Pittsburgh Post-Gazette argues in court for termination letter under Right to Know law

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Wilkinsburg officials agree that the public has a right to know that an employee has been terminated, but not the right to know why.

That issue was the subject of oral argument Wednesday morning before an en banc panel of the Pennsylvania Commonwealth Court.

The Pittsburgh Post-Gazette filed a right to know request with Wilkinsburg in August 2011 inquiring about the termination of public works employee Richard Funk.

After a month, the borough responded by providing the newspaper a copy of Mr. Funk's termination letter. However, all of the information about why he was fired had been redacted.

The borough's position is that the reasons for the termination - which include past disciplinary actions - are exempted from the Right to Know Law.

But the Post-Gazette's attorney, Frederick Frank, argued that while previous discipline and personnel records are protected, in Mr. Funk's case, because they were included in his termination letter, they become public record.

The relevant section of the law reads that exempted records include "information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge."

Based on that language, Mr. Frank said, the exemption related to the past disciplinary action referenced in the letter does not apply.

"There's no question this was a final action resulting in discharge," he told the panel. "Whatever is in that letter is public record. What ever forms the basis for discharge is public record."

Mr. Frank argued that the legislative intent behind the statute is clear.

"They could have put the caveat in there," he said. "They made it absolute."

The attorney said the newspaper was not seeking to have access to the employee's entire personnel file, but that the request was very narrow.

"It is unassailable that under the limiting language ... we get the entire letter."

But Rachel Riedel, who represented the borough, said the only thing the newspaper is entitled to is a report of the final action - in Mr. Funk's case, the fact that he was terminated.

"The letter was provided," she said. "There's nothing that would indicate that letter can't be redacted."

But Judge Bonnie Brigance Leadbetter said that personnel matters, such as prior discipline, could have been discussed in executive session, alleviating the need to include them in a termination letter.

"If you put reasons in the final action letter, isn't it your choice, your problem, that was included?" she asked Ms. Riedel.

Judge Patricia A. McCullough then followed that up with, "Why isn't your argument that the letter itself wasn't disclosable?"

Ms. Riedel argued that because the letter represented the final action of the agency, it had to be turned over.

The court took the matter under advisement.

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Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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