           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Municipality of Mt. Lebanon                  :
                                                 :
                 v.                              :
                                                 :
Elaine Gillen and Pennsylvania                   : No. 1020 C.D. 2016
Office of Open Records                           :
                                                 :
Appeal of: Elaine Gillen                         :

The Municipality of Mt. Lebanon                  :
                                                 :
                 v.                              :
                                                 :
Elaine Gillen and Office of Open                 : No. 1021 C.D. 2016
Records                                          : Argued: November 14, 2016
                                                 :
Appeal of: Elaine Gillen                         :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE JOSEPH M. COSGROVE, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                                FILED: December 9, 2016

                  These are consolidated appeals from two decisions of the Court of
Common Pleas of Allegheny County (trial court) reversing final determinations of
the Office of Open Records (OOR) under the Right-to-Know Law (RTKL)1 that
had ordered the Municipality of Mt. Lebanon (Municipality) to produce emails
concerning private citizen participation in a deer control program adopted by the
Municipality. The trial court held that Section 708(b)(13) of the RTKL, 65 P.S. §

1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
67.708(b)(13), exempting records that disclose the identity of individuals who
make donations to a government agency, applies to individuals who volunteer
services or provide temporary use of their property to a government agency
without compensation. For the reasons set forth below, we affirm.
             In July 2015, the Municipality awarded a contract to White Buffalo,
Inc. to conduct an organized bow hunt on public and private properties within the
Municipality in order to curb the community’s deer population. Property owners
within the Municipality could permit the hunt to occur on their properties and
could offer their services as archers in the hunt.
             On July 30, 2015, Elaine Gillen (Requester) submitted a public
records request to the Municipality seeking “[a]ll communication to and/or from
municipal staff and, all communication to and/or from the commission [the
Municipality’s governing body] concerning Anthony DeNicola’s [the president of
White Buffalo, Inc.] archery program from June 18, 2015 to the present.” (2015-
1938 OOR Certified Record (OOR C.R.) Item 1, Records Request, Reproduced
Record (R.R.) at 6a.) The Municipality granted Requester’s July 2015 request in
part, producing 131 pages of documents, but denied production of 10 pages of
emails that it contended related to individuals volunteering their services as archers
or the use of their property. (Id., Response to Records Request, R.R. at 7a-8a;
Hearing Transcript (H.T.) at 3, 18.) The Municipality based this denial on both the
personal security exception of Section 708(b)(1)(ii) of the RTKL and Section
708(b)(13) of the RTKL, the donor exception. (2015-1938 OOR C.R. Item 1,




                                           2
Response to Records Request, R.R. at 7a- 8a.)2 On September 18, 2015, Requester
filed an appeal from this denial with OOR.
              On November 25, 2015, Requester submitted a second records request
to the Municipality seeking the same type of records for a different time period,
requesting “[a]ll communication to and/or from municipal staff and, all
communication to and/or from the commission concerning Anthony DeNicola’s
archery program from July 31, 2015 through November 25, 2015.” (2016-0023
OOR C.R. Item 1, Records Request, R.R. at 19a.) The Municipality granted
Requester’s November 2015 request in part, producing at least 63 pages of emails,
but denied production of 7 pages of emails that it contended related to individuals
volunteering time or use of their property. (H.T. at 11-13, 18.)3 As with the July
2015 request, the Municipality based this denial on the personal security and donor
exceptions of Sections 708(b)(1)(ii) and 708(b)(13) of the RTKL. (2016-0023
OOR C.R. Item 1, Response to Records Request.) On January 6, 2016, Requester
timely appealed this denial to OOR.
              On November 24, 2015 and February 23, 2016, OOR issued final
determinations granting Requester’s appeals.               In both determinations, OOR

2
  The Municipality also stated that it withheld other emails based on attorney-client privilege.
(2015-1938 OOR C.R. Item 1, Response to Records Request, R.R. at 8a.) Requester did not
challenge the withholding of those documents before OOR and the withholding of those
documents is not before this Court.
3
  Although the Municipality’s counsel, at the hearing before the trial court, described the
documents produced to Requester as 63 pages of emails, the Municipality stated in its response
to the request that it produced 271 redacted pages of documents. (2016-0023 OOR C.R. Item 1,
Response to Records Request.) The Municipality also stated in its response that it withheld other
emails based on attorney-client privilege and on Section 708(b)(27) of the RTKL, concerning
communications with insurance carriers. (2016-0023 OOR C.R. Item 1, Response to Records
Request.) Requester did not challenge the withholding of those documents before OOR and the
withholding of those documents is not before this Court.


                                               3
rejected the Municipality’s claims that the withheld documents were exempt from
disclosure under the personal security and donor exceptions of the RTKL and
ordered that the Municipality provide the requested emails within 30 days. (2015-
1938 OOR C.R. Item 6, R.R. at 12a-18a; 2016-0023 OOR C.R. Item 8, R.R. at
22a-28a.) The Municipality timely appealed these decisions to the trial court, and
the trial court reviewed the withheld documents in camera. (H.T. at 2.) On April
11, 2016, the trial court held a hearing on both appeals at which the parties argued
their positions, but no testimony was offered. The only documents submitted in
evidence were the Municipality’s petitions appealing the OOR determinations,
which included affidavits of its Chief of Police and Manager and documents
produced by the Municipality in response to the requests, and photographs of two
yard signs in which the property owners indicated support for hunting on their
property. (Id. at 14-15, 33, 44.) The Manager’s affidavit stated under oath that
“[n]o property owner or archer is receiving compensation from the Municipality or
any other party for participation in this program.” (Feller Affidavit ¶19, Ex. I to
Petition for Review of 2015 OOR Determination.)
            On May 23, 2016, the trial court issued decisions reversing OOR’s
final determinations. In the appeal from the 2015 OOR determination, the trial
court ruled that Requester’s OOR appeal of the denial of her records request was
insufficient and reversed OOR’s order requiring production of the records sought
by the July 2015 request on that ground. (2015 Appeal Trial Court Op. at 4-5.)
The trial court also addressed the merits and ruled that the personal security
exception to the RTKL did not apply to the documents sought by the July 2015
request because the Municipality had not shown a substantial and demonstrable
risk of physical harm or harm to the personal security of any individual. (Id. at 5-


                                         4
9.) The trial court concluded, however, that the donor exception to the RTKL
applied to both those who volunteered to participate in the hunt and those who
offered their property for the hunt and held that all of the withheld documents were
exempt from disclosure under this exception. (Id. at 9-10.) In the appeal of the
2016 OOR determination, the trial court did not find any flaws in Requester’s
OOR appeal and reversed OOR’s determination on the merits. In accordance with
its ruling in the 2015 appeal, the trial court found that the Municipality had not
shown that the personal security exception applied to any of the documents sought
by the November 2015 request. (2016 Appeal Trial Court Op. at 1.) The trial court
adopted its opinion in the 2015 appeal with respect to interpretation of the donor
exception and held that the donor exception applied to all but one of the withheld
emails. (Id.)
                Requester timely appealed both decisions to this Court and this Court
consolidated the two appeals.4 In these appeals, Requester challenges only the trial
court’s rulings that the donor exception to the RTKL applies to the documents that
she seeks and does not argue that the trial court erred in holding that OOR was
procedurally barred from ordering production of the emails sought by the July
2015 request.5

4
  The Court’s review of a decision of a court of common pleas in a RTKL appeal is limited to
determining whether the trial court committed an error of law and whether its findings of fact are
supported by substantial evidence. Paint Township v. Clark, 109 A.3d 796, 803 n.5 (Pa.
Cmwlth. 2015). The statutory construction of the RTKL is a question of law subject to this
Court’s plenary, de novo review. Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa. 2012).
5
  The Municipality argues that Requester’s failure to challenge the ruling that she was
procedurally barred requires that the trial court’s decision in the 2015 appeal be affirmed,
regardless of whether the records are exempt from disclosure. We agree. Appeal of an issue is
waived where the appellant fails to include it in the statement of questions involved section of
her brief and fails to address the issue in the argument section of the brief. Pa. R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of questions involved or is
(Footnote continued on next page…)
                                                5
               Section 708(b)(13) of the RTKL provides that the following records
are exempt from disclosure:

               Records that would disclose the identity of an individual who
               lawfully makes a donation to an agency unless the donation is
               intended for or restricted to providing remuneration or
               personal tangible benefit to a named public official or
               employee of the agency, including lists of potential donors
               compiled by an agency to pursue donations, donor profile
               information or personal identifying information relating to a
               donor.
65 P.S. § 67.708(b)(13). Requester represented to the trial court that she is seeking
disclosure of the identity of the individuals who volunteered as archers and
permitted the hunt on their property and advised the court that production of the
emails with the identity of those individuals redacted would not satisfy her request.
(H.T. at 11.) There is no claim of remuneration or benefit to any public official or
employee.      The affidavit of the Municipality’s Manager establishes that the
individuals volunteering their time and property did so gratuitously and not in
exchange for any compensation. The issue before this Court is therefore whether

(continued…)
fairly suggested thereby”); In re Tax Claim Bureau of Lehigh County 2012 Judicial Tax Sale,
107 A.3d 853, 857 n.5 (Pa. Cmwlth. 2015) (“A party’s failure to develop an issue in the
argument section of its brief constitutes waiver of the issue”). Requester did not raise the
sufficiency of her first OOR appeal as an issue in her brief and has not asserted any argument
that the trial court erred in reversing the 2015 OOR determination on the ground that her OOR
appeal was insufficient. Rather, she listed only one question, whether the donation exception
applies, and argued in her brief only that trial court erred in holding that the donation exception
applied to the records that she requested. Because Requester has waived any claim of error in
the trial court’s ruling that OOR was procedurally barred from granting her appeal of the partial
denial of the July 2015 request, any reversal of the trial court’s ruling on the donor exception,
which was only an alternative ground for its decision in the 2015 appeal, would not be sufficient
to reverse the trial court’s decision in that appeal. Contrary to Requester’s contention, her 2016
appeal does not make her 2015 appeal moot. While the trial court’s procedural ruling and her
waiver do not affect the 2016 appeal, the documents that the Municipality would be required to
produce are different for the two appeals because the time periods of the requests are different.


                                                6
the volunteering of time or services without compensation and the permitting of
temporary government use of property without compensation constitute a
“donation” to a government agency under the RTKL.
              That is a question of first impression.6 The RTKL does not define the
term “donation.” Because it is not defined, the Court must look to the common
usage and meaning of the word “donation” in construing Section 708(b)(13).
Section 1903(a) of the Statutory Construction Act, 1 Pa. C.S. § 1903(a) (undefined,
nontechnical “[w]ords and phrases shall be construed according to rules of
grammar and according to their common and approved usage”); Allegheny County
Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025,
1034 (Pa. Cmwlth. 2011); St. Ignatius Nursing Home v. Department of Public
Welfare, 918 A.2d 838, 845 (Pa. Cmwlth. 2007). “Where a word is not expressly
defined in the RTKL, we will construe the word according to its common and
approved usage.” A Second Chance, Inc., 13 A.3d at 1034.                    To ascertain the
common usage and meaning of a word, the Court may properly consider the
dictionary definitions of the word. A Second Chance, Inc., 13 A.3d at 1034; St.
Ignatius Nursing Home, 918 A.2d at 845.
              The dictionary definition of “donation” includes “the action of making
a gratuitous gift or free contribution esp. to a charity, humanitarian cause, or public
institution or utility” and “a free contribution : GIFT.” Webster’s Third New
International Dictionary of the English Language - Unabridged 672 (2002).

6
  This Court has addressed record requests that involved Section 708(b)(13) in two cases, East
Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010)
(en banc), and Indiana University of Pennsylvania v. Loomis, 23 A.3d 1126 (Pa. Cmwlth. 2011).
In both cases, however, the donations were financial contributions and the Court did not discuss
what constitutes a “donation” in either case.



                                               7
“Donate” is defined as “to make a free gift or grant of : contribute esp. to a
charitable cause or toward a public-service institution” and “SUPPLY, LOAN.”
Id. “Gift” is defined, in turn, as “something that is voluntarily transferred by one
person to another without compensation” and “a voluntary transfer of real or
personal property without any consideration or without a valuable consideration.”
Id. 956. “Contribution” is defined as “something that is contributed : a sum or
thing voluntarily contributed,” and the definition of “contribute” includes “give
money (or other aid) for a specified object.” Id. 496.
             Providing property for use without compensation falls within these
definitions. Allowing the Municipality to use property for its deer control program
constitutes a supplying or loaning of property to the government agency and a
giving of aid to a specific government project. Providing of time and services as
archers in the program likewise falls within these definitions because it constitutes
a giving of aid to a specific government project.         Indeed, our courts have
characterized the volunteering of time or services as a donation in other contexts.
See, e.g., In re Bruno, 101 A.3d 635, 661 (Pa. 2014) (referring to Court of Judicial
Discipline members as giving a “donation of time and talents”); Fayette Resources,
Inc. v. Fayette County Board of Assessment Appeals, 107 A.3d 839, 847-49 (Pa.
Cmwlth. 2014) (“donation or gratuitous rendering of services” is one of the
requirements for an entity to be exempt from taxation as a public charity); George
Clay Steam Fire Engine & Hose Co. v. Pennsylvania Human Relations
Commission, 639 A.2d 893, 895 (Pa. Cmwlth. 1994) (describing certain members
of fire company as those who “donate money and services to the company”);
Department of Labor & Industry, Bureau of Employment Security v. Johnstown
Municipal Symphony Orchestra, 350 A.2d 467, 469 (Pa. Cmwlth. 1976) (partial


                                         8
expense reimbursement was not wages where musicians were “donating their time
and energies for cultural purposes”). As the trial court held,

             [t]hose who volunteered their archery skills or the use of their
             property made a contribution because Mt. Lebanon [the
             Municipality] received something of value. What the
             volunteers offered had value because they contributed to a
             program the people’s representatives in Mt. Lebanon deemed
             beneficial to its residents and those who use its roads.
(2015 Appeal Trial Court Op. at 10.) Because the volunteering of property and
services are contributions of value to a program that the Municipality had
undertaken and are made by the donors without compensation, they are
“donations” to the Municipality within the common usage and ordinary meaning of
that word.
             While the donation of the property here is temporary and not a gift in
fee simple and the volunteer archers are donating time and services rather than
property, Section 708(b)(13) does not limit its exemption from disclosure to large
donations or permanent gifts of money or property.           We will not write in
restrictions on the type and size of donations to which Section 708(b)(13) applies
where the legislature did not see fit to impose such restrictions. It is a fundamental
principle of statutory construction that courts must give effect to the legislative
intention as expressed by the words of the statute and cannot, under the guise of
construction, add requirements or conditions that the General Assembly did not
include in the statute’s language. Shafer Electric & Construction v. Mantia, 96
A.3d 989, 994, 997 (Pa. 2014); Commonwealth v. Rieck Investment Corp., 213
A.2d 277, 282 (Pa. 1965); Summit School, Inc. v. Department of Education, 108
A.3d 192, 199 (Pa. Cmwlth. 2015); see generally 1 Pa. C.S. § 1921(b). “[I]t is not
for the courts to add, by interpretation, to a statute, a requirement which the

                                          9
legislature did not see fit to include.” Shafer Electric & Construction, 96 A.3d at
994 (quoting Rieck Investment Corp.).
             Requester argues that Section 708(b)(13) cannot include donations of
services and donations of less than a permanent interest in property, even though
Section 708(b)(13) contains no express limitations on the types of donations to
which it applies, because exemptions under the RTKL must be narrowly construed.
We disagree. The exemptions to disclosure in Section 708(b) are to be narrowly
construed to further the purpose of the RTKL.            Pennsylvania State Police v.
McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc); Office of Governor v.
Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013) (en banc). The purpose of the
RTKL is “to promote access to official government information in order to prohibit
secrets, scrutinize the actions of public officials, and make public officials
accountable for their actions.”       Pennsylvania State Education Association v.
Commonwealth, __ A.3d __, __ (Pa., Nos. 11 MAP 2015, 22 MAP 2015, filed
October 18, 2016), slip op. at 24, 2016 WL 6087684 at *11; McGill, 83 A.3d at
479 (Pa. Cmwlth. 2014); Scolforo, 65 A.3d at 1100 (quoting Bowling v. Office of
Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc), aff’d, 75 A.3d 453
(Pa. 2013)). The donor exception of Section 708(b)(13) protects the identity of
individuals acting as private citizens to make contributions to their government,
not to the acts, decisions or policies of public officials.
             Moreover, interpretation of the RTKL must also take into account the
constitutional protection of individuals’ rights of privacy under Article 1, Section 1
of the Pennsylvania Constitution. Pennsylvania State Education Association, __
A.3d at __, slip op. at 26-30, 2016 WL 6087684 at *12-*13 (constitutional right of
privacy requires balancing of public interest in disclosure against privacy interest


                                           10
in personal information in determining whether private, personal information such
as home addresses is subject to disclosure under the RTKL). Our Supreme Court
has made clear that

            nothing in the RTKL suggests that it was ever intended to be
            used as a tool to procure personal information about private
            citizens …. While the goal of the legislature to make more,
            rather than less, information available to public scrutiny is
            laudable, the constitutional rights of the citizens of this
            Commonwealth to be left alone remains a significant
            countervailing force.
Id. at __, slip op. at 29-30, 2016 WL 6087684 at *12. Because the donor exception
involves acts of private individuals, rather than government actors, and affects the
privacy of private individuals, the rule of narrow construction of exemptions from
disclosure under the RTKL does not provide a basis for interpreting “donation” as
used in Section 708(b)(13) more narrowly than its common and ordinary meaning.
            For the foregoing reasons, we affirm the trial court.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Municipality of Mt. Lebanon       :
                                      :
            v.                        :
                                      :
Elaine Gillen and Pennsylvania        : No. 1020 C.D. 2016
Office of Open Records                :
                                      :
Appeal of: Elaine Gillen              :

The Municipality of Mt. Lebanon       :
                                      :
            v.                        :
                                      :
Elaine Gillen and Office of Open      : No. 1021 C.D. 2016
Records                               :
                                      :
Appeal of: Elaine Gillen              :

                                   ORDER


            AND NOW, this 9th day of December, 2016, the decisions of May 23,
2016 of the Allegheny County Court of Common Pleas in the above-captioned
matters are AFFIRMED.


                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge
