In re Melamed

287 A.3d 491

IN RE: Appeal of Samantha MELAMED, The Philadelphia Inquirer

From a Decision of: Office of Open Records

Appeal of: Samantha Melamed, the Philadelphia Inquirer

No. 914 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued November 14, 2022

Decided December 19, 2022

Gunita Singh, Washington DC, for Appellants Samantha Melamed and The Philadelphia Inquirer.

Meghan Byrnes, Philadelphia, for Appellee Philadelphia Police Department.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE COVEY

Samantha Melamed and The Philadelphia Inquirer (collectively, Requester)¹ appeal from the Philadelphia County Common Pleas Court's (trial court) July 23, 2021 order affirming the Office of Open Records’ (OOR) Final Determination that granted in part and denied in part Requester's appeals from the City of Philadelphia (City) Police Department's (PPD) denial of the Right-to-Know Law (RTKL)² request for records reflecting PPD officers dismissed in 2020 (Request). Requester presents one issue for this Court's review: whether the trial court erred by concluding that Section 708(b)(7)(viii) of the RTKL, 65 P.S. § 67.708(b)(7)(viii), did not require PPD to produce a list of officers whose dismissals were pending a grievance arbitration process in 2020.³ After review, this Court affirms.

On July 6, 2020, Requester emailed the Request to PPD for "[a]ny record that reflects the police personnel dismissed in 2020, including name and rank and effective date of dismissal. Please include all dismissals from Jan[uary] 1, 2020[,] until the date a response is provided." Reproduced Record (R.R.) at 1a. Because PPD did not respond to the Request or invoke an extension to respond within five days, the Request was deemed denied.⁴ See Sections 901 and 902(b) of the RTKL, 65 P.S. §§ 67.901, 67.902(b).

On July 23, 2020, Requester appealed to the OOR, declaring, in relevant part:

[I]t is well documented that the [R]equest falls within those materials rendered public by the [RTKL]. I request final dismissals of police personnel in 2020, and the [RTKL's] exemption for personnel records [in Section 708(b)(7)(viii) of the RTKL] states[:] "This subparagraph shall not apply to the final action of an agency that results in demotion or discharge." [ 65 P.S. § 67.708(b)(7)(viii).]

This is a time-sensitive matter, as it is the City's position that those dismissals are no longer public once a fired officer has appealed or entered arbitration. Thus, according to the [C]ity, these public records then become un-public. While I do not agree with that position, my goal right now is not to argue that issue[,] but to obtain the records in a timely fashion - that is, ideally, within the five days required by the [RTKL]. This [R]equest, given that it is limited in scope and has been made and granted repeatedly for previous time periods, should not trigger any of the reasons for extension of time listed under the [RTKL]. The legal review has been conducted in the past, no redactions are needed, and no remote filing system is involved.

R.R. at 5a (emphasis added). The OOR invited the parties to supplement the record and directed the PPD to notify third parties of their ability to participate in the appeal.

By September 10, 2020 letter, PPD responded to Requester's appeal, therein asserting that it should be dismissed or denied because the PPD "has no records responsive to [Requester's] Request to the extent it seeks final actions of discharge for PPD officers dismissed in 2020." R.R. at 7a. PPD claimed that, since its notices of dismissal are subject to further review under a mandatory grievance arbitration process, they are not final agency actions until that process is complete, and, thus, they are exempt from disclosure under Section 708(b)(7)(viii) of the RTKL and what is referred to as the Personnel Files Act (Act).⁵ In support of its position, PPD produced affidavits by PPD's Open Records Officer, Lieutenant Barry Jacobs (Jacobs), and Deputy Director of the Mayor's Office of Labor Relations, Rebecca Hartz (Hartz).⁶ Jacobs attested that he searched PPD's records and "there were no final actions of discharge for PPD officers dismissed in 2020." R.R. at 17a. Jacobs added:

a. Per the PPD Collective Bargaining Agreement [(CBA)] with the Fraternal Order of Police [(FOP)],^[7] officers who are dismissed by PPD have the opportunity to arbitrate their dismissal[s].

b. Any records PPD maintains of officers dismissed in 2020 are not final actions of discharge because no officers that were dismissed by PPD in 2020 have completed the arbitration process. Thus, none of the pending 2020 PPD officer dismissals constitute final actions of demotions or discharge.

c. As soon as any of the officers dismisse[d] by PPD in 2020 complete the arbitration process, if their dismissals are upheld, the dismissal would be a final action of discharge and considered public.

R.R. at 17a.

Hartz expounded in her affidavit:

4. Per [Section 7-303 of] the [Philadelphia Code, Phila. Code § 7-303,] when a City agency wishes to terminate or demote a City employee who is a member of the Civil Service, it must have just cause for doing so.

a. The agency must first issue a notice of intent to demote or dismiss the employee. The employee may respond, in writing, within ten (10) days of service of the notice. Within twenty (20) days after the expiration of that 10-day period, the City may issue to the employee a notice of the effective date of the demotion or dismissal.

b. Under [Section 7-201 of] the [City's] Civil Service [Commission (Commission)] Regulations [(Regulations), Phila. Code § 7-201], an employee may, within thirty (30) days, appeal the dismissal or demotion to the [Commission].

c. Represented employees may have a contractual right to grieve the disciplinary action and have the issue submitted to a neutral arbitrator for decision, in lieu of decision by the [Commission]. The timeline for the grievance process is set forth in the respective collective bargaining agreement.

5. Per the City's [CBA] with [FOP], PPD employees represented by the FOP may file a grievance with the Police Commissioner or his/her designee, challenging the discipline.

6. Per the CBA, if the grievance is not resolved by the Police Commissioner or his/her designee, the [g]rievant may next file a grievance with the Director of Labor Relations. If the grievance is not resolved at that stage, the [FOP] may demand arbitration. The discipline remains in effect while any such demand is pending.

a. If the [FOP] elects to pursue arbitration, the decision of the arbitrator is final and binding on all parties.

7. If an arbitrator sustains the grievance, the arbitration award may - in addition to any award reinstating the grievant to his/her last position - require the City to expunge the notices of discipline - both the notice of intended discipline and the notice of the final disciplinary action - from that employee's personnel file.

R.R. at 19a-20a.

On September 18, 2020, Requester responded:

[T]his case[ ] ... deals with a record that the [City] has produced previously, pursuant to the [RTKL], but which it now deems exempt from that law.^[8]

I believe the [RTKL] is clear in this matter, as it says the exemption for personnel files "shall not apply to the final action of an agency that results in demotion or discharge." [ 65 P.S. § 67.708(b)(7)(viii).] I'm not asking for access to the contents of personnel files, written criticism, or any internal information, other than access to final actions of discharge, whether or not they have subsequently been or will possibly be contested. The former employee's quest to be reinstated does not change the final nature of those dismissals. And even if an employee is reinstated, the end result of the arbitration is public pursuant to [the RTKL], including any order for reinstatement.

....

Finally, even if the [C]ity's perspective on dismissals -- that they are only final once arbitration has concluded or the period to seek arbitration has expired -- is deemed correct, the [C]ity should be then compelled in response to this [R]equest to produce any documents related to dismissal that became final per the [C]ity's definition, in 2020 [ ] (arbitration was concluded with an outcome other than reinstatement).

R.R. at 21a-22a.

On December 4, 2020, the OOR issued the Final Determination, holding "[PPD] has met its burden of proving that no final actions resulting in demotion of [sic] discharge for police personnel who received a notice of dismissal in 2020 exist, as of the date of the Request." OOR Final Determination at 6 (quotation marks omitted). However, "while [PPD] is not required to produce records related to the termination of personnel who are still involved in the grievance process, it must produce records of personnel whose dismissal became final during the timeframe identified in the Request, regardless of when the dismissal was initiated." Id. at 7. On December 29, 2020, Requester timely appealed to the trial court.

On June 28, 2021, Jacobs issued a supplemental affidavit providing Requester with a list of officer discharges that became final in 2020 after completion of the officers’ grievance arbitration processes. See Requester Br. at 5 n.1; see also R.R. at 124a-127a. Specifically, Jacobs attested that, although there were no final 2020 dismissal actions at the time PPD received the July 6, 2020 Request, on July 31, 2020, PPD dismissed Officer Luis Miranda, who did not appeal from his dismissal, and, thus, PPD provided a record of that dismissal to Requester after it was final. See R.R. at 124a. Jacobs further disclosed that PPD officer Bryan Turner's September 10, 2018 dismissal became final on January 20, 2020; PPD officer Jessica Kovacs’ January 15, 2019 dismissal became final on March 18, 2020; and PPD officer Daniel Farrelly's August 19, 2019 dismissal became final on December 18, 2020. See R.R. at 127a....