from disclosure under the federal Freedom of Information Act.

The Commonwealth Court agreed with the trial court that the requested documents are appointment calendars – not subject to public inspection – because they were created “solely for the convenience of the Mayor’s and City Council Members’ personal use in scheduling daily activities and were not circulated outside of the official’s office.”

“Consequently,” the ruling continues, “the daily schedule/calendar of the Mayor and City Council Members are exempt from disclosure.”

The case was heard before seven of the nine Commonwealth Court judges.

The majority opinion was signed by President Judge Dan Pellegrini and joined by Judges Bonnie Brigance Leadbetter, Renee Cohn Jubelirer, Patricia A. McCullough and Ann E. Covey.

Judges Robert Simpson and P. Kevin Brobson filed dissenting opinions.


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