Arbitration Awards Not Shielded From Public Disclosure

In July 2009, Wendy Ruderman, an employee of Philadelphia Newspapers, LLC, submitted a request to the City of Philadelphia under Pennsylvania’s “Right-to-Know Law” to review “all arbitration awards, including written decisions by arbitrators, pertaining to police officers in the years 2005, 2006, 2007, 2008 through the present.” The City reviewed Philadelphia Newspapers’ request and identified 187 arbitration decisions of varying lengths and formats that were subject to the request. The City planned to provide redacted copies of these documents.

Upon learning of the City’s plan, Lodge 5 of the Fraternal Order of Police (FOP) filed a request for an injunction prohibiting the City from disclosing any portion of any arbitration decision in response to Philadelphia Newspapers’ Right-to-Know request. A trial court ordered the City to comply with Philadelphia Newspapers’ request for records by providing a summary of each arbitration award that included only the following information: (1) The date the arbitration award was issued; (2) the name of the arbitrator; and (3) whether the grievance was affirmed or denied. The City then appealed the trial court’s decision.

The Pennsylvania Commonwealth Court agreed with the City and reversed the grant of the injunction. The Court began with the general presumption that documents in the possession of a governmental body are subject to disclosure unless they fall within one of the exceptions in the Right-to-Know Law. The most obviously relevant exemption pertained to records related to labor arbitration proceedings, and exempts the following documents from disclosure: “In the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the final award or order of the arbitrator in a dispute or grievance procedure.”

The Court found that the exemption did not apply. The Court observed that “the Legislature intended access more meaningful than a ‘scorecard’ of the City’s wins and losses in grievance arbitrations, which is the only access permitted under the trial court’s preliminary injunction. This narrow access runs afoul of the well-settled tenet that the Right-to-Know Law’s ‘exemptions from disclosure must be narrowly construed’ because it is remedial legislation.

“Our review of the arbitration awards reveals that the final award or order of the arbitrator is usually separated from the opinion, either on its own page or in a stand alone paragraph. There may be cases where that boundary is blurred, or factual information is included in the legal conclusions and relief awarded. Nevertheless, the Union does not explain why the City will be unable or unwilling to redact protected and sensitive information, such as information about family members, from the requested award. Indeed, the Right-to-Know Law directs agencies to use redaction in appropriate circumstances.”

The FOP also argued that a separate exception applied, one that shields from disclosure records “the disclosure of which would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” The Court rejected the argument, holding that the FOP’s sole witness on the issue “testified generally that police officers and their families are frequently threatened. He then speculated that access to arbitration awards will, ipso facto, pose a risk to the officers’ safety and privacy. This testimony fell far short of showing a substantial and demonstrable risk of physical harm to even one individual. More than mere conjecture is needed.”

Lutz v. City of Philadelphia, 6 A.3d 669 (Pa. Cmwlth. 2010).

This article appears in the February 2011 issue