Right-to-Know Law Administrative Appeals from Legislative Agencies

Transcription

Right-to-Know Law Administrative Appeals from Legislative Agencies
Lisa K. Kelly, Reporter
Legislative Reference Bureau Drafting Attorney
Preface
Explanations
This pamphlet contains the appellate decisions for the legislative agencies under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, from January 2009 through
September 2015. These decisions come from the Pennsylvania Senate, the Pennsylvania House of
Representatives, or the Pennsylvania Legislative Reference Bureau. This pamphlet also contains
relevant case law from the Commonwealth Court.
Decisions are reprinted in original form except that footnoted content has been set forth after
decision text. Reporter's summaries and headnotes have been added.
i
Table of Contents
Preface
...............................................................................................................................i
Table of contents
...............................................................................................................................ii
2009 Appeals
..............................................................................................................................iii
2010 Appeals
..............................................................................................................................iv
2010 Case Law
...............................................................................................................................v
2011 Case Law
...............................................................................................................................v
2012 Case Law
...............................................................................................................................v
2013 Case Law
...............................................................................................................................v
2014 Case Law
...............................................................................................................................v
2015 Case Law
...............................................................................................................................v
Table of Decisions
..........................................................................................................................TD-1
ii
2009 Appeals
Appeal of Scolforo (Senate 01-2009, 02-2009)
......................................................................09-1
Appeal of Scolforo (House, 2009-0001 SCO)
......................................................................09-7
Appeal of Scolforo (House, 2009-0002 SCO)
....................................................................09-13
Appeal of Wolf (House, 2009-0003 WOL)
....................................................................09-19
Appeal of Noll (House 2009-0004 NOL)
....................................................................09-25
Appeal of Parsons (House 2009-0005 PAR)
....................................................................09-31
Appeal of Parsons (House 2009-0007 PAR)
....................................................................09-35
Appeal of Lowell (House 2009-0008 LOW)
....................................................................09-44
Appeal of Nicholas (Senate 05-2009)
....................................................................09-52
Appeal of Krawczeniuk (Senate 03-2009)
....................................................................09-57
Appeal of Krawczeniuk (Senate 04-2009)
....................................................................09-61
iii
2010 Appeals
Appeal of Murphy (House 2010-0009 MUR)
......................................................................10-1
Appeal of Joyce (House 2010-0010 JOY)
......................................................................10-7
Appeal of Levy (Senate 01-2010)
....................................................................10-14
iv
Case Law
DCNR v. Office of Open Records
....................................................................10c-1
Bowling v. Office of Open Records
..................................................................10c-16
Signature Information Solutions v. Aston Township
..................................................................10c-31
Pennsylvania State Police v. Office of Open Records
..................................................................10c-37
Levy v. Senate of Pennsylvania
..................................................................11c-41
City of Philadelphia v. Philadelphia Inquirer
....................................................................13c-1
Askew v. Pennsylvania Office of the Governor
…………………………………………………………………13c-1
…………………………………………………………………13c-7
Borough of West Easton v. Mezzacappa
..................................................................13c-29
McClintock v. Coatesville Area School District
..................................................................13c-33
..................................................................13c-40
Kokinda v. County of Lehigh
....................................................................14c-1
....................................................................14c-6
Office of the Governor v. Donahue
..................................................................14c-18
Department of Public Welfare v. Clofine
..................................................................14c-36
SERS v. Pennsylvanians for Union Reform
....................................................................15c-1
v
Appeal of Scolforo
Senate of Pennsylvania
Nos. 01-2009, 02-2009
February 24, 2009
Reporter's summary: Associated Press reporter filed two requests under the new Right-to-Know
Law seeking access to all 2008 correspondence between Senators Pileggi and Mellow and any registered
lobbyists. The request was denied because communications between Senators and lobbyists do not fall
under the definition of a legislative document and are therefore not accessible to the public. The decision
was upheld on appeal.
Headnotes:
Statutory construction –
Delineations – By creating the category of "legislative records" and delineating 19 subcategories
of information, the General Assembly limited the types of documents the legislative agencies
must provide public access to.
Legislative intent – The procedure for determining if a record in the possession of a legislative
agency is public is to first determine if the record is a legislative record. If it is a legislative record,
it is presumptively a publicly accessible record unless it is exempted by section 708 or another
part of Pennsylvania or Federal law.
Legislative intent – Section 708 merely limits what has already been determined to be a publicly
accessible legislative record. Section 708 cannot be read to increase access to those records not
defined as legislative records.
Section 102 – Correspondence between lobbyists and General Assembly members does not fall within the
statutory definition of "legislative record" and is therefore not publicly accessible under the Right-toKnow Law.
See, also, Appeal of Scolforo (House, 2009-0001 SCO and 2009-0002 SCO).
09-1
Appeal of Scolforo
Senate
Statements of Fact
By letter dated January 1, 2009 addressed to Senator Dominic Pileggi, Mr. Mark Scolforo
(Appellant), a reporter with the Associated Press, sought access to any correspondence between the
Senator and any registered lobbyists that occurred during calendar year 2008. An identical letter and
separate request was sent to Senator Robert J. Mellow on January 1, 2009 seeking the same access to
any correspondence between the Senator and any registered lobbyists that occurred during calendar
year 2008. These requests were made pursuant to the recently enacted Right-to-Know Law, Act of
February 14, 2008, P.L. 6, 65 P.S. §67.101 et seq. (the Act).
Senators Pileggi and Mellow do not serve as open records officers for the Senate of
Pennsylvania. Appellant’s requests were forwarded to the Senate’s Open Records Officer, W. Russell
Faber. By e-mail correspondence dated January 9, 2009, the Open Records Officer denied both of
Appellant’s requests.
By identical letters dated January 26, 2009, Appellant has appealed both denials to this office.
Since these two appeals present identical factual situations and identical issues at law, they have been
consolidated for disposition.
Discussion
These two appeals are the first to be considered pursuant to the new Act. They present
questions of statutory construction.
The Act provides different types of access to different types of records of Commonwealth
agencies, local agencies, legislative agencies and judicial agencies. These appeals deal solely with access
provided by legislative agencies to legislative records.
No body of jurisprudence interpreting this Act has been developed. However, in construing any
statute, it is a basic premise of law that the intention of the General Assembly must be ascertained and
given effect. Craley v. State Farm Fire and Casualty Co., 586 Pa. 484, 895 A.2d 530 (2006). The
legislative intent is best gleaned from the clear and plain language of the statute. Bowser v. Blom, 569
Pa. 609, 807 A.2d 830 (2002). And, “... when the words of a statute are clear and free from all
ambiguity, they are presumed to be the best indication of legislative intent.” Walker v. Eleby, 577 Pa.
104 at 123, 842 A.2d 389 at 400 (2004). These cases can be resolved by applying these legal principles
to the existing factual situation.
Section 102 of the Act defines the Senate as a “legislative agency.” Section 303(a) of the Act
states that, “A legislative agency shall provide legislative records in accordance with this act.” The Act is
clear and unambiguous. If the correspondence between Senators Pileggi or Mellow and registered
lobbyists during calendar year 2008 are legislative records, then Appellant should be granted access to
such records.
09-2
Appeal of Scolforo
Senate
Section 102 of the Act defines the term “legislative record” in a very specific and exhaustive
manner. There are nineteen different types of legislative documents listed which would be accessible
by the public as legislative records pursuant to the Act.1
Nowhere in this list of accessible legislative records is found the mention of correspondence
between members of the Senate and registered lobbyists. It would seem clear and unambiguous that it
was not the intention of the General Assembly to make such a general class of records into accessible
legislative records under these provisions of the Act. If specific correspondence between a member of
the Senate and a registered lobbyist would fall within one of the specifically enumerated types of
legislative records in an ancillary way, then that correspondence must be made available to the public by
the Senate’s Open Records Officer. For example, such correspondence could well be part of the Journal
of the Senate. Such is not the case in this instance. Rather, Appellant is seeking access to an entirely
new class of record clearly not within the purview of any definition of a legislative record.
Appellant has not availed himself of the opportunity to file any further documentation or a
memorandum of law to support his appeal. However, his letter of appeal urges that section 708 (b)(29)
of the Act should be read to supplement and expand the definition of legislative records to include
another class or type of record. I cannot agree.
Section 708, entitled “Exceptions for public records”, enumerates 30 different types of records
which will not be accessible by the public. This section of the law is designed explicitly and exclusively to
limit access to certain records. These exceptions are not confined to legislative records. Rather, all of
the exceptions apply to any public records, legislative records or judicial records which otherwise would
be accessible as public records, legislative records or judicial records. In other words, a record must first
be a public record, a legislative record or a judicial record as those terms are defined in the Act before it
can be subject to an exception.
Section 708 (b)(29) specifically excepts:
“Correspondence between a person and a member of the General Assembly and records
accompanying the correspondence which would identify a person that requests assistance or
constituent services. This paragraph shall not apply to correspondence between a member of
the General Assembly and a principal or lobbyist under 65. Pa. C. S. Ch. 13A (relating to lobbying
disclosure).”
The first sentence clearly denies access to constituent correspondence which would otherwise
be considered either a public record, a legislative record or a judicial record. Although constituent
correspondence, like correspondence between members of the Senate and registered lobbyists, does
not fall within the definition of a legislative record, it is very likely that such correspondence exists in the
possession of Commonwealth agencies or local agencies. It would most likely be considered an
accessible public record but for this exception in the Act.
The second sentence, limited to the specific paragraph of the section, provides an exception to
the broader exception and permits a greater access to certain specific correspondence between
members of the General Assembly and registered lobbyists if that correspondence first qualifies as a
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Appeal of Scolforo
Senate
public record, a legislative record or a judicial record. Such correspondence could qualify as a public
record and therefore be accessible to the public. This opinion has already determined that such lobbyist
correspondence alone does not constitute an accessible legislative record. There is no indication that
the General Assembly intended in any way to add another definition of legislative record in this
paragraph.
Further evidence of legislative intent is also found by again looking to Chapter 3 of the Act which
provides for access to legislative records. Section 303(b) of the Act states, inter alia, “A legislative record
in the possession of a legislative agency... shall be presumed to be available in accordance with this Act.
The presumption shall not apply if: (1) the record is exempt under section 708...” This evidences an
intent that section 708 be read to limit access to records which are already legislative records rather
than granting an increased access to an entirely new class of records not already defined as legislative
records.
This opinion has already determined that, in the first instance, correspondence between a
member of the Senate and a lobbyist is not in and of itself a legislative record as that term is defined in
the Act. Exception provisions of the Act cannot be applied to transform such records into accessible
legislative records. Therefore, the denials issued by the Senate’s Open Records Officer must be
sustained.
Mark Corrigan
Senate Appeals Officer
09-4
Appeal of Scolforo
Senate
Notes:
1. “Legislative record.” Any of the following relating to a legislative agency or a standing
committee, subcommittee or conference committee of a legislative agency:
(1) A financial record.
(2) A bill or resolution that has been introduced and amendments offered thereto in committee
or in legislative session, including resolutions to adopt or amend the rules of a chamber.
(3) Fiscal notes.
(4) A cosponsorship memorandum.
(5) The journal of a chamber.
(6) The minutes of, record of attendance of members at a public hearing or a public committee
meeting and all recorded votes taken in a public committee meeting.
(7) The transcript of a public hearing when available.
(8) Executive nomination calendars.
(9) The rules of a chamber.
(10) A record of all recorded votes taken in legislative session.
(11) Any administrative staff manuals or written policies.
(12) An audit report prepared pursuant to the act of June 30, 1970 (P.L. 442, No. 151) entitled,
“An act implementing the provisions of Article VIII, section 10 of the Constitution of
Pennsylvania, by designating the Commonwealth officers who shall be charged with the
function of auditing the financial transactions after the occurrence thereof of the Legislative and
Judicial branches of the government of the Commonwealth, establishing a Legislative Audit
Advisory Commission, and imposing certain powers and duties on such commission.”
(13) Final or annual reports required by law to be submitted to the General Assembly.
(14) Legislative Budget and Finance Committee reports.
(15) Daily legislative session calendars and marked calendars.
(16) A record communicating to an agency the official appointment of a legislative appointee.
(17) A record communicating to the appointing authority the resignation of a legislative
appointee.
(18) Proposed regulations, final form regulations and final-omitted regulations submitted to a
legislative agency.
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Appeal of Scolforo
Senate
(19) The results of public opinion surveys, polls, focus groups, marketing research or similar
efforts designed to measure public opinion funded by a legislative agency.
09-6
Appeal of Scolforo
Pennsylvania House of Representatives
No. 2009-0001 SCO
February 24, 2009
Reporter's summary: Associated Press reporter filed a request under the new Right-to-Know Law
seeking access to all 2008 correspondences between Representative Sam Smith and any registered
lobbyists. The request was denied because communications between Representatives and lobbyists do
not fall under the definition of a legislative document and are therefore not accessible to the public. The
decision was upheld on appeal.
Headnotes:
of information, the General Assembly limited the types of documents legislative agencies must
provide public access to.
Legislative intent – Section 708 merely limits what has already been determined to be a publicly
accessible legislative record. Section 708 cannot be read to increase access to those records not
defined as legislative records.
statutory definition of "legislative record" and is not accessible under the Right-to-Know-Law.
Section 1102 – By authorizing the appeals officer to hold a hearing, take evidence and review
information, the Right-to-Know Law implies that appeals officers use a de novo standard of review.
Case law – Courts have held that the accessibility of records depends greatly on who holds them. This
decision cites two cases involving salary information where when held by a State university the
information was not publicly accessible, but when held by a State agency the same salary information
was deemed accessible. Roy v. Pennsylvania State University, 130 Pa Commonwealth Ct. 468, 568 A.2d
751 (1990); and Pennsylvania State University v. State Employees' Retirement Board, 594 Pa
Commonwealth Ct. 244, 935 A.2d 530 (2007).
See, also, Appeal of Scolforo (Senate, 01-2009, 02-2009) and Appeal of Scolforo (House, 2009-0002 SCO).
09-7
Appeal of Scolforo
House of Representatives
Decision
This is an appeal pursuant to Section 1101(a)(1) of the Right-To-Know Law, (Act of Feb. 14, 2008, No. 3,
P. L. 6) (the “RTKL”). This appeal was filed on January 26, 2009 by Mark Scolforo, Reporter for the
Associated Press, Room 526 E Floor, Main Capitol, Harrisburg, PA 17120 (“Requestor”), to a denial by
John R. Zimmerman, Open Records Officer, Republican Caucus, PA House of Representatives, Room B29, Main Capitol, Harrisburg, PA 17120 (“Open Records Officer.”)
By letter dated January 1, 2009, Requestor sought access to 2008 correspondence between Rep. Sam
Smith and lobbyists. On January 8, 2009, the Open Records Officer issued a letter denying Requestor’s
access to requested documents. The January 8, 2009 denial identified the record(s) requested, the
specific reasons for the denial including citation to supporting legal authority, identified the openrecords officer who issued the denial, listed the date of the response, and identified the procedure to
appeal the denial including the person to whom such appeal should be directed. Accordingly, the denial
met the requirements of Section 903 of the RTKL. Requestor appealed the denial, timely filing it within
the 15 business days mandated by Section 1101 of the RTKL, and addressing the grounds stated for the
denial.
Pursuant to Section 1102 of the RTKL, by letter dated January 27, 2009 (amended on January 29, 2009
following the parties’ agreed request for an extension), both parties were given an opportunity to
submit any additional documents that they wished to have considered by this Appeals Officer prior to
the determination. On February 2, 2009, the House Republican Caucus submitted a memorandum
supporting the denial; no additional documents were submitted by the Requestor.
Statement of Facts
There are no factual disputes that arise from the parties’ submissions. The facts discerned from
the submissions are as follows:
1. Requestor submitted a letter, dated January 1, 2009, to the office of Rep. Samuel Smith pursuant to
the RTKL, in pertinent part, stating: “I am requesting access to correspondence between you and
registered lobbyists that occurred during calendar year 2008.”
2. In accordance with Section 901 of the RTKL, within the statutory 5 business days response period1
John Zimmerman, Open Records Officer for the House Republican Caucus, by letter dated January 8,
2009, denied the request “because the requested record is not a legislative record as defined by §102.”
3. On January 26, 2009 Requestor hand-delivered a letter to this Appeals Officer appealing Mr.
Zimmerman’s denial (“Letter Appeal”), which set forth the basis for his position that the denial was in
error.
4. Pursuant to Section 1102 (a)(1) of the RTKL, by letter dated January 27, 2009, both parties were
afforded an opportunity to submit any additional documents by Noon on January 30, 2009 to this
Appeals Officer that they wished to have considered. At the mutual request of the parties, by letter
dated January 29, 2009, the period for submission of documents was extended to Noon on February 3,
09-8
Appeal of Scolforo
2009. On February 2, 2009, Brett Feese, Chief Counsel for the Republican Caucus, submitted a 4-page
memorandum opposing the appeal. (“Opposition to Appeal”). Requestor did not submit any additional
documents.
Discussion
The Open Records Officer denied the request “because the requested record is not a legislative record
as defined by Section 102.” In the Opposition to Appeal, the Republican Caucus argues that: 1)
correspondence between a lobbyist and a member is not a “legislative record”, and 2) the request
should be denied for lack of sufficient specificity. In the Letter Appeal, Requestor argues that sections of
the RTKL other than Section 102 grant access to agency records, including legislative records, and that
the legislative record of Section 708 (b) (29) of the RTKL …echoes a proposal passed by the Speaker’s
Reform Commission2, and that the draft RTKL legislation when it was considered in the House of
Representatives should be “viewed as the progeny of Section 708(b)(29) which evidences an intent to
allow access to lawmakers’ correspondence with registered lobbyists.” (Italics added.)
A. Standard of Review
The RTKL does not expressly provide a standard of review regarding appeals. Supporting de novo
review, or a broad standard of review, Section 1101 (a)(1) mandates that the appeals officer “set a
schedule for the [parties] to submit documents in support of their positions.” Id. (emphasis added). The
RTKL does not restrict the documents that can be submitted nor does it proscribe the appeals officer’s
authority to request documents which can be submitted. Instead, the RTKL broadly buttresses that
authority by directing the appeals officer to “review all information filed relating to the request.” § 1102
(a)(2) (emphasis added)). Additionally, among other things, the appeals officer is authorized by the RTKL
to hold a hearing and admit testimony, documents and other evidence which the appeals officer believes
to be reasonably probative and relevant to an issue in dispute. Id. (Emphasis added).
Accordingly, a de novo or broad standard of review will be used in reviewing appeals filed under
the RTKL.3
B. Legislative Records
The Requestor has requested access to any correspondence between Rep. Samuel Smith and “registered
lobbyists that occurred during calendar year 2008.” The House Republican Caucus argues that the
requested records do not meet the definition of a “legislative record” and are not subject to disclosure.
In contrast, Requestor argues that the record does meet that definition and should be disclosed. Based
upon these specific arguments of the parties, and for the reasons set forth below, the Appeals Officer
affirms the decision of the Open Records Officer.4
The RTKL separately defines Commonwealth agency, judicial agency, local agency, and legislative agency
and grants access to certain records possessed by each of those agencies. In the case of legislative
records, the RTKL defines a “legislative agency” as one of 15 identified legislative entities, and
specifically identifies the 19 types of records defined as “legislative records.” §102. A legislative record
in the possession of a legislative agency is then presumed to be available for public access unless, it is: 1)
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Appeal of Scolforo
exempt from disclosure under section 708(b); 2) protected by a privilege; or 3) exempt from disclosure
under any other Federal or State law, regulation, judicial order or decree. §305. A legislative agency
claiming that a legislative record is exempt bears the burden of proving exemption by a preponderance
of evidence. §708 (a)(2). If a record in the possession of a legislative agency falls within the definition of
a “legislative record” and is not exempt or privileged from disclosure, it must be disclosed. §§303, 305.
In sum, under the framework set forth in the RTKL regarding the General Assembly, determinations are
first made whether a record request was made for a “legislative record” that is possessed by a
“legislative agency.” If the determinations are made in the affirmative, then the burden falls on the
legislative agency to disclose, or prove by a preponderance of the evidence, that an exemption or
privilege preventing disclosure applies.
RTKL Section 102 lists 19 specific categories of records that fall within the definition of “legislative
record.” Included in that definition are items such as: financial records, introduced bills and resolutions,
fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, and daily legislative
calendars. §102. The list of 19 categories does not include correspondence between a lobbyist and a
legislator. In fact, the only references in the list of 19 that involve “communications” from or to a
legislator, are: 1) a cosponsorship memorandum, 2) final or annual reports required by law to be
submitted to the General Assembly, 3) a record communicating to the appointing authority the
resignation of a legislative appointee, and 4) the results of public opinion surveys, polls, focus groups,
marketing research or similar efforts designed to measure public opinion funded by a legislative agency.
Id.
In this case, the Open Records Officer correctly stated that the requested records are not included
within the definition of “legislative records.” Furthermore, there is no common or approved usage of
any of the words included within the 19 categories of “legislative records” that would support an
expansion of that definition to grant the access to the records sought by Requestor.5 Indeed, Requestor
does not even argue that the Open Records Officer’s interpretation of Section 102 was in error. Instead,
Requestor argues that the definition of “legislative records” is “refined” by Section 708, Exceptions for
public records. Requester’s reliance on those exceptions and prior draft legislation is misplaced.
Requestor contends that 4 clauses6 of Section 708(b) support an expansive reading of the definition of
legislative records.7 He points out that the enactment of Section 708(b)(29) exempts from disclosure
correspondence “between a person and a member of the General Assembly” which would identify a
person seeking assistance or services, but also states that the exemption does not apply to
correspondence “between a member of the General Assembly and a principal or lobbyist under 65
Pa.C.S. Ch. 13A (relating to lobbying disclosure).” He argues that this provision both protects
legislator/constituent correspondence and permits disclosure of legislator/lobbyist correspondence. As
a result, he argues, the legislature intended to expand the definition of legislative records beyond that
which is set forth in section 102. Requestor’s argument, however, is flawed. First, as a threshold matter,
the scope of what constitutes a legislative record is much narrower than what broadly constitutes a
public record. The RTKL distinguishes “public records” from “legislative records” and establishes
different parameters for their disclosures. The definition of “public record” under the RTKL is more
expansive than the definition of “legislative record.” A public record is broadly defined as a record of a
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Appeal of Scolforo
Commonwealth agency or local agency that: 1) is not exempt under 708; 2) is not exempt from being
disclosed under Federal or State law or regulation or judicial order or decree; or 3) is not protected by a
privilege. §102. In contrast, a legislative record under the RTKL is specifically limited to 19 categories of
records. There is no equivalent or even similar limitation on the categories of documents that are
classified as public records.
By way of background for Section 708 (b)(29), the Opposition to Appeal explains that Members of the
General Assembly receive requests for constituent assistance on a daily basis concerning personal and
confidential matters, such as vehicle driver licenses suspensions, PACE applications, licensing issues, and
health insurance coverage. The requests and supporting documents are often forwarded by the
Members to Commonwealth or local agencies. These documents become public records when they fall
into the possession of a Commonwealth or local agency. Exemption 29 makes it clear that although the
documents are now public records, the constituent’s privacy will continue to be protected under the
exemption. Opposition to Appeal at 2. This argument is persuasive as our courts have recently held that
otherwise nondisclosable records may become available when a request for the same records is made
to an agency that has a duty to disclose records in its possession. Roy v. The Pennsylvania State
University, 130 Pa.Cmwlth. 468, 568 A.2d 751 (1990) (holding that salary information held by state
university is not a “public record” as state university is not a state agency within the meaning of the
RTKA), and Pennsylvania State University v. State Employees' Retirement Bd., 594 Pa 244, 935 A.2d 530,
(2007) (holding that state university salary information held by retirement agency is a “public record”).
Finally, the list of exceptions in Section 708 of the RTKL does not refine, or otherwise modify the
definition of a “legislative record.” The definitions under Section 102 are explicit and specifically
enumerate what is considered a legislative record. The definitions are clear and unambiguous on their
face, and they do not require the suggested “refinement.” Under well-established principles of
statutory interpretation, these definitions should be accorded their customary and approved usages,
and specific provisions should prevail over general ones. 1 Pa. C.S. §§1903, 1933. Additionally, under the
framework set forth in the RTKL, consideration of the exceptions under 708(b) arises only after a
determination has been made that a presumptive disclosable legislative record has been requested.
Only then is consideration of the exceptions under 708(b) appropriate.
Conclusion
The General Assembly has expressly listed the types of documents which are publicly accessible and
available as legislative records under the RTKL. The documents requested herein do not fall within the
purview of that statute and need not be disclosed.
Reizdan Moore
House of Representatives Appeals Officer
09-11
Appeal of Scolforo
Notes:
1. Mr. Zimmerman’s January 8, 2009 denial letter indicates that Requestor’s letter dated January 1,
2009 was not received until January 5, 2009, which would have resulted in a response deadline
of January 12, 2009.
2. This was a special committee appointed by the Speaker to consider amendments to the 20072008 Rules of the Pennsylvania House of Representatives.
3. A broad standard of review is comparable to the wide latitude of review granted to the final
finders of fact in administrative hearings. In Unemployment Compensation matters, appeals are
handled by referees and the Board of Unemployment Compensation. Referees review decisions
of the Department of Labor personnel. The referee’s scope of review is limited by statute to
consideration of the issues expressly ruled upon in the decision being appealed. 34 Pa. Code
§101.87. Appeals of the referee’s decision are made to the Board of Unemployment
Compensation. That Board is the ultimate fact-finder in unemployment cases and is empowered
to resolve conflicts in evidence, determine the credibility of witnesses, and determine the
weight to be accorded evidence. The Board can affirm, modify, or reverse the referee’s decision
based on previously submitted evidence, or after taking further evidence. The authority granted
to appeals officers under section 1102 of the RTKL more closely approximates that granted to
the Board in unemployment compensation cases.
4. In its Opposition to the Appeal, the House Republican Caucus raises the insufficiency of
specificity of the request. Because the Appeals Officer finds that the requested documents here
are not Legislative Records as set forth in the RTKL, no determination on this additional
argument is necessary.
5. Additionally, under Section 1903 (a) of the Statutory Construction Act, words and phrases are
construed according to their common and approved usage. 1 Pa.C.S. §1903 (a). When the words
of a statute are free and clear from ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit. 1 Pa.C.S. §1921 (b).
6. Sections 708 (b)(7)(iii), 708 (b)(10)(i)(A), 708 (b)(10(i)(B), and 708 (b)(29).
7. Although the heading of Section 708 is “Exceptions for public records” it is clear that this section
also applies to legislative records. Subsection (b) of Section 305, which governs the
presumptions regarding legislative records, incorporates by reference the 30 exceptions of
Section 708. The exceptions nullify the presumption of disclosure if one of the 30 listed
exemptions applies. These sections are part of the same statute, apply to the same subjects, and
should be read in pari material. 1Pa.C.S. §1932. This results in the application of the exceptions
of Section 708 to legislative records.
09-12
Appeal of Scolforo
No. 2009-0002 SCO
February 24, 2009
Reporter's summary: Associated Press reporter filed a request under the new Right-to-Know Law
seeking access to all 2008 correspondences between Representative William DeWeese and any
registered lobbyists. The request was denied because communications between Representatives and
lobbyists do not fall under the definition of a legislative document and are therefore not accessible to the
public. The decision was upheld on appeal.
Headnotes:
Delineations – By creating the category of "legislative records" and delineating 19
subcategories of information, the General Assembly limited the types of documents the
legislative agencies must provide public access to.
Legislative intent – The procedure for determining if a record in the possession of a
legislative agency is public is to first determine if the record is a legislative record. If it is a
legislative record, it is presumptively a publicly accessible record unless it is exempted by
section 708 or another part of Pennsylvania or Federal law.
Legislative intent – Section 708 merely limits what has already been determined to be a
publicly accessible legislative record. Section 708 cannot be read to increase access to those
records not defined as legislative records.
statutory definition of "legislative record" and is therefore not publicly accessible under the Right-toKnow Law.
Section 1102 – By authorizing the appeals officer to hold a hearing, take evidence and review all
information, the Right-to-Know Law implies that appeals officers are to use a de novo standard of
review.
Case law – Courts have held that the accessibility of records depends greatly on who holds them. This
decision cites two cases involving salary information where when held by a State university the
information was not publicly accessible, but when held by a State agency the same information was
deemed a public record. Roy v. Pennsylvania State University, 130 Pa. 468, 568 A.2d 751 (1990); and
Pennsylvania State University v. State Employees' Retirement Board., 594 Pa. 244, 935 A.2d 530 (2007).
See, also, Appeal of Scolforo (Senate, 01-2009,02-2009) and Appeal of Scolforo (House, 2009-0001 SCO)
09-13
Appeal of Scolforo
Discussion
This is an appeal pursuant to Section 1101(a)(1) of the Right-To-Know Law, (Act of Feb. 14, 2008,
No. 3, P. L. 6) (the “RTKL”). This appeal was filed on January 26, 2009 by Mark Scolforo, Reporter for the
Associated Press, Room 526 E Floor, Main Capitol, Harrisburg, PA 17120 (“Requestor”), to a denial by
Roger Nick, Open Records Officer, Pennsylvania House of Representatives, Room 129, Main Capitol,
Harrisburg, PA 17120 (“Open Records Officer.”)
By letter dated January 1, 2009, Requestor sought access to 2008 correspondence between Rep.
H. William DeWeese and lobbyists. On January 8, 2009, the Open Records Officer issued a letter denying
Requestor’s access to requested documents. The January 8, 2009 denial identified the record(s)
requested, the specific reasons for the denial including citation to supporting legal authority, identified
the open-records officer who issued the denial, listed the date of the response, and identified the
procedure to appeal the denial including the person to whom such appeal should be directed.
Accordingly, the denial met the requirements of Section 903 of the RTKL. Requestor appealed the
denial, timely filing it within the 15 business days mandated by Section 1101 of the RTKL, and addressing
the grounds stated for the denial.
Pursuant to Section 1102 of the RTKL, by letter dated January 27, 2009 (amended on January 29,
2009 following the parties’ agreed request for an extension), both parties were given an opportunity to
submit any additional documents that they wished to have considered by this Appeals Officer prior to
the determination. On February 3, 2009, the Open Records Officer submitted a memorandum
supporting the denial; no additional documents were submitted by the Requestor.
Statement of Facts
1. Requestor submitted a letter, dated January 1, 2009, to the office of H. William DeWeese
pursuant to the RTKL, in pertinent part, stating: “I am requesting access to correspondence between you
and registered lobbyists that occurred during calendar year 2008.”
2. In accordance with Section 901 of the RTKL, within the statutory 5 business days response
period the Open Records Officer for the Pennsylvania House of Representatives, by letter dated January
8, 2009, denied the request “because the requested record is not a legislative record as defined by
§102.”
1
3. On January 26, 2009 Requestor hand-delivered a letter to this Appeals Officer appealing Mr.
Nick’s denial (“Letter Appeal”), which set forth the basis for his position that the denial was in error.
4. Pursuant to Section 1102 (a)(1) of the RTKL, by letter dated January 27, 2009, both parties
were afforded an opportunity to submit any additional documents by Noon on January 30, 2009 to this
Appeals Officer that they wished to have considered. At the mutual request of the parties, by letter
dated January 29, 2009, the period for submission of documents was extended to Noon on February 3,
2009. On February 3, 2009, the Open Records Officer submitted a 7-page memorandum opposing the
appeal. (“Opposition to Appeal”). Requestor did not submit any additional documents.
09-14
Appeal of Scolforo
Discussion
The Open Records Officer denied the request “because the requested record is not a legislative
record as defined by Section 102. In the Letter Appeal, Requestor argues that sections of the RTKL other
than Section 102 grant access to agency records, including legislative records, and that the legislative
record of Section 708 (b)(29) of the RTKL …echoes a proposal passed by the Speaker’s Reform
Commission2, and that the draft RTKL legislation when it was considered in the House of
Representatives should be “viewed as the progeny of Section 708(b)(29) which evidences an intent to
allow access to lawmakers’ correspondence with registered lobbyists.” (Italics added). In the Opposition
to Appeal, the Open Records Officer argues that: 1) correspondence between a lobbyist and a member
is not a “legislative record”, and 2) Requestor’s reliance on Section 708 of the RTKL is misguided.
the RTKL.3
The Requestor has requested access to any correspondence between Rep. H. William DeWeese
and “registered lobbyists that occurred during calendar year 2008.” The Open Records Officer argues
that the requested records do not meet the definition of a “legislative record” and are not subject to
disclosure. In contrast, Requestor argues that the record does meet that definition and should be
disclosed. Based upon these specific arguments of the parties, and for the reasons set forth below, the
Appeals Officer affirms the decision of the Open Records Officer.
The RTKL separately defines Commonwealth agency, judicial agency, local agency, and
legislative agency and grants access to certain records possessed by each of those agencies. In the case
of legislative records, the RTKL defines a “legislative agency” as one of 15 identified legislative entities,
and specifically identifies the 19 types of records defined as “legislative records.” §102. A legislative
record in the possession of a legislative agency is then presumed to be available for public access unless,
it is: 1) exempt from disclosure under section 708(b); 2) protected by a privilege; or 3) exempt from
disclosure under any other Federal or State law, regulation, judicial order or decree. §305. A legislative
agency claiming that a legislative record is exempt bears the burden of proving exemption by a
preponderance of evidence. §708 (a)(2). If a record in the possession of a legislative agency falls within
the definition of a “legislative record” and is not exempt or privileged from disclosure, it must be
disclosed. §§303, 305.
In sum, under the framework set forth in the RTKL regarding the General Assembly,
determinations are first made whether a record request was made for a “legislative record” that is
possessed by a “legislative agency.” If the determinations are made in the affirmative, then the burden
09-15
Appeal of Scolforo
falls on the legislative agency to disclose, or prove by a preponderance of the evidence, that an
exemption or privilege preventing disclosure applies.
RTKL Section 102 lists 19 specific categories of records that fall within the definition of
“legislative record.” Included in that definition are items such as: financial records, introduced bills and
resolutions, fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, and daily
legislative calendars. §102. The list of 19 categories does not include correspondence between a lobbyist
and a legislator. In fact, the only references in the list of 19 that involve “communications” from or to a
Id.
In this case, the Open Records Officer correctly stated that the requested records are not
included within the definition of “legislative records.” Furthermore, there is no common or approved
usage of any of the words included within the 19 categories of “legislative records” that would support
an expansion of that definition to grant the access to the records sought by Requestor.4 Indeed,
Requestor does not even argue that the Open Records Officer’s interpretation of Section 102 was in
error. Instead, Requestor argues that the definition of “legislative records” is “refined” by Section 708,
Exceptions for public records. Requester’s reliance on those exceptions and prior draft legislation is
misplaced.
Requestor contends that 4 clauses5 of Section 708 (b) support an expansive reading of the
definition of legislative records.6 He points out that the enactment of Section 708 (b)(29) exempts from
disclosure correspondence “between a person and a member of the General Assembly” which would
identify a person seeking assistance or services, but also states that the exemption does not apply to
correspondence “between a member of the General Assembly and a principal or lobbyist under 65
Pa.C.S. Ch. 13A (relating to lobbying disclosure).” He argues that this provision both protects
legislator/constituent correspondence and permits disclosure of legislator/lobbyist correspondence. As
a result, he argues, the legislature intended to expand the definition of legislative records beyond that
which is set forth in section 102. Requestor’s argument, however, is flawed.
First, as a threshold matter, the scope of what constitutes a legislative record is much narrower
than what broadly constitutes a public record. The RTKL distinguishes “public records” from “legislative
records” and establishes different parameters for their disclosures. The definition of “public record”
under the RTKL is more expansive than the definition of “legislative record.” A public record is broadly
defined as a record of a Commonwealth agency or local agency that: 1) is not exempt under 708; 2) is
not exempt from being disclosed under Federal or State law or regulation or judicial order or decree; or
3) is not protected by a privilege. §102. In contrast, a legislative record under the RTKL is specifically
limited to 19 categories of records. There is no equivalent or even similar limitation on the categories of
documents that are classified as public records.
By way of background for Section 708 (b)(29), the Opposition to Appeal explains that:
The purpose of §708 (b)(29) is to prevent public disclosure of otherwise sensitive
information which typically comes through the legislative branch for processing by a
Commonwealth or local agency. Id. at §708(b)(29). Section 708(b)(29) is intended to
shield the availability of constituent correspondence and attendant documents
09-16
Appeal of Scolforo
which might be requested under the RTKL from the Commonwealth or local agency
once the record is no longer in the possession of the Legislature. Id.
Opposition to Appeal at 5. The Opposition further states that: “the Legislature has the strongest
desire to protect constituent correspondence and related documents from public disclosure.” Id.
This argument is persuasive as our courts have recently held that otherwise nondisclosable
records may become available when a request for the same records is made to an agency that has
a duty to disclose records in its possession. Roy v. The Pennsylvania State University, 130
Pa.Cmwlth. 468, 568 A.2d 751 (1990) (holding that salary information held by state university is not
a “public record” as state university is not a state agency within the meaning of the RTKA), and
Pennsylvania State University v. State Employees' Retirement Bd., 594 Pa 244, 935 A.2d 530, (2007)
(holding that state university salary information held by retirement agency is a “public record”).
Finally, the list of exceptions in Section 708 of the RTKL does not refine, or otherwise modify the
definition of a “legislative record.” The definitions under Section 102 are explicit and specifically
enumerate what is considered a legislative record. The definitions are clear and unambiguous on their
face, and they do not require the suggested “refinement.” Under well-established principles of
statutory interpretation, these definitions should be accorded their customary and approved usages,
and specific provisions should prevail over general ones.
1 Pa.C.S. §§1903, 1933. Additionally, under the framework set forth in the RTKL, consideration of the
exceptions under 708(b) arises only after a determination has been made that a presumptive disclosable
legislative record has been requested. Only then is consideration of the exceptions under 708(b)
appropriate.
Conclusion
The General Assembly has expressly listed the types of documents which are publicly accessible
and available as legislative records under the RTKL. The documents requested herein do not fall within
the purview of that statute and need not be disclosed.
Reizdan Moore
09-17
Appeal of Scolforo
Notes:
1. Mr. Nick’s January 8, 2009 denial letter indicates that Requestor’s letter dated January 1, 2009 was
not received until January 5, 2009, which would have resulted in a response deadline of January 12,
2009.
2. This was a special committee appointed by the Speaker to consider amendments to the 2007-2008
Rules of the Pennsylvania House of Representatives.
3. A broad standard of review is comparable to the wide latitude of review granted to the final finders of
fact in administrative hearings. In Unemployment Compensation matters, appeals are handled by
referees and the Board of Unemployment Compensation. Referees review decisions of the Department
of Labor personnel. The referee’s scope of review is limited by statute to consideration of the issues
expressly ruled upon in the decision being appealed. 34 Pa. Code §101.87. Appeals of the referee’s
decision are made to the Board of Unemployment Compensation. That Board is the ultimate fact-finder
in unemployment cases and is empowered to resolve conflicts in evidence, determine the credibility of
witnesses, and determine the weight to be accorded evidence. The Board can affirm, modify, or reverse
the referee’s decision based on previously submitted evidence, or after taking further evidence. The
authority granted to appeals officers under section 1102 of the RTKL more closely approximates that
granted to the Board in unemployment compensation cases.
construed according to their common and approved usage. 1 Pa.C.S. §1903 (a). When the words of a
statute are free and clear from ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit. 1 Pa.C.S. §1921 (b).
5. Sections 708 (b)(7)(iii), 708 (b)(10)(i)(A), 708 (b)(10(i)(B), and 708 (b)(29).
6. Although the heading of Section 708 is “Exceptions for public records” it is clear that this section also
applies to legislative records. Subsection (b) of Section 305, which governs the presumptions regarding
legislative records, incorporates by reference the 30 exceptions of Section 708. The exceptions nullify
the presumption of disclosure if one of the 30 listed exemptions applies. These sections are part of the
same statute, apply to the same subjects, and should be read in pari material. 1 Pa.C.S. §1932. This
results in the application of the exceptions of Section 708 to legislative records.
09-18
Appeal of Wolf
No. 2009-0003 WOL
March 2, 2009
Reporter's summary: Ms. Wolf requested the name and date of, as well as the resume,
employment application and all communications regarding, the hiring of the Director of Administration
for the House Democrats in 2008.The request was granted as to the name and date of the hiring, but
denied as to the remaining information because the information was not an enumerated legislative
record and therefore is not a public record. The decision was upheld in this appeal.
Headnotes:
Delineations – By creating the category of "legislative records" and delineating 19
subcategories of information, the General Assembly limited the types of documents the
legislative agencies must provide access to as public records.
Delineations – If legislation has specific delineations, the court system and appeals officers
cannot interpret the specific delineations as including items not mentioned in the list.
Legislative intent – The procedure for determining if a record in the possession of a
legislative agency is public is to first determine if the record is a legislative record. If it is a
legislative record, it is presumptively a publicly accessible record unless it is exempted by
section 708 or another part of Pennsylvania or Federal law.
Legislative intent – Section 708 merely limits what has already been determined to be a
publicly accessible legislative record. Section 708 cannot be read to increase access to those
records not defined as legislative records.
Section 102 – Resumes, employment applications and communications regarding hiring decisions are not
considered legislative records under the Right-to-Know Law.
Section 901 – Although a request may be deemed denied due to the passage of five business days, in this
case it was a harmless error because the requestor did not object to the passage of time and the
response was issued merely one day past the deadline. It is noted that there is no recourse other than to
declare the record denied.
review.
09-19
Appeal of Wolf
Decision
This is an appeal pursuant to Section 1101(a)(1) of the Right-To-Know Law, (Act of Feb. 14, 2008,
No. 3, P. L. 6) (the “RTKL”), received from Susan T. Wolf (“Requestor”) on February 2, 2009 1. This is an
appeal of a partial denial issued by Roger Nick, Open Records Officer, Pennsylvania House of
Representatives, Room 129, Main Capitol, Harrisburg, PA 17120 (“Open Records Officer”).
On January 12, 2009, Requestor sought access to various employment related documents
pertaining to the 2008 hiring of the Director of Administration of the Democratic Caucus, Pennsylvania
House of Representatives. On January 20, 2009, the Open Records Officer issued a decision partially
granted and partially denied the request, and further identified the record(s) requested, the specific
reasons for the denial including citations to supporting legal authority, identified the open-records
officer who issued the denial, listed the date of the response, and identified the procedure to appeal the
denial including the person to whom such appeal should be directed. (“Partial Denial”). The Partial
Denial met the requirements of Section 903 of the RTKL. Requestor appealed the Partial Denial, timely
filing it within the 15 business days mandated by Section 1101 of the RTKL, and addressing the grounds
stated in the Partial Denial.
Statement of Facts
1. On January 12, 2009, Requestor, on the House of Representatives’ Right-To-Know form,
submitted a records request to the Open Records Officer:
For the person hired as Director of Administration - House Democrats in 2008
1) Name of individual and date of hire
2) Employment application
3) Resume
4) All notes, letters, internal memorandum and correspondence,
including emails related to the hiring of the individual.
2. The House of Representatives failed to send a response by January 19, 2009, the fifth
business day after receipt of the request. Accordingly, the request was deemed denied pursuant
to Section 901 of the RTKL.
3. Thereafter, the Open Records Officer, by letter dated January 20, 2009, denied the request in
part, and granted it in part. The Open Records Officer, in his Partial Denial, stated that the requested
information does not constitute a legislative record pursuant to the Section 102 of the RTKL.
Nonetheless, he provided the name of the individual and the date of hire “because this information is
routinely made public.” The remainder of the request was denied2.
4. On February 2, 2009, this Appeals Officer received a letter, dated January 23, 2009, appealing
the Partial Denial which set forth the basis for her position that the denial was in error. (“January 23
Letter Appeal”).
09-20
Appeal of Wolf
5. Pursuant to Section 1102 (a)(1) of the RTKL, by letter dated February 2, 2009, both parties
were afforded an opportunity to submit any additional documents by Noon on February 6, 2009 to this
Appeals Officer that they wished to have considered; Requestor was also directed to provide a copy of
the January 20, 2009 Partial Denial from which she appealed. On February 5, 2009, Requestor provided
a copy of the Partial Denial with a slightly modified appeal letter, but did not submit any additional
documents. (“February 5 Letter Appeal”). On February 6, 2009, the Open Records Officer submitted a 6page memorandum, with attachments, opposing the appeal. (“Opposition to Appeal”).
Discussion
The Open Records Officer denied the request “because the requested record is not a legislative
record as defined by Section 102.” In the January 23 Letter Appeal and the February 5 Letter Appeal,
Requestor cites Section 708 (b)(7) of the RTKL, and argues that the requested records should be
available as the requested records do not fall within the list of that section’s 9 exceptions from
disclosure. In the Opposition to Appeal, the Open Records Officer argues that: 1) the requested records
are not accessible as they are not “legislative records” as defined in Section 102 of the RTKL, and 2)
Requestor’s reliance on Section 708 of the RTKL is misguided.
the RTKL.3
The Requestor has requested access to certain employment records (the name, date of hire,
employment application, resume and all notes, letters, internal memorandum and correspondence
including emails related to the hiring) of the person hired in 2008 as the Director of Administration of
the House Democratic Caucus. Requestor argues that the requested records are not listed within the 9
exceptions to disclosure set forth in Section 708 (b)(7), it is understood that the records are included
within the RTKL, and therefore should be available. For the reasons set forth below, it is determined
that the requested records are not encompassed within the definition of legislative records, and the
Partial Denial of the Open Records Officer is affirmed.
legislative agency and grants access to certain records possessed by each of those agencies. “Public
records” are distinguished from “legislative records” under the RTKL and the scope of what constitutes a
legislative record is much narrower than what constitutes a public record. A record in the possession of
a Commonwealth agency or a local agency is presumed to be a public record and must be made
available unless exempted by Section 708, protected by a privilege, or exempt under a Federal or State
law or regulation or judicial order or decree. §§301, 305.
09-21
Appeal of Wolf
In contrast, the definition of a legislative record under the RTKL is specifically limited to 19 categories of
The RTKL defines a “legislative agency” as one of 15 identified legislative entities, and specifically
identifies the 19 types of records defined as “legislative records.” §102. A legislative record in the
possession of a legislative agency is then presumed to be available for public access unless, it is: 1)
exempt from disclosure under section 708(b); 2) protected by a privilege; or 3) exempt from disclosure
Section 102 of the RTKL lists 19 specific categories of records that fall within the definition of
resolutions, fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, daily
legislative calendars, and administrative staff manuals or written policies. §102. The 19 categories
explicitly listed in the RTKL do not include employment records of individual legislative employees. Our
courts have consistently applied a fundamental maxim of statutory construction: “expresio unius est
exclusio alterius,” which stands for the principle that the mention of one thing in a statute implies the
exclusion of others not expressed. L.S. ex rel. A.S. v. Eschbach, 583 Pa 47, 56 874 A. 2d 1150, 1156
(2005); Com. v. Spotz, 552 Pa 499, 519, 716 A.2d 580, 590 (1998) (citing Windrim v. Nationwide
Insurance Co., 537 Pa. 129, 139, 641 A.2d 1154, 1159 (1994) (Cappy, J., concurring); Samilo v.
Commonwealth, 98 Pa.Cmwlth. 232, 510 A.2d 412, 413 (1986)). Under this well-established principle,
courts must refrain from expanding statutory provisions through the inclusion of subjects that were
omitted. L.S. ex rel. A.S. v. Eschbach, 583 Pa at 56, 874 A.2d at 1156.
In this case, the Open Records Officer correctly determined that the requested records are not
included within the definition of “legislative records.” Furthermore, there is no common or approved
usage of any of the words included within the 19 categories of “legislative records” that would support
an expansion of that definition to grant access to the records sought by Requestor.4
Requestor argues that the Open Records Officer misinterpreted Section 102 which was caused
by “inexperience” and does not represent an “avoidance of obligation.” Requestor further states that
she is forwarding a copy of her January 23 Letter Appeal to Barry Fox, Deputy Director, Office of Open
Records, Commonwealth of Pennsylvania to ensure assistance is made available to the [House of
Representatives] to help it post regulations and policies and become better versed in the full scope of
the RTKL. January 23 Letter Appeal at 2. This action highlights Requestor’s confusion over the
difference between public records and legislative records under the RTKL.
First, as an informational matter, the RTKL framework is clear that Mr. Fox’s office handles RTKL
appeals from Commonwealth agencies and from local agencies involving documents defined as “public
records.” His office has no jurisdiction over appeals from decisions by legislative agencies regarding
“legislative records.” The Pennsylvania House of Representatives and the Senate are legislative agencies
09-22
Appeal of Wolf
which have designated their own Appeals Officers to review denials by their Open Records Officers, and
both chambers have published their own policies pursuant to Section 504 of the RTKL.
Additionally, Requestor’s acknowledges that the requested records are not included in the 9
exceptions in Section 708 (b)(7). She asserts that it is understood from that omission that the requested
records should be included in the RTKL. Requestor’s assertion is fatally flawed. Under the framework set
forth in the RTKL, consideration of the exceptions under 708(b) arises only after a determination has
been made that a presumptive, disclosable legislative record--not a public record--has been requested.
Only then is consideration of the exceptions under 708(b) appropriate. Furthermore, a construction
that permitted the interpretation proffered by Requestor would contravene the well-established
principle: “expresio unius est exclusio alterius,” that the definition of legislative record cannot be
expanded to include subjects that are not contained in the explicit definition.
Conclusion
Reizdan Moore
09-23
Appeal of Wolf
Notes:
1. The appeal letter was dated January 23, 2009, but the letter was not deposited in the U.S. Mail
until 7 days later on January 30, 2009. It was received by this Appeals Officer on February 2,
2009.
2. The Open Record Officer’s January 20, 2009 letter indicates that the request was made on
January 12, 2009 but the denial was not issued until January 20, 2009. The 5 business days
response period expired on January 19, 2009, so the request was “deemed” denied. However,
Requestor did not object to the late response. Any objections that she may have had are
considered waived or moot. It is also noted that other than a “deemed” denial by a failure to
timely respond, the RTKL does not provide any other sanction for a response which exceeds the
deadline.
09-24
Appeal of Noll
No. 2009-0004 NOL
March 24, 2009
Reporter's summary: Requestor sought documents showing the process and purpose of a
meeting allegedly attended by the requestor that led to the approval of a specific wastewater plan. The
information requested included: how the meeting was convened, who attended, and all information used
to make a decision. The open records officer for the House of Representatives denied the request because
those records were not public under the Right-to-Know Law. The requestor admitted that he was not
seeking legislative records in a letter construed to be an appeal. Although he did not specifically state
that he was appealing the officer's decision, the appeals officer read the letter as though it were an
appeal and upheld the decision of the open records officer.
Headnotes:
Appeals - Although the requestor failed to state the grounds for appeal on and even seemed
unsure if he wanted to appeal, the appeals officer may still consider the matter and issue a
ruling.
Appeals – The fact that the requestor admits a document he is seeking is not a legislative
document is not fatal to the requestor's appeal.
must provide access to.
Section 102 – Documentation of a meeting, not involving a legislative agency, made for the legislator's
personal use is not mentioned in the list of 19 specific legislative records and therefore is not publicly
accessible through the legislative agencies. However, the requestor is free to contact a Commonwealth
or local agency to request that same information.
09-25
Appeal of Noll
Decision
This is an appeal pursuant to Section 1101 (a)(1) of the Right-To-Know Law, (Act of Feb. 14,
2008, No. 3, P. L. 6) (the “RTKL”), received from Donald Noll (“Requestor”) on March 9, 2009 1. This is an
appeal of a denial issued by Roger Nick, Open Records Officer, Pennsylvania House of Representatives,
Room 129, Main Capitol, Harrisburg, PA 17120 (“Open Records Officer”).
In a letter dated February 9, 2009, Requestor directed a letter to Rep. James Wansacz seeking
access to documents regarding a private meeting purportedly attended by him. On February 18, 2009,
the Open Records Officer issued a letter denying Requestor’s access to the requested documents
(“Denial”). The Denial met the requirements of Section 903 of the RTKL.
Statement of Facts
1. By letter dated February 9, 2009, Requestor sought from Rep. James Wansacz the following
regarding an August 11, 2008 private meeting that the representative allegedly attended:
a. Information about how the meeting was convened and whether
anyone from the Pennsylvania Department of Environmental
Protection beyond the level of the Regional Office, was invited and
in attendance.
b. Any and all documentation that you possess explaining the purpose
of the meeting and the discussions and decisions that led to the
submission and ultimate approval of Scott Township’s Revised 537
Wastewater Plan.
2. In his Denial, dated February 18, 2009, the Open Records Officer indicated that he had received
the letter and denied the request. The Open Records Officer stated that “the requested information
does not constitute a legislative record pursuant to the Section 102 of the RTKL and is not subject to
disclosure.” He provided the names, addresses, telephone numbers and email addresses of the Scott
Township Open Records Officer, and the Open Records Officer for the state Department of
Environmental Protection and indicated that those agencies may have information responsive to the
request.
3. In a letter to the Open Records Officer dated February 23, 2009 (“February 23rd Letter”),
Requestor stated that he was “writing to clarify a misstatement in [the February 18, 2009 Denial].”
Requestor stated that “it should be obvious that my letter to Representative James Wansacz of February
9, 2009 which was referred to you, has nothing to do with information pertaining to a legislative
record.”
4. On March 9, 2009, this Appeals Officer received a letter, dated March 1, 2009, from
Requestor (“March 1st Letter Appeal”). The letter referenced the original request, the Denial, and the
09-26
Appeal of Noll
February 23rd Letter as attachments, but nothing was attached. Additionally, it was unclear whether
Requestor had commenced an appeal, as Requestor had stated: “I am not sure if I must appeal his
decision since I have not requested any information pertaining to a legislative record, but by this letter I
wish to do so in order not to be technically remiss in this matter.” Requestor further stated that: “the
information that I am seeking has nothing to do with a legislative record.” Requestor also stated that he
had “written a letter of response to Mr. Nick taking issue with his characterization of the request.”
5. On March 10, 2009, a letter was sent to Requestor from this Appeals Officer requesting that
he clarify whether he had commenced an appeal, and provide copies of his request, the Denial and the
February 23rd Letter. A copy of the RTKL pamphlet law was enclosed for Requestor’s review, and he was
directed to note the appeal requirements of Section 1101 (a). Finally, Requestor was directed to submit
the requested information to this Appeal Officer by Noon on March 16, 2009 if he wished to have his
letter treated as an appeal.
6. On March 16, 2009 Requestor’s letter, dated March 12, 2009 (“March 12th Letter Appeal”),
was received; he provided the 3 attachments that were omitted in his March 1st Letter Appeal.
Responding to this Appeals Officer, Requestor stated:
“Mr. Wansacz attended a private meeting at which discussions and decisions of
a public nature occurred and [Requestor] was simply seeking any record that
Mr. Wansacz may have had of this meeting, [and that Requestor thinks he is]
entitled to this information.”
“When I wrote to you about the lack of certainty about the appeal, it was
because I did not believe that the information I was seeking would be
considered to be a Legislative record. For this reason I did not want to go
through an appeal process unnecessarily. I trust that this information will clarify
my position and that I will hear from you again concerning my original request
to Rep. Wansacz.”
7. Neither a hearing nor the submission of additional documents was deemed necessary to
resolve any issues inherent in this appeal.
Discussion
As a preliminary matter, it is noted that Requestor failed to perfect his appeal. Despite being
furnished with a copy of the RTKL and directed to the appeal requirements specified in Section 1101 (a),
Requestor’s March 1st and March 12th Letter Appeals fail to state the grounds upon which he asserts that
the record is a legislative record, or to otherwise address the basis of the Denial. Instead, Requestor
repeatedly admits that “his request has nothing to do with a legislative record.” Among other things, the
March 12th Letter Appeal states “Mr. Wansacz attended a private meeting at which discussions and
decisions of a public nature occurred and [Requestor] was simply seeking any record that Mr. Wansacz
may have had of this meeting, [and that Requestor thinks he is] entitled to this information.” Although
unclear, it may be that, Requestor is asserting that the requested record is a “public record” to which he
should be granted access.
Standard of Review
09-27
Appeal of Noll
schedule for the [parties] to submit documents in support of their positions.” Id. The RTKL does not
restrict the documents that can be submitted nor does it proscribe the appeals officer’s authority to
request documents which can be submitted. Instead, the RTKL broadly buttresses that authority by
directing the appeals officer to “review all information filed relating to the request.” § 1102 (a)(2)
(emphasis added). Additionally, among other things, the appeals officer is authorized by the RTKL to
hold a hearing and admit testimony, documents and other evidence which the appeals officer believes
to be reasonably probative and relevant to an issue in dispute. Id.
the RTKL.2
Legislative Records
The Requestor has requested access to certain records regarding a meeting at which Rep.
Wansacz was allegedly a participant. The Open Records Officer denied the request stating that the
records are not legislative records that must be disclosed. For the reasons set forth below, it is
determined that the requested records are not encompassed within the definition of legislative records,
and the denial of the Open Records Officer is affirmed.
legislative agency and grants access to certain records possessed by each of those agencies. “Public
records” are distinguished from “legislative records” under the RTKL and the scope of what constitutes a
legislative record is much narrower than what constitutes a public record. A record in the possession of
a Commonwealth agency or a local agency is presumed to be a public record and must be made
available unless exempted by Section 708, protected by a privilege, or exempt under a Federal or State
law or regulation or judicial order or decree. §§301, 305.
In contrast, the definition of a legislative record under the RTKL is specifically limited to 19 categories of
The RTKL defines a “legislative agency” as one of 15 identified legislative entities, and specifically
identifies the 19 types of records defined as “legislative records.” §102. A legislative record in the
exempt from disclosure under section 708 (b); 2) protected by a privilege; or 3) exempt from disclosure
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Appeal of Noll
resolutions, fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, daily
legislative calendars, and administrative staff manuals or written policies. §102. The 19 categories
explicitly listed in the RTKL do not include any notes, records, or other documentation created by a
legislative member for his/her own use relative to any meeting of a non-legislative agency. Our courts
have consistently applied a fundamental maxim of statutory construction: “expresio unius est exclusio
alterius,” which stands for the principle that the mention of one thing in a statute implies the exclusion
of others not expressed. L.S. ex rel. A.S. v. Eschbach, 583 Pa 47, 56 874 A. 2d 1150, 1156 (2005);
Com. v. Spotz, 552 Pa 499, 519, 716 A.2d 580, 590 (1998) (citing Windrim v. Nationwide Insurance
Co., 537 Pa. 129, 139, 641 A.2d 1154, 1159 (1994) (Cappy, J., concurring); Samilo v. Commonwealth, 98
Pa.Cmwlth. 232, 510 A.2d 412, 413 (1986)). Under this well-established principle, courts must refrain
from expanding statutory provisions through the inclusion of subjects that were omitted. L.S. ex rel.
A.S. v. Eschbach, 583 Pa at 56, 874 A.2d at 1156.
There is no common or approved usage of any of the words included within the 19 categories of
“legislative records” that would support an expansion of that definition to grant access to the records
sought by Requestor.3 In this case, the Open Records Officer correctly determined that the requested
records are not included within the definition of “legislative record.” and Requestor repeatedly admits
he has not requested legislative records. Even if this Appeals Officer were to interpret Requestor’s
various correspondence to be requests for “public records” under the RTKL, such documents are not
“legislative records” and thus not subject to production by this body.
Conclusion
Reizdan Moore
09-29
Appeal of Noll
Notes:
1. Requestor’s letter was dated March 1, 2009, but the letter was postmarked March 6, 2009. It
was received by this Appeals Officer on March 9, 2009. It is unclear whether Requestor’s March
1, 2009 letter to this Appeals Officer constitutes an appeal. Notwithstanding, for purposes of
this decision, that letter will be deemed to have commenced an appeal.
09-30
Appeal of Parsons
No. 2009-0005 PAR
June 29, 2009
Reporter's summary: The requestor filed a request under the Right-to-Know Law seeking access
to House policy or guidelines regarding office space for Representatives, any rent studies or validations
from the last 10 years, and all leases and amounts of rent paid for 42 specified Representatives and one
Senator. The request was referred as it pertained to the Senator. The request was then denied as to the
studies or validations and the policies or guidelines because those items did not exist. Finally the request
was granted for the leases and amounts of rent provided that the reporter pre-pay the estimated $900
fees for copying to redact signatures and Social Security numbers. The requestor appeals both the fee to
be charged and the redaction of the signatures. On appeal, those are held to be invalid grounds of
appeal under the Right-to-Know Law.
Headnotes:
Section 1101 - Appeals officers have the ability to hear appeals based only on a denial or a deemed
denial, not on a granted request.
Case law – Administrative agencies and officers, when created by statute, have only the express and
necessary implied powers that the legislature provides. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383
A.2d 791 (1977). An administrative agency and officer may not expand on those conferred or necessary
implied powers. City of Philadelphia v. Schweiker, 579 Pa. 591, 858 A.2d 75 (2004).
See, also, Appeal of Parsons (House, 2009-0007 PAR).
09-31
Appeal of Parsons
Decision
This is an appeal pursuant to Section 1101(a)(1) of the Right-to-Know Law, (Act of Feb. 14, 2008, No. 3,
P.L. 6) (the "RTKL"), received from Jim Parsons ("Requestor") on May 29, 2009. This is an appeal of a
decision issued by Roger Nick, Open Records Officer, Pennsylvania House of Representatives, Room 129,
Main Capitol, Harrisburg, PA 17120 ("Open Records Officer").
Statement of Facts
There are no factual disputed that arise from the parties' submissions. The facts discerned from the
submissions are as follows:
1. On May 6, 2009, Brooke Lewis, Open Records Administrator for the House of Representatives ("Open
Records Administrator") received Requestor's letter, dated May 4, 2009, which sought access to House
policy or guidelines regarding office space for Representatives, such as square footage per member,
number of offices and maximum rent per year, any market rent study or rent validations prepared for
the Commonwealth within the past ten years to determine allowable rents rates for Representatives
and access to all lease for district office space and the amount paid in rent for each district office. This
information was requested for forty-two listed western Pennsylvania representatives and one state
Senator.
2. On May 7, 2009 the Open Records Officer responded in a letter that granted the request in
part, denied it in part and "referred" it in part. The request was "referred" as it pertained to the Senate
Member by advising the Requestor to direct his request to direct his request pertaining to the Senator
to the Senate Open Records Officer, whose name and address were provided in the letter. The request
was denied as it pertained to the policy and guidelines regarding office space, and any market studies or
rent validations prepared within the past ten years because, as Requestor was advised, the House of
Representatives does not have such records or documents. The request was granted for the financial
information pertaining to rental of the district office spaces for the forty-two House Members, as well as
access to the leases of those Members. Requestor was also advised that the leases contain the
signatures of Members and lessors (and in many cases, the social security numbers of the Members) and
each lease must be copied to redact such information. Requestor was further notified that a copying fee
of $.25 per page would apply, and that the estimated fee would be in excess of $900.00. Requestor was
directed to contact the Open Records Administrator to make arrangement for prepayment of the total
fee and for proceeding.
3. On May 29, 2009 Requestor's appeal letter, dated May 27, 2009 was received by this Appeal
Officer. ("May 29th Letter Appeal").
4. Requestor does not appeal from the part of the request that was "referred" or from the part
that was denied. Neither does Requestor otherwise contend that the House of Representatives does in
fact possess the requested records which it represented it does not have. Rather, Requestor's "appeal"
challenges the part of the request that was granted. In the May 29th Letter Appeal, Requestor expressly
states that he does not dispute that social security numbers should be redacted from the leases. He
contends that the RTKL does not provide for the redaction of signatures on any document, and that he is
"appealing the House's determination that all of the leases must be redacted due to the signatures
appearing on said documents and that [he] must pay a copying charge for those lease." Id.
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Appeal of Parsons
5. On June 1, 2009 this Appeals Officer provided a copy of the May 29th Letter Appeal to the
Open Records Officer and advised him to submit any additional documents supportive of his position by
Noon Monday, June 8, 2009. On June 8, 2009 a memorandum opposing the appeal was received.
6. Also on June 1, 2009 this Appeals Officer acknowledged receipt of the May 29th Letter Appeal,
advised Requestor to submit any additional documents supportive of his position, as well as provide
copies of the May 6, 2009 RTKL request and the May 7th Response by Noon on Monday, June 8, 2009.
Requestor did not submit any additional supportive documents but did provide the requested copies on
June 5, 2009.
Discussion
As a preliminary matter, it must be determined whether this appeal satisfies the requirements of RTKL
Section 1101, Filing of Appeal and whether the RTKL vests this Appeals Officer with jurisdiction over this
matter. Since Requestor is not appealing the "denial" of the release of information, nor is he appealing
the release of any information that has been "deemed denied", this Appeals Officer does not have
jurisdiction over Requestor's complaints.
It is a fundamental tenet of the Pennsylvania jurisprudence that a statutorily created
administrative agency or officer "has only those powers which are expressly conferred upon it by the
Legislature and those powers which arise by necessary implication" to effectuate those powers. Feingold
v. Bell of Pennsylvania, 477 Pa. 1, 8, 383 A.2d 791, 794 (1977). As such, the statutory entity cannot
exercise powers contrary to, in limitation of, or enlargement of those powers the Legislature has
expressly conferred on it. See, e.g., City of Philadelphia v. Schweiker, 579 Pa. 591, 858 A.2d 75 (2004).
The Legislature has expressly conferred on this Appeals Officer the right to decide appeals in
specific cases. Specifically, section 1101(a), in pertinent part, grants authority to a Requestor to file an
appeal under two circumstances: if a written request for access if denied, or "deemed denied" pursuant
to RTKL Section 901. RTKL §§ 901, 1101(a). In this case, the Open Records Officer granted the request in
part, denied the request in part, and referred the request in part. As a threshold matter, the Open
Records Officer issued a written response regarding the request within the statutory five business days
after receipt of the May 6, 2009 request. Accordingly, the May 7th Response cannot be characterized as
a "deemed denial" pursuant to RTKL Section 901.
Equally unavailing to Requestor is an effort to characterize his filing as an appeal of a denial.
Requestor does not contest or appeal the Open Records Officer's statement that no records or policy or
guidelines responsive to the request exist. That was the only aspect of the request that was denied.
Instead, Requestor focuses on a portion of his request that was granted, albeit conditionally, and readily
admits that "he is appealing the House's determination that all of the leases must be redacted due to
signatures appearing on said documents and that [he] must pay a copying charge.1" May 27th Letter
Appeal. Regrettable for Requestor, his filing predicated on his disagreement over costs fails to satisfy the
statutory criteria for an RTKL appeal, and the filing does not confer the requisite jurisdiction on this
Appeals Officer to determine this matter.
09-33
Appeal of Parsons
Notes:
1. It is unclear from the submittals whether Requestor may contend that the $.25 per page copy
fee is authorized or unreasonable. Without adjudicating upon this contention, the Appeals
Officer notes that Requestor may wish to review RTKL Section 1307 (b) (1) and (2) which
mandate that legislative and other agencies establish reasonable duplication fees. Requestor
may also wish to review the fee schedule contained in the House of Representative's RTKL Statement of Policy found at 107 PA Code Ch. 201, §201.15 which sets forth a $.25 per page fee,
as well as a similar Statement of Policy for the Pennsylvania Senate found at 104 PA Code Ch. 7,
§7.15 which sets forth a $.25 per page fee and the fee schedule for the Pennsylvania Office of
Open Records available online at
http://openrecords.state.pa.us/portal/server.pt/community/open_records/4434/fees/481854.
Additionally, Requestor may wish to review recent court decisions in: Weiss v. Williamsport Area
School District, 872 A.2d 269 (2005), in which Commonwealth Court held under the pre-2008
Right to Know Law, 65 P.S. §§66.1-66.9, that a school district fee of $.25 per page for copying
records under the pre-2008 RTKL was reasonable; and Baravordeh v. Borough Council of
Prospect Park, 699 A.2d 789 (1997) in which Commonwealth Court held that a municipal charge
of $.25 per page for copies of requested documents was reasonable.
Finally, Requestor may wish to consider the following. The Commonwealth's recognition of the
need to protect personal identifying information against authorized use is reflected in the
addition of the offense of "Identity theft" to the Crimes Code. 18 Pa.C.S. §4120. That section
defines "identifying information" to include facts used to establish identification including, but
not limited to: a name, social security numbers, and electronic signatures. Id. Complementary
civil provisions further reflecting this protection are reflected in the following sections of the
Judiciary Code, 42 Pa.C.S. §101, et seq.: §5525 (4 year statute of limitation to bring action for
identity theft); §8315 (Authorizes damages for identity theft); §8316 (Establishes a cause of
action for use of name or likeness); and §9720.1 (Specific restitution for identity theft
authorized).
09-34
Appeal of Parsons
No. 2009-0007
July 22, 2009
Reporter's summary: The requestor filed a request under the Right-to-Know Law seeking access
to employment documents for caucus lawyers and outside counsel working for the Democratic Caucus.
The request was granted for the names and salary amounts of all current caucus lawyers, the current
contracts for outside lawyers and the personnel manual for all caucus employees. The request was
denied as to job descriptions, attendance records, hiring dates and employment applications for all
caucus lawyers. Although there was a potential conflict of interest stemming from the appeals officer's
records potentially being involved, this conflict was waived by the requestor and the open-records officer.
The appeals officer determined that the records at issue did not fall within the statutory definition of
legislative record and upheld the partial denial.
Headnotes:
Conflict of interest - If information pertaining to the appeals officer may be released or withheld based
on the decision of the appeals officer, there is a potential conflict of interest. The potential conflict of
interest may be waived verbally or in writing by both parties after the appeals officer has fully disclosed
the potential impact.
Recusal - An appeals officer is able to decide a case even if there is the potential that records involving
the appeals officer may be released. The appeals officer must inform both parties that there is a
potential for a conflict of interest and either obtain a written or verbal waiver of this conflict or
determine if he or she is able to hear the appeal without bias.
Section 1102 – By authorizing the appeals officer to hold a hearing, take evidence and review
information, the Right-to-Know Law implies that appeals officers use a de novo standard of review.
Case law In Commonwealth v. Tedford, it is noted that courts have held that judges may determine their
own competency to hear and decide cases. Commonwealth v. Druce, 577 Pa. 581, 588, 848 A.2d
104, 108 (2004).This decision by the judge will only be overturned for abuse of discretion.
Commonwealth v. Abu-Jamal, 553 Pa. 485, 509, 720 A.2d 79, 89 (1998) citing, Commonwealth v.
Blakeney, 596 Pa. 510, 946 A.2d 645, 659 (2008). The burden to prove a conflict exists is on the
09-35
Appeal of Parsons
party requesting recusal. Commonwealth v. Abu-Jamal, 553 Pa. 485, 509, 720 A.2d 79, 89 (1998)
citing, Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 659 (2008). Commonwealth v.
Tedford, 598 Pa.639, 960 A.2d 1, 55-56 (2008).
If a party provides informed written or verbal consent to waive any potential conflict issue, that
waiver is binding no matter what result. See e.g. Commonwealth v. Corbin, 447 Pa. 463, 291
A.2d 307 (1972); Commonwealth v. Stanton,294 Pa. Super, 516, 521, 440 A.2d 585, 588 (1982).
The fundamental rule of statutory construction is "expresso unius est exclusio alterius," which
means that by including certain items, the legislature intended to exclude others. L.S. ex rel A.S.
v. Eschbach, 583 Pa. 47, 56, 874 A.2d 1150, 1156 (2005); Commonwealth v. Spotz, 552 Pa. 499,
519, 716 A.2d 580, 590 (1998) citing Windrim v. Nationwide Insurance Co., 537 Pa. 129, 139,
641 A.2d 1154, 1159 (1994) (Cappy, J., concurring); Samilo v. Insurance Department., 98
Pa.Cmwlth. 232, 235, 510 A.2d 412, 413 (1986).
See, also, Appeal of Parsons (House, 2009-0005 PAR).
09-36
Appeal of Parsons
Procedural History
P. L. 6) (the "RTKL"), received from Jim Parsons, Reporter WTAE-TV, Pittsburgh, PA ("Requestor") on
June 25, 2009', of a partial denial issued by Roger Nick, Open Records Officer, Pennsylvania House of
Representatives, Room 129, Main Capitol, Harrisburg, PA 17120 ("Open Records Officer").
On May 5, 2009, Requestor sought access to various employment related documents pertaining to
caucus lawyers and outside counsel working for the Democratic Caucus, Pennsylvania House of
Representatives. On June 11, 2009, the Open Records Officer issued a letter, granting in part and
denying in part, Requestor's access to the requested documents. The June 11, 2009 partial denial
identified the record(s) requested, the specific reasons for the denial including citations to supporting
legal authority, identified the open-records officer who issued1 the denial, listed the date of the
response, and identified the procedure to appeal the denial including the person to whom such appeal
should be directed. ("Partial Denial"). The Partial Denial met the requirements of Section 903 of the
RTKL. Requestor appealed certain aspects of the Partial Denial, timely filing it within the 15 business
days mandated by Section 1101 of the RTKL, and addressing the grounds stated in the Denial.
Statement of Facts
There are no factual disputes that arise from the parties' submissions. The facts discerned from the
1. On May 5, 2009 Requestor submitted a letter to Brooke I. Lewis, the Open Records Administrator,
Pennsylvania House of Representatives, requesting:
a. Names of all current caucus lawyers on the state payroll, hire dates, and salary amounts;
b. Current contracts the caucus has with outside legal counsel and all bills of outside counsel for 2008
and 2009 to the date the request is fulfilled;
c. Job descriptions for all individuals employed as lawyers/solicitors for the caucus;
d. Time and attendance records for all caucus lawyers;
e. Personnel manual of current caucus employees, including lawyers/solicitors.
f. Employment applications for all individuals employed as lawyers/solicitors for the caucus.
2. In a letter dated May 12, 2009, the Open Records Officer informed Requestor that his request
entailed legal review and would require an extension of the response time.
3. In a letter dated June 11, 2009, the Open Records Officer, denied the request in part, and granted it in
part. The Open Records Officer granted access to the records sought in (a), (b) and (e) of paragraph 1
above, excluding the dates of hire of the caucus lawyers. The Open Records Officer issued the Partial
Denial, denying access to the remaining records asserting that such information did not constitute
legislative records pursuant to Section 102 of the RTKL.
4. On June 25, 2009, this Appeals Officer received a letter, dated June 22, 2009, appealing the Open
Records Officer's Partial Denial and setting forth the basis for Requestor's position that the denial was in
error. ("June 22nd Letter Appeal").
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Appeal of Parsons
5. Pursuant to Section 1102 (a)(1) of the RTKL, by letter dated June 30, 2009, both parties were afforded
an opportunity to submit any additional documents by Noon on July 6, 2009 to this Appeals Officer that
they wished to have considered; upon request of the parties, the deadline was extended until Noon, on
July 9, 2009. On July 9, 2009 a Memorandum Opposing the appeal was filed on behalf of the Open
Records Officer. ("Memorandum in Opposition"). No further filing was made on behalf of the Requestor.
6. On July 7, 2009, the Appeals Officer identified a possible issue of concern and notified the parties of a
conference call that he scheduled for 10:00 am on July 10, 2009 to give them an opportunity to present
any requests for recusal that the parties wished to make. In lieu of the conference, the parties were
informed they could submit a written waiver prior to the time of the conference. On July 8, 2009 a
waiver was submitted by the Open Records Officer. During the July 10, 2009 conference with Clancy
Myer, Esquire, on behalf of the Open Records Officer and Requestor, Requestor twice stated that he had
no concerns or objection to this Appeals Officer determining the matter. Accordingly, the conference
call was ended and this appeal proceeded.
Discussion
A. Request for Recusal
As a threshold matter, this Appeals Officer considered whether disqualification was appropriate in this
proceeding based upon the possible inclusion of this Appeals Officer among the attorneys about whom
the requested information was sought. Pennsylvania courts have articulated the following standards for
judicial officers, which although not directly on point, offer guidance in the case at hand:
It is presumed that a judge has the ability to determine whether he will be able to rule impartially and
without prejudice, and his assessment is personal, unreviewable, and final. Commonwealth v. Druce,
577 Pa. 581, 848 A.2d 104, 108 (2004). "Where a jurist rules that he or she can hear and dispose of a
case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of
discretion." Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998). (Citing, Commonwealth
v. Blakeney, 596 Pa. 510, 946 A.2d 645, 659 (2008).
Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 55-56 (2008).
Additionally, "[i]t is the burden of the party requesting recusal to produce evidence establishing bias,
prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially."
Commonwealth v. White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting Commonwealth v. Abu-Jamal,
553 Pa. 485, 720 A.2d 79, 89 (1998).
Commonwealth v. Tedford, Id.
The parties were advised of the possible inclusion of this Appeals Officer among the attorneys about
whom the requested information was sought, and on July 7, 2009 were notified of the scheduling of a
conference call for Friday, July 10, 2009 to hear any request that the parties may wish to make that the
Appeals Officer recuse himself from consideration of this appeal. By letter dated July 8, 2009, the Open
Records Officer waived such request for recusal. Requestor did not transmit a written waiver, but during
the conference call with Requestor and Counsel for the Open Records Officer, Clancy Myer, Esquire,
Requestor twice stated that he had no objection or concerns, and he agreed that this Appeal Officer
could proceed to determine the appeal. Even though this Appeals Officer does not believe he has any
bias or prejudice that would interfere with, or prevent him from rendering, a fair and impartial
determination in this matter, the parties were afforded the opportunity to present such a request or
objection. Subsequently, both parties either verbally or in writing affirmatively waived any objection or
09-38
Appeal of Parsons
request for recusal. See e.g. Com. v. Corbin, 291 A.2d 3078 (Pa. Comwlth. Ct. 1972) (noting that where
consent to proceed before a judge was deliberate and voluntary, defendant could not later complain
that judge should have recused himself); Com. v. Stanton, 440 A.2d 585, 588 (Pa.Super., 1982)("A
defendant may for any reason he chooses, waive his right to have a judge, disqualified, and if he does,
he cannot be heard to complain following an unfavorable result.")
B. Standard of Review
The RTKL does not expressly provide a standard of review regarding appeals. Supporting de novo review,
or a broad standard of review, Section 1101 (a)(1) mandates that the appeals officer "set a schedule for
the [parties] to submit documents in support of their positions. " Id. (emphasis added). The RTKL does
not restrict the documents that can be submitted nor does it proscribe the appeals officer's authority to
directing the appeals offices "review all information filed relating to the request." § 1102 (a)(2)
(emphasis added)). Additionally, among other things, the appeals officer is authorized by the RTKL to
hold a hearing and admit testimony, documents and other evidence which the appeals officer believe be
reasonably probative and relevant to an issue in dispute. Id. (Emphasis added).
Accordingly, a de novo or broad standard of review will be used in reviewing appeals if led under the
RTKL2.
C. Legislative Records
The RTKL separately defines Commonwealth agency, Judicial agency, Local agency, and Legislative
agency and grants access to certain records possessed by each of those agencies. In the case of
legislative records, the RTKL defines a "legislative agency" as one of 15 identified legislative entities, and
specifically identifies the 19 types of records defined as "legislative records." RTKL § 102, Definitions. A
record that falls within that definition is presumed to be available for public access unless, it is: 1)
exempt under section 708; 2) protected by a privilege; or 3) exempt from disclosure under any other
Federal or State law, regulation, judicial order or decree. RTKL §305, Presumptions. A legislative agency
claiming that a record is exempt bears the burden of proving exemption by a preponderance of
evidence. RTKL §708 (a)(2). Section 708 (b) lists 30 types of public records that are exempt from
disclosure. RTKL §708 (b). If a record falls within the definition of a "legislative record" and is not exempt
or privileged from disclosure, it must be disclosed. RTKL §303, Legislative agencies.
Under the framework set forth in the RTKL regarding the General Assembly, determinations are first
made whether a request was made for a "legislative record" that is possessed by a "legislative agency."
If the determinations are made in the affirmative, then the burden falls on the legislative agency to
disclose, or justify an exemption or privilege from disclosure.
In the instant appeal, Requestor sought access from a legislative agency to six categories of employment
records pertaining to lawyers on the state payroll, as well as outside counsel with whom the caucus has
contracted. The Open Records Officer granted access to documents in three categories of the requests,
namely:
1.
The names of all current caucus lawyers on the state payroll, and salary amounts;
2.
Current contracts the caucus has with outside legal counsel and all bills of outside counsel
for 2008 and 2009 to the date the request is fulfilled, and
3. Personnel manual of caucus employees, including lawyers/solicitors for the caucus.
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Appeal of Parsons
The Partial Denial later clarifies that access to the records sought in category (1) above was only
granted in part, as the Partial Denial states that "the portion of the request for hire date
information of current lawyers contained in number (1) is denied." (Italics added.) Id. Access to
the documents requested in the remaining three categories was also denied, including:
4. Job descriptions for all individuals employed as lawyers/solicitors for the caucus;
5. Time and attendance records for all caucus lawyers; and
6. Employment applications for all individuals employed as lawyers/ solicitors for the caucus.
The June 22nd Letter Appeal expressly limits the appeal to the partial denial of documents regarding: job
descriptions for all individuals employed as lawyers/ solicitors for the caucus; time and attendance
records for all caucus lawyers; and dates of hire for caucus employees 3. Id.
In his July 9, 2009 Memorandum in Opposition, the Open Records Officer concedes access to the dates
of hire for caucus attorneys, stating "[h]owever, because date of hire information is routinely made
public, I will grant the request to access to date of hire information for current Democratic Caucus
attorneys." Memorandum in Opposition at 7. Therefore, since access in this regard, will be provided, the
portion of this appeal pertaining to the dates of hire for these individuals is deemed moot.
Furthermore, Requestor has not appealed, or otherwise challenged, the denial regarding his request for
employment application documents. Accordingly, the only issues currently unresolved in this appeal are
Requestor's request for; (1) the time and attendance records for all caucus lawyers, and (2) job
descriptions for all individuals employed as lawyers/solicitors for the caucus, both of which are
addressed below.
Requests for Time And Attendance Records For All Caucus Lawyers and Job Descriptions For All
Individuals Employed As Lawyers/Solicitors For The Caucus
First, with regard to Requestor's request for time and attendance records, Requestor substantially based
his appeal on the Commonwealth Court's holding in Kanzelmeyer v. Eger, 16 Pa Cmwlth. 495, 329 A. 2d
307 (1974). In that case, a taxpayer sought to examine the payroll vouchers and attendance records of
certain school district employees under the Right-to Know-Law, Act of June 21, 1957, P.L. 3904.
Commonwealth Court determined that the requested records were "public records" finding that:
The [attendance] cards are plainly the kind of record intended to be made available to public
examination by the `Right to Know Law' and that considerations of privacy and confidentiality, as
distinguished from regard for reputation and personal security, must yield to the public's right to know
about and examine into its servants' performance of duty.
16 Pa Cmwlth at 502, 329 A. 2d at 311. The court affirmed the taxpayer's access to the payroll registers,
rather than the payroll vouchers, and ordered the attendance records disclosed. Id. Requestor argues
that this holding established that time and attendance records are public records to which he should be
granted access. June 22nd Letter Appeal. Citing the definition of a "financial record," among other things,
as "any account, voucher or contract dealing with an agency's receipt or disbursement of funds, or
acquisition of services," Requestor argues that both attendance records and the hire date records are
encompassed therein and should be released. Id. Requestor's arguments fall short of the mark and must
be rejected. They ignore the quintessential distinction of the 2008 RTKL that legislative agencies are
required to provide access to "legislative records" not to "public records."
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Appeal of Parsons
In Kanzelmeyer- v. Eger, supra, Commonwealth Court construed the definition of "public record" in the
Act of June 21, 1957, P.L. 390 (the predecessor to the 2008 Right-to-Know-Law), and considered
whether that term encompassed the requested records held by a local agency. The determinations
made by Commonwealth Court in that case were inapplicable to the General Assembly. The definition of
"agency" did not include the legislative branch which has been held to be exempt from that statute.
Uniontown Herald Standard v. Roberts, 576 Pa. 231, 239, 839 A.2d 185,190 (2003) (citing, Consumers
Education and Protective Assn v. Nolan, 470 Pa. 372, 368 A.2d 675, 680-81 (1977) Aff'm Pa, 589 Pa. 412,
909 A.2d 804.)
Additionally, in Kanzelmeyer v. Eger, Commonwealth Court determined whether the requested
attendance and payroll records fell within the purview of the definition of "public records". Requestor's
reliance on the Kanzelmeyer decision is misplaced. The question whether the requested records were
accessible as "legislative records" never arose in that case under the Act of June 21, 1957, the
predecessor Right-to-Know-Law.
To the contrary, the General Assembly is now expressly covered by the Right-to-Know Law, Act 2008-No.
3 and section 102 of that statute lists 19 specific categories of records that fall within the definition of
"legislative record." RTKL §102. Definitions. Included in that definition are items such as: financial
records, introduced bills and resolutions, fiscal notes, rules of a chamber, cosponsorship memorandum,
records of votes, daily legislative calendars, and administrative staff manuals or written policies. Id. The
19 categories explicitly listed in the RTKL do not include: time and attendance records, or employee job
descriptions. Pennsylvania courts have consistently applied a fundamental maxim of statutory
construction: "expresio unius est exclusio alterius," which stands for the principle that the mention of
one thing in a statute implies the exclusion of others not expressed. L.S. ex rel. A.S. v. Eschbach, 583 Pa
47, 56 874 A. 2d 1150, 1156 (2005); Com. v. Spotz, 552 Pa 499, 519, 716 A.2d 580, 590 (1998) (citing
Windrim v. Nationwide Insurance Co., 537 Pa. 129, 139, 641 A.2d 1154, 1159 (1994) (Cappy, J.,
concurring); Samilo v. Commonwealth, 98 Pa.Cmwlth. 232, 510 A.2d 412, 413 (1986)). Under this wellestablished principle, courts must refrain from expanding statutory provisions through the inclusion of
subjects that were omitted. L.S. ex rel. A.S. v. Eschbach, 583 Pa at 56, 874 A.2d at 1156.
With regard to the request for various job descriptions, in his June 22nd Letter Appeal, Requestor argues
that "to the extent that job descriptions are contained in any administrative staff manual, those records
would be required to be released." Id. Requestor does not cite any statutory authority in support of that
assertion. The Opens Records Officer argues that the definition of "legislative records" in RTKL section
102 does not expressly include job descriptions, and consequently the House is not required to provide
access to those documents. Memorandum in Opposition at 5. As noted above, this position correctly
interprets the provisions of the statute since such information is similarly not a "legislative record"
under the statute.
In sum, there is no common or approved usage of any of the words included within the 19 categories of
"legislative records" that would support an expansion of that definition to grant access to the records
records are not included within the definition of "legislative records."
Conclusion
The General Assembly expressly listed the types of documents which are publicly accessible and
available as legislative records under the RTKL. The documents requested herein, and which are
specifically at issue in this appeal, do not fall within the purview of that statute and need not be
disclosed.
09-41
Appeal of Parsons
Notes:
1. The appeal letter was dated June 22, 2009, mailed June 23, 2009 and received by this Appeals
Officer on June 25, 2009.
of the Department of Labor personnel. The referee's scope of review is limited by statute to
consideration of the issues expressly ruled upon in the decision being appealed. 34 Pa. Code §
101.87. Appeals of the referee's decision are made to the Board of Unemployment
weight to be accorded evidence. The Board can affirm, modify, or reverse the referee's decision
3. The context of the original request indicates that this aspect of the appeal is limited to caucus
"lawyers" rather than to all caucus employees.
4. Repealed by section 3102 (I)(ii) of Act 2008 No. 3.
construed according to their common and approved usage. 1Pa.C.S. § 1903(a). When the words
pretext of pursuing its spirit. 1Pa.C.S. § 1921(b)
09-42
Appeal of Lowell
Appeal No. 2009-0008
August 26, 2009
Reporter's summary: A requestor sought access to all documents involving four traffic flow or
road construction issue communications between a given list of 20 individuals and organizations and
Representatives Stan Saylor and Ronald Miller. The request was denied and the requestor sent an
imperfect appeal to the appeals officer. The appeals officer attempted to contact the requestor to allow
the requestor to perfect his appeal, but there was no response. The appeals officer then attempted to
use the imperfect appeal as a basis to review the decision by the open-records officer. The appeals officer
upheld the denial.
Headnotes:
Section 502 - There is no merit to a requestor's complaint that the open-records officer, and not the
individual legislator that the information was originally requested from, is answering the request. The
Right-to-Know law allows for an open-records officer to be designated.
Section 1101 (a) - An imperfect request may still be considered by the appeals officer.
Section 1102 - By authorizing the appeals officer to hold a hearing, take evidence and review all
review.
Case law The fundamental rule of statutory construction is "expresso unius est exclusio alterius," which
means that by including certain items, the legislature intended to exclude others. L.S. ex rel A.S.
v. Eschbach, 583 Pa. 47, 56, 874 A.2d 1150, 1156 (2005); Commonwealth v. Spotz, 552 Pa. 499,
519, 716 A.2d 580, 590 (1998) citing Windrim v. Nationwide Insurance Co., 537 Pa. 129, 139,
09-43
Appeal of Lowell
641 A.2d 1154, 1159 (1994) (Cappy, J., concurring); Samilo v. Ins. Dep't., 98 Pa.Cmwlth. 232, 235,
510 A.2d 412, 413 (1986).
The Speech and Debate Privilege of the Constitution of Pennsylvania mirrors the Federal Speech
and Debate Clause and both are intended to protect activities by the legislators that are within
the "sphere of legislative activity." See, e.g., Eastland v. United States Servicemen's Fund, 421
U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Bogan v. Scott-Harris, 523 U.S. 44, 48-49
(1998); Rusack v. Harsha, 470 F.Supp. 285, 296 (M.D. Pa. 1978); Corporacion Insular de Seguros
v. Garcia, 709 F.Supp. 288 (D.P.R. 1988), appeal dismissed, 876 F.2d 254 (1st Cir. 1989).
09-44
Appeal of Lowell
P. L. 6) (the "RTKL"), received from Steven Lowell ("Requestor") on July 29, 20091. This is an appeal of a
denial issued by John Zimmerman, Esquire, Open Records Officer for the Republican Caucus,
Pennsylvania House of Representatives, Room B-6, Main Capitol, Harrisburg, PA 17120 ("Open Records
Officer").
On July 15, 2009, Requestor mailed RTKL request forms seeking various traffic-related records pertaining
to communications between: 1) Rep. Stan Saylor and twenty (20) individuals or organizations, and 2)
Rep. Ronald Miller and the same twenty (20) individuals or organizations. On July 24, 2009, the Open
Records Officer issued a letter denying Requestor's access to the requested documents pertaining to
Rep. Miller. ("Denial"). The Denial met the requirements of Section 903 of the RTKL. Notwithstanding
attempts to have Requestor provide additional information crucial to his appeal, to which there has
been no response, Requestor's letter to this Appeals Officer will be deemed to have commenced the
appeal.
Statement of Facts
There are no factual disputes that arise from the parties' submissions. The facts discerned from the
1. On July 15, 2009 Requestor mailed separate "Standard RTKL Request Forms2" to Rep. Ronald Miller
and to Rep. Stan Saylor seeking access to "each and every document, including letters, memorandum,
faxes, e-mails, phone message logs, reflecting communications sent to [you] by any of the individuals or
organizations on List A or communications sent by [you] to any of the individuals or organizations on List
A, relating to the following issues:
a. The reconstruction/ upgrading of PA Routes 24/124.
b. The relocation or elimination of the traffic light at Chambers Road and Mt. Rose Ave.
c. The installation of a traffic light at Plymouth Road and Mt. Rose Ave.
d. Any plans for the taking of any properties to facilitate the PA Route 24/124 construction/ upgrading
plan. (Italics added.)
Twenty individuals or organizations were contained in the referenced "List A."
2.The Open Records Officer for the House Republican Caucus, by letter dated July 24, 2009, indicated
that the July 17, 2009 RTKL request "to the House Republican Caucus" had been received. The Open
Records Officer further referenced the request pertaining to Rep. Miller's communications3 and stated
that the request was "denied by the House Republican Caucus because the requested records are not
legislative records as defined by § 102." The letter then informed Requestor of the process for filing an
appeal. ("Denial").
4. On July 29, 2009, this Appeals Officer received a letter, dated July 25, 2009, from Requestor seeking
"assistance in obtaining all the information to which [he] is legally entitled." Requestor relies on the
09-45
Appeal of Lowell
definition of "legislative agency" in RTKL § 102, and the mandate of RTKL §303 that a legislative agency
shall provide legislative records irrespective of the intended use of the record by requestor as support
for the appeal. Requestor then questions why the Open Records Officer, Mr. Zimmerman, "to whom
[he] did not forward his requests," answered on behalf of Mr. Saylor and Mr. Miller. ("July 25th Letter
Appeal").
5. On July 29, 2009, a Certified letter (with a Request for a Return Receipt) was sent to Requestor from
this Appeals Officer acknowledging his July 25th letter, and deeming it to be an appeal from the denial
of his request for communications between Rep. Ronald Miller and the 20 individuals or organizations."
Requestor was advised that certain information that is required to be stated in an appeal was omitted
from the July 25th Letter Appeal. A copy of the RTKL was enclosed for Requestor's review, and he was
directed to note the requirements for filing an appeal that are contained in RTKL § 1101(a). Requestor
was directed to submit the requested information to this Appeal Officer by Noon on August 3, 2009 or
his appeal would be discontinued and the file closed. Requestor was also advised that he may submit
any additional documents in support of his position that he wished to have considered, and that such
documents must be submitted by Noon on August 3, 2009.
6. Additionally, on July 29, 2009 a letter was sent to the Open Records Officer informing him of the July
25th Letter Appeal, and advising him that he may submit any additional documents in support of his
position that he wished to have considered. Such documents must be submitted by Noon on August 3,
2009. On August 3, 2009, the Open Records Officer submitted a 2-page Memorandum opposing the
appeal. ("Memorandum in Opposition").
7. A U.S. Postal Service tracking search indicated that an attempt to deliver the certified letter on July
31, 2009 was unsuccessful and a notice left at Requestor's address. The Return Receipt indicated this
Appeals Officer's letter was received by Requestor on Saturday, August 8, 2009. As on August 25, 2009,
no additional documents have been received from Requestor.
8. Neither a hearing, nor the submission of additional documents, was deemed necessary to resolve any
issues inherent in this appeal.
Discussion
Two preliminary matters merit discussion prior to consideration of the issues inherent in this appeal.
First, Requester failed to perfect his appeal. In the instant matter, the Denial is a written response which
refers to the records requested and states that the request is denied "since the requested records are
not legislative records as defined by § 102." ("Denial"). The Denial succinctly summarizes the grounds for
denying the request, but nonetheless complies with the requirements for an agency's denial under the
RTKL. §903.
Section 1101 (a)(1) of the RTKL authorizes the filing of appeals, and mandates:
The appeal shall state the grounds upon which the requestor asserts that the record is a public record,
legislative record, or financial record and shall address any grounds stated by the agency or delaying or
denying the request.
09-46
Appeal of Lowell
§1101(a)(1).
Rather than asserting a basis for granting his access to the requested records or addressing the grounds
for the denial, Requestor merely referred to the mandated disclosure of legislative records by legislative
agencies, and then questioned why his requests to the state legislators were "answered on [their] behalf
by [the Open Records Officer]." ("July 25th Letter Appeal").
These statements fall short of the mandated contents of an appeal under the RTKL. To assist him with
the proper preparation of his appeal, Requestor was furnished with a copy of the RTKL and directed to
submit the requisite information in accordance with the appeal requirements specified in Section 1101
(a). Requestor was also advised that a failure to submit the requisite information would result in
dismissal of his appeal. ("July 29th Certified Letter").
Despite these instructions, no further documents or information were submitted by Requestor as of the
date of this decision. Notwithstanding this failure, this Decision is being issued, based upon the
information in Requestor's July 25th Letter Appeal and his request for assistance "in obtaining the
information to which he is legally entitled."Id. (Italics added).
Secondly, section 502 of the RTKL mandates that an agency designate an open-records officer who "shall
receive requests submitted to the agency under this act, direct requests to appropriate persons, and
issue interim and final responses under the act." §502 (b)(1). The RTKL expresses authorizes a political
party caucus of a legislative agency to appoint an open-records officer under this section to fulfill these
functions. §502 (a)(2). The House Republic Caucus designated Mr. Zimmerman as its Open Records
Officer to fulfill the duties, and the instant Denial was issued by him in accordance with the RTKL.
Requestor's complaint about the author of the response that he received is without merit.
Standard of Review
The RTKL does not expressly provide a standard of review regarding appeals. Supporting de novo review,
or a broad standard of review, Section 1101 (a)(1) mandates that the Appeals Officer "set a schedule for
the [parties] to submit documents in support of their positions. " Id. (emphasis added). The RTKL does
not restrict the documents that can be submitted nor does it proscribe the appeals officer's authority to
directing the Appeals Officer to "review all information filed relating to the request." § 1102 (a)(2)
(emphasis added). Additionally, among other things, the appeals officer is authorized by the RTKL to
hold a hearing and admit testimony, documents and other evidence which the appeals officer believes
to be reasonably probative and relevant to an issue in dispute. Id. (emphasis added).
Accordingly, a de novo or broad standard of review will be used in reviewing appeals filed under the
RTKL.4
A. Legislative Records
Requestor made a broad, litigation-style discovery request seeking access to "each and every document,
including letters, memoranda, faxes, c-mails, phone message logs, reflecting communications" sent
09-47
Appeal of Lowell
from, or received by, Rep. Ronald Miller5 with any of twenty (20) named individuals or organizations.
The Open Records Officer denied the request stating that the records are not legislative records that
must be disclosed. For the reasons set forth below, it is determined that the requested records do not
fall within the definition of legislative records, and the denial by the Open Records Officer is affirmed.
The RTKL separately defines Commonwealth agency, judicial agency, local agency, and legislative agency
and grants access to certain records possessed by each of those agencies. "Public records" are
distinguished from "legislative records" under the RTKL and the scope of what constitutes a legislative
record is much narrower than what constitutes a public record. A record in the possession of a
Commonwealth agency or a local agency is presumed to be a public record and must be made available
unless exempted by Section 708, protected by a privilege, or exempt under a Federal or State law or
regulation or judicial order or decree. §§301, 305. In contrast, the definition of a legislative record under
the RTKL is specifically limited to 19 categories of records. There is no equivalent or even similar
limitation on the categories of documents that are classified as public records.
The RTKL defines a "legislative agency" as one of 15 identified legislative entities, and specifically
identifies the 19 types of records defined as "legislative records." § 102. A legislative record in the
exempt from disclosure under section 708(b)(2) protected by a privilege; or 3) exempt from disclosure
a "legislative record" and is not exempt or privileged from disclosure, it must be disclosed. §§303, 305.
In sum, under the framework set forth in the RTKL regarding the General Assembly, determinations are
first made whether a record request was made for a "legislative record" that is possessed by a
"legislative agency." If the determinations are made in the affirmative, then the burden falls on the
legislative agency to disclose, or prove by a preponderance of the evidence, that an exemption or
privilege preventing disclosure applies.
Section 102 of the RTKL lists 19 specific categories of records that fall within the definition of "legislative
record." Included in that definition are items such as: financial records, introduced bills and resolutions,
fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, daily legislative
calendars, and administrative staff manuals or written policies. § 102. The 19 explicitly listed categories
do not include any letters, memoranda, faxes, or phone message logs reflecting communications
between state legislators and others. Our courts have consistently applied a fundamental maxim of
statutory construction: "expresio unius est exclusio alterius, " which stands for the principle that the
mention of one thing in a statute implies the exclusion of others not expressed. L.S. ex rel. A.S. v.
Eschbach, 583 Pa 47, 56 874 A. 2d 1150, 1156 (2005); Com. v. Spotz, 552 Pa 499, 519, 716 A.2d 580, 590
(1998) (citing Windrim v. Nationwide Insurance Co., 537 Pa. 129, 139, 641 A.2d 1154, 1159 (1994)
(Cappy, J., concurring); Samilo v. Commonwealth, 98 Pa.Cmwlth. 232, 510 A.2d 412, 413 (1986). Under
this well-established principle, courts must refrain from expanding statutory provisions through the
inclusion of subjects that were omitted. L.S. ex rel. A.S. v. Eschbach, 583 Pa at 56, 874 A.2d at 1156.
09-48
Appeal of Lowell
There is no common or approved usage of any of the words included within the 19 categories of
"legislative records" that would support an expansion of that definition to grant access to the records
records are not included within the definition of "legislative records" and need not be disclosed.
B. Protected by Privilege
Even assuming arguendo that the requested records are "legislative records," Requestor still is not
entitled to the access that he seeks. Legislative records that are protected by a privilege are exempt
from disclosure under the RTKL. §305(b). Article II, section 15 of the Pennsylvania Constitution
encompasses the Speech or Debate Privilege. The contours of the protection afforded state legislators,
legislative staff, and the General Assembly itself by the Pennsylvania Speech or Debate Privilege are
identical to those of the federal Speech or Debate Clause. See, e.g., Consumers Ed. and Protective Ass'n,
368 A.2d 675, 680-81 (Pa. 1977). That privilege, like its counterpart in the U.S. Constitution relative to
federal legislators, protects certain legislative activities of state legislators that fall with the "sphere of
legislative activity" from public disclosure. See, e.g., Eastland v. United States Servicemen's Fund, 421
U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Bogan v. Scott Harris, 523 U.S. 44, 48-49 (1998);
Rusack V. Harsha, 470 F.Supp. 285, 296 (M.D. Pa. 1978); Corporacion Insular de Jeguros v. Garcia, 709
F.Supp. 288 (D.P.R. 1988), appeal dismissed, 876 F.2d 254 (1S` Cir. 1989); Consumers Ed. and Protective
Ass 'n v. Nolan, supra.
09-49
Appeal of Lowell
Notes:
1. The appeal letter was dated July 25, 2009, but the letter was not postmarked until July 28, 2009.
It was received by this Appeals Officer on July 29, 2009.
2. These forms were provided by the Pennsylvania Office of Open Records, rather than the RTKL
request forms used by the House of Representatives.
3. Although requests were mailed to both Rep. Ronald Miller and Rep Stan Saylor, and Requestor
mentions both legislators in his Appeal Letter, Requestor did not provide the denial regarding
Rep. Saylor's communications, and provided only the denial regarding Rep. Miller's
communications.
5. Requestor made a similar request for the same information reflecting communications with
Rep. Stan Saylor, but Requestor did not furnish a copy of a denial letter regarding Rep. Saylor.
Accordingly, this decision pertains only to Rep. Miller.
construed according to their common and approved usage. 1 Pa.C.S. § 1903 (a). When the
words of a statute are free and clear from ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit. 1 Pa.C.S. §1921 (b).
09-50
Appeal of Nicholas
No. 05-2009
November 9, 2009
Reporter's summary: Requestor's request for a number of Commonwealth laws was denied as
Commonwealth laws are not one of the 19 delineated records available for public access. The denial was
upheld on appeal.
Headnotes:
Legislative intent – The best way to determine legislative intent is to look at the unambiguous
language of the statute.
Section 102 Under the Right-to-Know law, the Senate is a legislative agency and is required to provide public
access to records deemed to be legislative or financial records.
The laws of the Commonwealth are not considered legislative records. However the requestor is
free to request the same records from a Commonwealth Agency, where the records may be
accessible as public records.
09-51
Appeal of Nicholas
Senate
By letter dated October 5, 2009, Mr. Edward J. Nicholas (Appellant) sought access to copies of what
appear to be various laws of this Commonwealth1. By letter dated October 6, 2009, the Senate's Open
Records Officer, W. Russell Faber, denied the request stating that the requested records were not
legislative records. The denial was appealed to this office by letter dated October 17, 2009 pursuant to
the recently enacted Right-to-Know Law, Act of February 14, 2008, P.L. 6, P.S. §67.101 et seq. (the Act).
Discussion
The Act provides different types of access to different types of records of Commonwealth agencies, local
agencies, legislative agencies and judicial agencies. This appeal deals solely with access provided by a
legislative agency to legislative records.
No body of jurisprudence interpreting this Act has been developed. However, in construing any statute,
it is a basic premise of law that the intention of the General Assembly must be ascertained and given
effect. Craley v. State Farm Fire and Casualty Co., 586 Pa. 484, 895 A.2d 530 (2006). The legislative intent
is best gleaned from the clear and plain language of the statute. Browser v. Blom, 569 Pa. 609, 807 A.2d
830 (2002). And, "… when the words of a statute are clear and free from all ambiguity, they are
presumed to be the best indication of legislative intent." Walker v. Eleby, 577 Pa. 104 at 123, 842 A.2d
389 at 400 (2004). This case can be resolved by applying these legal principles to the existing factual
situation.
Section 102 of the Act defines the Senate as a "legislative agency". Section 303(a) of the Act states that,
"A legislative agency shall provide legislative records in accordance with this act." The Act is clear and
unambiguous. If the copies of the various law of this Commonwealth are legislative records, then the
Appellant should be granted access to such records.
Section 102 of the Act defines the term "legislative record" in a very specific and exhaustive manner.
There are nineteen different types of legislative documents listed which would be accessible by the
public as legislative records pursuant to the Act2.
Nowhere in this list of accessible legislative records is found the mention of the laws of this
Commonwealth. It would seem clear and unambiguous that it was not the intention of the General
Assembly to make such a general class of records into accessible legislative records under these
provisions of the Act.
Appellant has offered no reason whatsoever why the denial of the Open Records Officer was in error.
Rather, the instrument of appeal simply states as a legal conclusion that the "…records are in fact public
records, and are a financial record."
Insofar as public records are concerned, this office has no jurisdiction to decide what is or what is not a
public record. Section 102 of the Act defines a public records as, "A record, including a financial record,
of a Commonwealth or local agency…" The Senate is a legislative agency and not a Commonwealth or
local agency. As such, the Senate is required by the Act to provide access to legislative records not public
records.
09-52
Appeal of Nicholas
Senate
Falling within the definition of an accessible legislative records is a financial record defined in section
102 of the act as:
"I. Any account, voucher or contract dealing with:
(i)
the receipt of disbursement of funds by an agency; or
(ii)
an agency's acquisition, use or disposal of services, supplies, materials, equipment or
property…"
As duly noted by the Open Records Officer, Appellant has not requested access to any information or
records about financial transactions of the Senate. Appellant has not cited any authority or reasoning for
the stated conclusion that copies of the laws he seeks are financial records of the Senate. I know of no
such authority and conclude that the records sought by the Appellant are not accessible financial
records.
Finally, it must be noted that in his denial, the Open Records Officer also took the opportunity to advise
Appellant that even though the records he sought were not accessible legislative documents, they may
well be accessible public records. Appellant was advised to seek his records by making a request with
another open records officer. Instead, Appellant elected to pursue this route of appealing the denial. I
repeat the sage counsel already offered Appellant. He may well find that these are accessible public
records in another forum.
09-53
Appeal of Nicholas
Senate
Notes:
1. Appellant's note specifically requests:
"(1) 10.57 Sovereign Immunity Act
*Categories of Damages Allowable
# Tort Claims 42 Pa.C.S.A. 8528©
(2) 42 Pa.C.S.A. 8553
Local governments defendant(s)
$500,000 per claim
See Malen & Smith, Legal Malpractice
(Westlaw Practice Bk 3)
(3) (A) Title 13 PaC.S.A. 3-505
(3)(B) Title 13 PaC.S.A. 1-202
(4) Requestor requests for a copy of;
(A) the Privacy Act of 1974,
(B) Act 3 2008 R. T. K. Legislation"
2. “Legislative record." Any of the following relating to a legislative agency or a standing
committee, subcommittee or conference committee of a legislative agency:
(1) A financial record.
(2) A bill or resolution that has been introduced and amendments offered thereto in committee
or in legislative session, including resolutions to adopt or amend the rules of a chamber.
(3) Fiscal notes.
(4) A cosponsorship memorandum.
(5) The journal of a chamber.
(6) The minutes of, record of attendance of members at a public hearing or a public committee
meeting and all recorded votes taken in a public committee meeting.
(7) The transcript of a public hearing when available.
(8) Executive nomination calendars.
09-54
Appeal of Nicholas
Senate
(9) The rules of the chamber.
(10) A record of all recorded votes taken in legislative session.
(11) Any administrative staff manuals or written policies.
(12) An audit report prepared pursuant to the act of June 30, 1970 (P.L. 442, No. 151) entitled,
"An act implementing the provisions of Article VIII, section 10 of the Constitution of
Pennsylvania, by designating the Commonwealth officers who shall be charged with the
function of auditing the financial transactions after the occurrence thereof of the Legislative
and Judicial branches of the government of the Commonwealth, establishing a Legislative
Audit Advisory Commission, and imposing certain powers and duties on such commission."
(13) Final or annual reports required by law to be submitted to the General Assembly.
(14) Legislative Budget and Finance Committee reports.
(15) Daily legislative session calendars and marked calendars.
(16) A record communicating to an agency the official appointment of a legislative appointee.
(17) A record communicating to the appointing authority the resignation of a legislative
appointee.
(18) Proposed regulations, final form regulations and final-omitted regulations submitted to a
legislative agency.
(19) The results of public opinion surveys, polls, focus groups, marketing research or similar
efforts designed to measure public opinion funded by a legislative agency.
09-55
Appeal of Krawczeniuk
No. 03-2009
November 23, 2009
Reporter's summary: A Scranton Times-Tribune reporter filed a request under the Right-to-Know
Law seeking access to all correspondences between Senator Robert J. Mellow, or his staff, and "the
Senate Clerk's office regarding leases on the senator's Peckville and Mount Pocono offices." The request
was in part denied because the requested documents do not fall under the definition of a legislative
document and are therefore not accessible to the public. The decision was upheld on appeal.
Headnotes:
Legislative intent – As a result of the legislators' decision to use the same definition for "financial
records" in the new and former Right-to-Know Law, an appeals officer can utilize the guidance of
court cases involving the former Right-to-Know Law for clarification on the definition of
"financial records".
Legislative intent - The best way to determine legislative intent is to look at the unambiguous
language of the statute.
Plain language – The plain language of the Right-to-Know Law does not support a broad and
expansive reading of the records accessible to the public as financial records.
Section 102 –
To fall under the definition of a legislative record involving the "results of public opinion surveys,
polls, focus groups, marketing research or similar efforts designed to measure public opinion
funded by a legislative agency," the record must have been created for this purpose. It does not
matter if that would be the use of the record by the requestor.
Case law - In order for a record to be a financial record, there must be a "sufficient connection to fiscally
related accounts, vouchers or contracts." North Hills News Record v. Town of McCandless, 555 Pa. 51,
55, 722 A.2d 1037, 1039 (1999). See, also, Sapp Roofing Company, Incorporated, v. Sheet Metal
Workers' International Association, Local Union No. 12, 552 Pa. 105, 713 A.2d 627 (1998) and LaValle v.
Office of General Counsel of the Commonwealth, 564 Pa. 482, 769 A.2d 449 (2001).
See, also, Appeal of Krawczeniuk (Senate, 04-2009).
09-56
Senate
Statements of Fact
By request dated September 22, 1009, Mr. Borys Krawczeniuk (Appellant), a writer with the Scranton
Times-Tribune, sought access to "…a copy of any memorandums, communications, notes, letters,
instructions, e-mails or other communications between Sen. Robert J. Mellow of [sic] members of his
staff and the Senate Clerk's office regarding leases on the senator's Peckville and Mount Pocano offices.
In particular, I am interested in memorandums, communications, notes, letters, instructions, e-mails or
other correspondences centered on the terms of the leases." This request was made pursuant to the
recently enacted Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §67.101 et seq. (the Act).
By letter dated September 24, 2009, the Senate Open Records Officer, W. Russell Faber, denied
Appellant's request concluding that the records were not accessible legislative records under the Act. By
letter dated October 15, 2009, Appellant has appealed the denial to this office. At the joint request of
the parties, a two week continuance was granted in this case.
Discussion
Section 102 of the Act defines the Senate as a "legislative agency." Section 303(a) of the Act states that,
"A legislative agency shall provide legislative records in accordance with this act." At issue in this appeal
is whether or not the documents and records requested by Appellant are legislative records.
The definition of legislative records contained in Section 102 includes financial records of the Senate and
Appellant first contends the records he seeks are financial records. The definition of a financial record in
Section 102 is, inter aliaI:
(i)
the receipt or disbursement of funds by and agency; or
(ii)
an agency's acquisition, use or disposal of services, supplies, materials,
equipment or property…" (Emphasis is added.)
The threshold inquiry in this appeal must be whether or not the records sought by Appellant are actually
and specifically accounts, vouchers or contracts. The answer must be no.
The requested records are memorandums, notes, e-mails, letters, and any other correspondence. These
types of documents would not be considered account, vouchers or contracts. The scope of the
Appellant's request is broad to the extent that he seeks access to any document that might exist as a
result of the leasing of two senatorial district offices. The statute defines an accessible financial record
much more narrowly.
It is a basic premise of statutory construction that the intention of the General Assembly must be
ascertained and given effect. Cragley v. State Farm Fire and Casualty Co., 586 Pa. 484, 895 A.2d 530
(2006). The legislative intent is best gleaned from the clear and plain language of the statute. Bowser v.
Blom, 569 Pa. 609, 807 A.2d 830 (2002). And "…when the words of the statute are clear and free from all
09-57
Senate
ambiguity, they are presumed to be the best indication of legislative intent." Walker v. Eleby, 577 Pa.
104 at 123, 842 A.2d 389 at 400 (2004).
The section of the Act at issue in this appeal is very clear and the language is plain. The General
Assembly used the specific words account, voucher or contract. Appellant urges a broad and expansive
reading of this definition to include any and all records which might exist as a result of an account,
voucher or contract. That cannot be done when the wording of the statute is free from ambiguity and
constrains the definition of financial record. If the General Assembly wished a more encompassing
definition of financial record, it would most certainly have used different language.
Although the Act is new and recently became effective, the definition of a financial record contained
therein is not new and it is not without judicial interpretation. The identical definition was contained in
the prior Right-to-Know law which was repealed by the present Act. Act of June 21, 1957, P.L. 390, as
amended, 65 P.S. §66.1 et seq. Section 1 of that prior law defined a public record as:
"Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its
acquisition, use or disposal of services or of supplies, materials, equipment or other property…"
The General Assembly reenacted the identical language in the new Act knowing that the courts had
already provided some guidance concerning the words account, voucher and contract.
In Sapp Roofing Company, Inc. V. Sheet Metal Workers' International Association, Local Union No. 12,
552 Pa. 105, 713 A.2d 627 (1998), a plurality of our Supreme Court found that this definition of
"account, voucher or contract" would include a copy of a private contractor's payroll in possession of a
school district. The records were accessible because they evidenced a disbursement of funds by the
school district.
A year later, in North Hills News Record v. Town of McCandless, 555 Pa. 51 at 55, 722 A.2d 1037 at 1039
(1999), the Court adopted the reasoning in Sapp stating,
"Implicit in the Court's decision in Sapp Roofing is the conclusion that the account/vouchers/contracts
category of public records reaches some range of records beyond those which on their face constitute
actual account, vouchers or contracts. Nevertheless, it is clear from Sapp Roofing that, to constitute a
public record, the material at issue must bear a sufficient connection to fiscally related accounts,
vouchers or contracts."
Finally, in LaValle v. Office of General Counsel of the Commonwealth, 564 Pa. 482, 769 A.2d 449 (2001),
the Court again stated that there must be a close relationship between the records sought and the
account, voucher or contract before the record could be an accessible public record. At issue was an
audit report prepared for the Commonwealth.
In this line of cases, the Court was dealing, in each instance, with a request for access to one record. The
Court examined each of these specific records individually. Although the Court was willing to look
beyond the words "account, voucher and contract" to a limited extent, the requested record still needed
to be substantially intertwined or have a close nexus with an account, voucher or contract.
09-58
Senate
In the present case, Appellant is not seeking access to a specific record. It would rather appear that he is
not even seeking access to a complete class of records. Rather, he is seeking access to any document or
record which may exist as a result of leasing two senatorial district offices. The records sought by
Appellant would not cause any disbursement of money by the Senate. Any disbursement of funds would
be in accordance with and pursuant to the terms of the actual leases or contracts which must speak for
themselves. An expansive reading of the Act is not warranted based on either statutory construction or
existing jurisprudence.
Appellant cites a prior request for copies of service purchase contracts made by a different individual.
Along with copies of the actual contracts, the Senate's Open Records Officer also supplied copies of
various memos. Appellant has supplied copies of these memos with his filing and has urged that they
Senate be ordered to continue this "past practice."
The memos supplied by Appellant were indeed very closely related to the service purchase contract. In
fact, they amended the terms of the contract by extending or renewing the contract and causing the
further disbursement of Senate funds. These are exactly the type of individual records it seems the
Court would be willing to accept as accessible financial records even though not facially an account,
voucher or contract. Further, it shows a good faith compliance with the existing law by the Open
Records Officer to supply these ancillary documents. However, I cannot find that such a practice should
now compel the Open Records Officer to go further and release all records or documents which might
exist pertaining to the leasing transaction.
09-59
No. 04-2009
November 23, 2009
Reporter's summary: A Scranton Times-Tribune reporter filed a request under the Right-to-Know
Law seeking access to all documents created by a specified list of contractors for the Senate. The request
was in part denied because the requested documents, aside from the actual contract between the Senate
and the contractors, do not fall under the definition of a legislative document and are therefore not
accessible to the public. The decision was upheld on appeal.
Headnotes:
Legislative intent – As a result of the legislators' decision to use the same definition for "financial
records" in the new and former Right-to-Know Law, an appeals officer can utilize the guidance of
court cases involving the former Right-to-Know Law for clarification on the definition of
"financial records".
Plain language – The plain language of the Right-to-Know Law does not support a broad and
expansive reading of the records accessible to the public as financial records.
Section 102 –
To fall under the definition of a legislative record involving the "results of public opinion surveys,
polls, focus groups, marketing research or similar efforts designed to measure public opinion
funded by a legislative agency," the record must have been created for this purpose. It does not
matter if that would be the use of the record by the requestor.
Case law - In order for a record to be a financial record, there must be a "sufficient connection to fiscally
related accounts, vouchers or contracts." North Hills News Record v. Town of McCandless, 555 Pa. 51,
55, 722 A.2d 1037, 1039 (1999). See, also, Sapp Roofing Company, Incorporated, v. Sheet Metal
Workers' International Association, Local Union No. 12, 552 Pa. 105, 713 A.2d 627 (1998) and LaValle v.
Office of General Counsel of the Commonwealth, 564 Pa. 482, 769 A.2d 449 (2001).
See, also, Appeal of Krawczeniuk (Senate, 03-2009).
09-60
Senate
Statements of Fact
By request dated September 22, 1009, Mr. Borys Krawczeniuk (Appellant), a writer with the Scranton
Times-Tribune, sought access to "…a copy of any memorandums, communications, notes, letters,
instructions, e-mails or other correspondence or work product produced for the state Senate by the
following contractors: James Moran, Patrick Solano, Hardy Williams, Brian J. Cali, Lt. Col. Harold
Donahue and Joseph R. Clapps." This request was made pursuant to the recently enacted Right-to-Know
Law, Act of February 14, 2008, P.L. 6, 65 P.S. §67.101 et seq. (the Act).
Appellant was provided access to copies of these actual contracts. The individual contracts specified the
following duties to be performed. Mr. Moran was engaged to, "perform research on policies, programs
or legislation in PA, other states or the federal government for Senator Robert J. Mellow…for possible
introduction of legislation or for comment on or suggestion of regulations, exexcutive orders or
statements of policy." Mr. Solano agreed to, inter alia, "…provide expertise and consulting services to
the Senate Majority Leader and other Leaders and Members of the Republican Caucus regarding
economic and environmental issues coming before the Senate…" Mr. Williams was engaged in his
capacity as an attorney to provide professional counsel. Mr. Cali was also engaged to provide legal
counsel. Colonel Donahue's contractual duties included, "…advice on military and veterans affairs issues,
nominations, appointments, legislation and regulations…" Finally, Mr. Clapps contracted to, "Gather,
publish and disseminate information to members of the Pennsylvania Senate Democratic caucus which
will assist constituents who are serving as primary care givers to their grandchildren."
By letter dated September 24, 2009, the Senate Open Records Officer, W. Russell Faber, denied
Appellant's request concluding that the records were not accessible legislative records under the Act. By
letter dated October 15, 2009, Appellant has appealed the denial to this office. At the joint request of
the parties, a two week continuance was granted in this case.
Discussion
Section 102 of the Act defines the Senate as a "legislative agency." Section 303(a) of the Act states that,
"A legislative agency shall provide legislative records in accordance with this act." At issue in this appeal
is whether or not the documents and records requested by Appellant are legislative records.
The definition of legislative records contained in Section 102 includes financial records of the Senate and
Appellant first contends the records he seeks are financial records. The definition of a financial record in
Section 102 is, inter aliaI:
(iii)
the receipt or disbursement of funds by and agency; or
(iv)
an agency's acquisition, use or disposal of services, supplies, materials,
equipment or property…" (Emphasis is added.)
The threshold inquiry in this appeal must be whether or not the records sought by Appellant are actually
and specifically accounts, vouchers or contracts. The answer must be no.
09-61
Senate
The requested records are memorandums, communications, notes, e-mails, letters, instructions, work
product or any other correspondence. These types of documents would not be considered account,
vouchers or contracts. The scope of the Appellant's request is broad to the extent that he seeks access
to any document that might exist as a result of the contractual relationship between the Senate or a
senator and a contractor. The statute defines an accessible financial record much more narrowly.
It is a basic premise of statutory construction that the intention of the General Assembly must be
ascertained and given effect. Cragley v. State Farm Fire and Casualty Co., 586 Pa. 484, 895 A.2d 530
(2006). The legislative intent is best gleaned from the clear and plain language of the statute. Bowser v.
Blom, 569 Pa. 609, 807 A.2d 830 (2002). And "…when the words of the statute are clear and free from all
ambiguity, they are presumed to be the best indication of legislative intent." Walker v. Eleby, 577 Pa.
104 at 123, 842 A.2d 389 at 400 (2004).
The section of the Act at issue in this appeal is very clear and the language is plain. The General
Assembly used the specific words account, voucher or contract. Appellant urges a broad and expansive
reading of this definition to include any and all records which might exist as a result of an account,
voucher or contract. That cannot be done when the wording of the statute is free from ambiguity and
constrains the definition of financial record. If the General Assembly wished a more encompassing
definition of financial record, it would most certainly have used different language.
Although the Act is new and recently became effective, the definition of a financial record contained
therein is not new and it is not without judicial interpretation. The identical definition was contained in
the prior Right-to-Know law which was repealed by the present Act. Act of June 21, 1957, P.L. 390, as
amended, 65 P.S. §66.1 et seq. Section 1 of that prior law defined a public record as:
"Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its
acquisition, use or disposal of services or of supplies, materials, equipment or other property…"
The General Assembly reenacted the identical language in the new Act knowing that the courts had
already given guidance concerning the words account, voucher and contract.
In Sapp Roofing Company, Inc. V. Sheet Metal Workers' International Association, Local Union No. 12,
552 Pa. 105, 713 A.2d 627 (1998), a plurality of our Supreme Court found that this definition of
"account, voucher or contract" would include a copy of a private contractor's payroll in possession of a
school district. The records were accessible because they evidenced a disbursement of funds by the
school district.
A year later, in North Hills News Record v. Town of McCandless, 555 Pa. 51 at 55, 722 A.2d 1037 at 1039
(1999), the Court adopted the reasoning in Sapp stating,
"Implicit in the Court's decision in Sapp Roofing is the conclusion that the account/vouchers/contracts
category of public records reaches some range of records beyond those which on their face constitute
actual account, vouchers or contracts. Nevertheless, it is clear from Sapp Roofing that, to constitute a
public record, the material at issue must bear a sufficient connection to fiscally related accounts,
vouchers or contracts."
09-62
Senate
Finally, in LaValle v. Office of General Counsel of the Commonwealth, 564 Pa. 482, 769 A.2d 449 (2001),
the Court again stated that there must be a close relationship between the records sought and the
account, voucher or contract before the record could be an accessible public record. At issue was an
audit report prepared for the Commonwealth.
In this line of cases, the Court was dealing, in each instance, with a request for access to one record. The
Court examined each of these specific records individually. Although the Court was willing to look
beyond the words "account, voucher and contract" to a limited extent, the requested record still needed
to be substantially intertwined or have a close nexus with an account, voucher or contract.
In the present case, Appellant is not seeking access to a specific record. It would rather appear that he is
not even seeking access to a complete class of records. Rather, he is seeking access to any document or
record which may exist as a result of any contractual relationships. The records sought by Appellant
would not cause any disbursement of money by the Senate. Any disbursement of funds would be in
accordance with and pursuant to the terms of the actual contracts not any extraneous documents. Such
an expansive reading of the Act is not warranted based on either statutory construction or existing
jurisprudence.
Appellant also contends that the records he requested fall within subsection (19) of the definition of
accessible legislative records contained in Section 102 of the Act. That section provides access to:
"The results of public opinion surveys, polls, focus groups, marketing research or similar efforts designed
to measure public opinion funded by a legislative agency."
In support of this contention, Appellant offers simply one sentence. "Given the nature of the contracts,
the records certainly focus on such efforts."
There is a seriatim recitation of the duties involved in each of these individual contracts in the
Statements of Fact earlier in their opinion. None of these contracts has anything to with polling. Not one
of these contractual provisions offers even a scintilla of evidence that they were designed as an effort to
measure public opinion. No authority has been offered that these contracts would fall within the cited
definition and I do not know of any. Therefore, the records existing as a result of these contractual
relationships do not fall within this definition of an accessible legislative record.
Finally, it must be noted that the Open Records Officer argues that the records existing as a result of the
contracts with various attorneys are also protected from access by the attorney/client privilege. Having
already determined that the request records do not fall within the definition of an accessible legislative
record, it is not necessary to address this argument at this time.
09-63
Appeal of Murphy
No. 2010-0009 MUR
March 12, 2010
Reporter's summary: A Patriot News reporter requested names, current salaries and salary
increases for 12 House Democratic legislative staffers with specific anniversary dates. The request was
denied because no document existed that contained this information. The requestor appealed the denial,
which was upheld by the appeals officer.
Headnotes:
Section 705 - If no record exists, an agency has no obligation to create the record.
review.
Case law- When determining if a request is sufficiently specific, the appeals officer may rely on case law
involving the former right-to-know law that looks to the characteristics of the request. Associated
Builders & Contractors, Inc. v. Dept. of General Services, 747 A.2d 962 (2000). See also, Berman v.
Pennsylvania Convention Center, 901 A.2d 1085 (Pa. Cmwlth. 2006) and Mooney v. Temple University
Board of Trustees, 448 Pa. 424, 292 A.2d 395 (1972).
10-1
Appeal of Murphy
Decision
This is an appeal, pursuant to Section 1101(a)(1) of the Right-to-Know Law, (Act of Feb. 14,
2008, No. 8, P. L. 6) (the “RTKL”) received from Jan Murphy (“Requestor”) on February 12, 2010, of a
decision issued Anthony Frank Barbush, Open Records Officer, Pennsylvania House of Representatives,
Room 129, Main Capitol, Harrisburg, PA 17120 (“Open Records Officer”).
Statement of Facts
the submission are as follows:
1. On February 3, 2010, Nedra Dugan, Acting Open Records Administrator for the House of
Representatives (“Open Records Administator”) received Requestor’s RTK Request form, by facsimile,
which stated:
I would like to receive the names and recently approved annual meritorious salary increases of
the 12 House Democratic legislative staffers whose anniversary dates fell in early January 2010,
but their annual review had been processed prior to the House Democratic caucus salary
controls taking effect on Jan. 1, 2010. I would like to receive what their salary is now and the
size of increase they received.”
(The “February 3rd Request”).
2. On February 10, 2010, within the statutory five (5) business day response period, the Open
Records Officer issued a written reply to Requestor, denying the request because: 1) no legislative
record exists in response to the request, and 2) citing RTKL § 705 that an agency is not required to create
or compile any records for RTKL requests which do not currently exist (the “Denial”). On February 12,
2010 Requestor’s appeal letter, dated February 11, 2010 was received by this Appeal Officer (“February
12th Letter Appeal”).
3. In the appeal, Requestor “challenges the assertion that while no document may exist that lists
the requested information, certainly a record exists that contains this information or how else would the
House know how much to pay these individuals.” Id. Requestor further states that “if it would be more
convenient, [she’d] be willing to figure out the increase [herself] if the previous salaries for these
employees were provided. She also asserts that “the chief clerk will issues a report on or before the first
of February 2011 that will include information on their current salaries that [she] can compare to the
payroll information released on Jana 29, 2010 to determine the amount of pay increases for these
staffs.” Id.
4. On February 24, 2010, this Appeals Officer provided a copy of the February 12th Letter Appeal
to the Open Records Officer and advised him to submit any additional documents supportive of his
position by Noon on Monday, March 1, 2010 a memorandum opposing the appeal was received which
contained the February 17th and February 28th RTKL requests referred to below.
10-2
Appeal of Murphy
5. Also on February 24, 2010 this Appeals Officer acknowledged receipt of the February 12th
Letter Appeal, and advised Requestor to submit any additional documents supportive of her position, by
Noon on Monday, March 1, 2010. Requestor did not submit any additional supportive documents or
other correspondences.
6. On February 17, 2010 the Acting Open Records Administrator received another RTK Request
form from Requestor stating:
I would like to review the payroll for individual House Democratic Caucus employees by pay period for
the months of December 2009 and January 2010. But before providing this to me, please advise as to
whether the cost will exceed $50.”
(The “February 17th Request”).
7. On February 26, 2010 the Acting Open Records Administrator received yet another RTK
Request form from Requestor stating:
I am clarifying a request I filed recently that sought payroll for individual House Democratic Caucus
employees by pay period for the months of December 2009 and January 2010. I specifically want a
record that has the names, titles and annual salaries for all caucus employees, as of December 31, 2009
and January 2010.
(The “February 26th Request”).
8. On March 4, 2010 this Appeals Officer requested that Requestor clarify whether she wished
to continue the appeal or withdraw it in light of discussions with representatives of the Democratic
Caucus that had reported occurred. Despite being directed to submit a response by March 8, 2010,
Requestor failed to do so, and this appeal continues.
Standard of Review
RTKL does not restrict the documents which can be submitted. Instead, the RTKL broadly buttresses that
(a)(2) (emphasis added). Additionally, among other things, the appeals officer is authorized by the RTKL
to hold a hearing and admit testimony, documents and other evidence which the appeals officer
believes to be reasonably probative and relevant to an issue in dispute. Id. (emphasis added).
Accordingly, a de novo or broad standard of review will be used in reviewing appeals filed under the
RTKL1.
Discussion
10-3
Appeal of Murphy
As a preliminary matter, we determine whether the February 3rd Request satisfies the
requirements of § 703, Written requests. That section expressly states:
A written request should identify or describe the records sought with sufficient specificity to
enable the agency to ascertain which records are being requested and shall include the name
and address to which the agency should address its response.
Id. The issue of the sufficiency of the specificity of the records sought has been addressed in several
cases by the courts2. In Associated Builders & Contractors, Inc. v. Dept. of General Services, 747 A.2d 962
(2000), the court stated:
Where the request is not sufficiently specific, the agency has no obligation to comply with the
request because the lack of specificity prevents the agency from determining whether to grant
or deny the request, Id. At 860. Furthermore, a lack of specificity in the request makes it
difficult, if not impossible, for this court to conduct meaningful review of the agency’s decision.
Id. Accord, Arduino v. Borough of Dunmore, 720 A,2d 827 (Pa. Cmwlth. 1998); Hunt , Dept of
Corrections, 698 A.2d 827 (Pa. Cmwlth. 1997).
Id. At 966. The court then reviewed several of the requests characterizing them as “akin to document
requests under the civil discovery rules, i.e. ‘any and all documents relating to [subject matter]’”. Id. The
court found that that such requests “fail to provide sufficient facts to determine what type of record is
being requested and whether any part of the record constitutes a public record.” Id. See also, Berman v,
Pennsylvania Convention Center, 901 A.2d 185 (Pa. Cmwlth. 2006); and Mooney v. Temple University
In the instant matter, Requestor sought “the names and salary increases of 12 Democratic
Caucus staffers whose anniversary dates fell in January 2010, but who were granted pay increases prior
to the caucus’s salary controls taking effect on January 1, 2010. “ Requestor does not explain or identify
the basis for the assertion that 12 staffers received the subject salary increases, and the Open Records
Officer does contest the lack of specificity in the February 3rd Request. Contrary to the Open Records
Officer’s contention, that request differs from those that the courts have rejected as broad and
unlimited general discovery requests. Additionally, Requestor persuasively argues that the requested
information constitutes a financial record which falls under the definition of a “legislative record.”
February 12th Letter Appeal.
The Denial in this case was partially based on the assertion that “no legislative record exists in
response to the request.” Denial. RTKL § 705 explicitly states that:
When responding to a request for access, an agency shall not be required to create a record
which does not currently exist or to compile, maintain, format or organize a record in a manner
to which the agency does not currently compile, maintain, format or organize the record.
Id. Clearly, if no legislative record exists, then it was proper to deny the February 3rd Request.
10-4
Appeal of Murphy
Requestor states that she “challenges this assertion” that no record exists. February 12th Letter
Appeal. However, she appears to concede the assertion when she states “while no document may exist
that lists the requested information.” Id. Despite the apparent concession, Requestor then appears to
concurrently argue that “certainly a record exists that contains this information or how else would the
House know how much to pay these individuals.” Id. Requestor argues that such records should exist,
but her February 3rd Request is for “information” not “records.” Unfortunately for the Requestor, the
RTKL requires a legislative agency to provide access to “records”, not to extract information from various
sources, and the n compile a record responding to a request.
Perhaps the reported discussions between the parties and the modified RTKL requests
submitted by Requestor subsequent to the filing of this appeal will produce the information she seeks.
For the reasons stated herein, the Denial was proper and Requestor’s appeal fails.
Reizdan B. Moore
10-5
Appeal of Murphy
Notes:
to appeal's officers under section 1102 of the RTKL more closely approximates that granted to
2. These cases were decided under the predecessor Right-to-Know Act, Act of June 21, 1957, P.L.
390 as amended (65 P.S. §66.1, et seq.) rather than the new RTKL, Act of February 14, 2008, P.L.
6, No.3 (65 P.S. §67.101, et seq.) Although several definitions, burdens and other provisions
were changed, both statutes contain the identical provision requiring that a requestor "identify
or describe the records sought with sufficient specificity to enable the agency to ascertain which
records are being requested." RTKL, §703; Right to Know Act, §2(c).
10-6
Appeal of Joyce
No. 2010-0010 JOY
May 28, 2010
Reporter's summary: A reporter for the York Daily Record requested e-mails from a former
Representative from four months in 2005. The request was denied because e-mail is not one of the
delineated legislative records, the records would be protected by privilege and the request was overly
broad. On appeal, requestor argued that e-mails should be examined for content instead of categorically
excluded. The appeals officer upheld the denial because there is no delineated legislative record category
that would include any information found in e-mails as a general category, the communications fell
under privileged communications and the request is overly broad.
Headnotes:
Statutory construction Delineations – By creating the category of "legislative records" and delineating 19 subcategories
must provide public access to.
Section 102 – E-mail correspondence with General Assembly members does not fall within the statutory
definition of "legislative record" and is therefore not publicly accessible under the Right-to-Know Law.
Section 305(b) - Legislative records may be protected by privilege if the record involves certain legislative
activities protected by the Speech or Debate Clauses in the U.S. and Pennsylvania Constitutions.
review.
Case law – Communications between legislators or legislators and constituents may be privileged if the
communications are within a "legitimate sphere of legislative activity." Uniontown Herald Standard
Newspapers v. Roberts, 777 A.2d 1225 (2001).
Case law – When determining if a request is sufficiently specific, the appeals officer may rely on case law
involving the former Right-to-Know Law that looks to the characteristics of the request. Associated
Builders & Contractors, Inc. v. Dept. of General Services, 747 A.2d 962 (2000). See also, Berman v.
Pennsylvania Convention Center, 901 A.2d 1085 (Pa. Cmwlth. 2006) and Mooney v. Temple University
10-7
Appeal of Joyce
This is an appeal pursuant to Section 1101(a)(1) of the Right-to-Know Law, (Act of Feb. 14, 2008,
No.3, P.L.6) (the "RTKL"), received from Tom Joyce ("Requestor") on April 29, 20101. This is an appeal of
a denial issued by Anthony Frank Barbush, Open Records Officer, Pennsylvania House of
Representatives, Room 129, Main Capitol, Harrisburg, PA 17120 ("Open Records Officer").
By letter dated April 12, 2010, Requestor mailed an RTKL request to Brooke I. Lewis, RTK
Administrator, Pennsylvania House of representatives, ("RTK Administrator") seeking access to and
copies of emails sent and received by [a former state representative] in specified months in 2005. By
letter dated April 19, 2010, the Open Records Officer denied the request. The denial met the
requirements of Section 903 of the RTKL. By letter dated April 26, 2010, which was received on April 29,
2010, Requestor filed the within RTKL appeal.
Statement of Facts
There are no factual disputes that arise from the parties' submissions. The facts discerned from
1. By letter dated February 2, 2010, received on February 12, 2010, Requestor mailed an RTKL
request to the RTK Administrator for "access to and copies of e-mails sent and received by former state
Rep. Steve Stetler in April, May, October and November 2005." He agreed to pay reasonable duplication
fees for processing his request. He further requested "all deletions by justified by reference to specific
exemptions of the act" and he indicated that he expected "all segregable portions of otherwise exempt
material be released."
2. By letter dated February 19, 2010, the Open Records Officer denied the request stating that the
information requested was not a "legislative record" under the RTKL, as email correspondence does not
fall within the definition of "legislative records." Requestor was advised of the process to appeal the
denial; however no appeal of the February 19, 2010 denial was filed.
3. By letter dated April 12, 2010, received on April 19, 2010, Requestor sent a second request to the
RTK Administrator that was identical to the February 2, 2010 request. ("Letter Request").
4. On April 19, 2010, the Open Records Officer denied the request, stating that Requestor made an
identical request on February 12, 2010 that was denied on the basis that the requested email
correspondence does not fall within the definition of a "legislative record", and the Open Records
Officer again notified Requestor of his appeal rights. ("Denial").
5. By letter dated April 26, 2010, and received on April 29, 2010, Requestor filed an appeal of the
Open Records Officer's decision that the emails requested were not legislative records, and asserted
that the Denial "does not address the content of the emails." Requestor further states that "the RTKL
clearly states that content, not the form which the information takes, is what determines whether or not
information is accessible." Finally, Requestor states that he "would argue that denying access to email
simply because it is email violates the law." ("Letter Appeal".)
10-8
Appeal of Joyce
6. On April 29, 2010, a Certified letter (with a Request for a Return Receipt) was sent to Requestor
from this Appeals Officer acknowledging his April 26, 2010 letter. Requestor was directed to submit a
copy of his RTKL request that was received by the Open Records Officer on April 19, 2010. Pursuant to
Section 1102 (a)(1) of the RTKL Requestor was also advised that he may submit any additional
documents in support of his position that he wished to have considered, and that such documents must
be submitted by Noon on May 7, 2010. Neither the RTKL request, nor any additional supportive
documents, was submitted by Requestor.
7. Additionally, on April 29, 2010, a letter was hand-delivered to the Open records Officer informing
him of receipt of the of the Letter Appeal, and advising him that may submit any additional documents
in support of his position that he wished to have considered, and that such documents must be
submitted by Noon on May 7, 2010, the RTK Administrator submitted a 7-page Memorandum opposing
the appeal with attachments. ("Memorandum in Opposition".)
8. Neither a hearing, nor the submission of additional documents, was deemed necessary to resolve
any issues inherent in this appeal.
Discussion
A. Scope of Review
review, or a broad standard of review, Section 1101 (a) (1) mandates that the Appeals Officer “set a
authority by directing the Appeals Officer to “review all information filed relating to the request.” §
1102 (a) (2) (emphasis added)). Additionally, among other things, the appeals officer is authorized by
the RTKL to hold a hearing and admit testimony, documents and other evidence which the appeals
officer believes to be reasonably probative and relevant to an issue in dispute. Id. (Emphasis added).
the RTKL.2
The Requestor has requested "access to and copies of emails sent and received by [a former state
representative] in April, May, October, and November of 2005." Letter Request. The RTK Administrator,
among other things, argues that the information requested is not a “legislative record” and is therefore
not accessible under the RTKL. Memorandum in Opposition. For the reasons set forth below, the
Appeals Officer affirms the denial.
As stated in the previous determinations3, the RTKL separately defines Commonwealth agency,
judicial agency, local agency, and legislative agency and grants access to certain records possessed by
each of those agencies. In the case of legislative records, the RTKL defines a “legislative agency” as one
of 15 identified legislative entities, and specifically identifies the 19 types of records defined as
“legislative records.” § 102. A legislative records in the possession of a legislative agency is then
10-9
Appeal of Joyce
presumed to be available for public access unless, it is: 1) exempt from disclosure under section 708(b);
2) protected by a privilege; or 3) exempt from disclosure under any other Federal or State law,
regulation, judicial order or decree. §305. A legislative agency claiming that a legislative record is
exempt bears the burden of proving exemption by a preponderance of evidence. § 708 (a) (2). If a
record in possession of a legislative agency falls within the definition of a “legislative record” and is not
exempt or privileged from disclosure, it must be disclosed. §§ 303, 305.
resolutions, fiscal notes, rules of a chamber, cosponsorship memorandum, records of votes, and daily
legislative calendars. § 102. Unfortunately for Requestor, the list of 19 categories does not include any
“emails.” In fact, the only references in the list of 19 that involve “communications” in any form or to a
Id.
Requestor’s argument that he was “denied access to email simply because it is email” is
inaccurate. Letter Appeal. He was denied access to the requested emails because he has no statutory
right to such access under the RTKL. The Open Records Officer correctly stated that the information
requested is not encompassed within the definition of “legislative records.” Furthermore, there is no
common or approved usage of any of the words included within the 19 categories of “legislative
records” that would support an expansion of that definition to grant access to the emails sought by
Requestor.4
C. Records Exempted/ Protected By Privilege
Undeterred by this definitional challenge, Requestor boldly asserts that access to requested
records should be determined based on the “contents” of the records not the “form.” Letter Appeal.5
This argument also fails. Section 305(b) of the RTKL, pertaining to legislative records and financial
records, states:
A legislative record in the possession of a legislative agency and a financial record in the
possession of a legislative agency and a financial record in the possession of a judicial agency
shall be presumed to be available in accordance with the act the presumption shall not apply if:
(1) The record is exempt under section 708;
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other federal or State law, regulation
or judicial order or decree.
(Italics added.)
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Appeal of Joyce
Id. Both the federal and state courts have consistently held that the Speech or Debate Clauses in Article I
§6 of the U.S. Constitution, and in Article II, §15 of the Pennsylvania Constitution, respectively, provide
an absolute privilege to legislators for certain legislative activities. U.S. CONST. art, I, §6; PA CONST. art.
II, §15. E.gs., Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 763, (1951); Powell v. McCormack, 395 U.S.
486, 503, 23 L.Ed.2d 491, 89 S.Ct. 1944 (1969); Consumers Education and Protective Association v.
Nolan, 470 Pa 372, 382, 368 A.2d 675, 680 (1977).
Included within the scope of the privilege are communications sent to and received by
legislators from other legislators and constituents that fall within the “legitimate sphere of legislative
activity.” Uniontown Herald Standard Newspapers v. Roberts, 777 A.2d 1225 (2001), affm., and
remanded on other grounds, 576 Pa 231, 839 A.2d 185 (2003). In Uniontown Herald Standards v.
Roberts, Commonwealth Courts upheld the legislative privilege holding that:
Included within the legislative process is drafting legislation and debating bills on the floor of the
House. However, we believe that the “sphere of legislative activity” extends much farther than
merely the debating and drafting of laws. It is not uncommon for legislators to spend a majority
of time speaking with other lawmakers and constituents, which includes telephone
conversations, regarding proposed legislation or other matters of concern. As the Eastland Court
concluded that there needs to be protection of “the integrity of the legislative process,”
discussions with other lawmakers and constituents is surely included within the ambit of
“legislative process.” Therefore, we hold that business telephone calls made by members of the
General Assembly fall within the meaning of “legitimate legislative activity.” (Emphasis added.)
Id. At 1233.
Consistent with the recognition of this constitutional privilege, the RTKL expressly exempts from public
access, records regarding “the drafting of a bill, resolution, regulation, statement of policy, management
directive, ordinance or amendment thereto prepared by or for an agency.” §708(9). The exemption also
expressly extends to records that reflect:
(A) The internal, predecisional, deliberations of an agency, its members, employees or officials or
predecisional deliberations between agency members, employees, or officials and members,
employees or officials of another agency, including predecisional deliberations relating to a
budget recommendation, legislative proposal, legislative amendment contemplated or
proposed policy or course of action or any research, memos or other documents used in the
predecisional deliberations.
(B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative
proposal, or regulation.
§708(10).
Unfortunately for Requestor, the emails that he seeks are not “legislative records” as defined by
the RTKL. However, even if the emails were legislative records, those that reflect the subjects referred to
in Section 708 (9) and (10) of the RTKL or by the courts’ decisions would be privileged and thus
inaccessible by Requestor.
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Appeal of Joyce
D. Specifically of the Request
Finally, there is the issue of the adequacy of the RTKL request. Section 703 of the RTKL states:
A written request should identify or describe the records sought with sufficient specificity to
enable the agency to ascertain which records are being requested and shall include the name
and address to which the agency should address its response.
§ 703.
The issue of sufficiency of the specificity of the records sought has been addressed in several cases by
the courts6. In Associated Builders & Contractors, Inc. v. Dept. of General Services, 747 A. 2d 962 (2000),
the court stated:
Where the request is not sufficiently specific, the agency has no obligation to comply with the
request because the lack of specificity prevents the agency from determining whether to grant
or deny the request. Id at 860. Furthermore, a lack of specificity in the request makes it difficult,
if not impossible, for this court to conduct meaningful review of the agency’s decision. Id.
Accord, Arduino v. Borough of Dunmore, 720 A.2s 827 (Pa. Cmwlth. 1998); Hunt v. Dept. of
Corrections, 698 A. 2d 147 (Pa. Cmwlth. 1997).
Id. at 966. The court then reviewed several of the requests characterizing them as “akin to document
requests under the civil discovery rules, i.e. ‘any and all documents relating to [subject matter]’”. Id. The
court found that such requests “fail to provide sufficient facts to determine what type of record is being
requested and whether any part of the record constitutes a public record.” Id. See also, Berman v.
Pennsylvania Convention Center, 901 A. 2d 1085 (Pa. Cmwlth. 2006); Mooney v. Temple University Board
of Trustees, 448 Pa. 424, 292 A. 2d 395 (1972).
The Open Records Officer’s argument that Requestor has not made his request with the
requisite specificity is persuasive. It appeals the Requestor seeks the entirety of the emails to and from
the former representative during a four (4) month period. Requestor has not explained how his broad
request is “limited” to avoid requesting privileged records, nor has he explained why his request should
not be regarded as a “fishing expedition” akin to a general discovery request.
Conclusion
and available as "legislative records" under the RTKL. The documents requested in the instant matter do
not fall within the purview of that definition. Additionally, the requested records are protected by a
constitutional privilege, or are statutorily exempt from access even if they were determined to be
legislative records. Finally, even if the request pertained to legislative records that were not exempt or
protected, the Request lacks sufficient specificity to trigger the agency's obligation to comply with the
request. For the reasons stated herein, the Denial was proper and the appeal fails.
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Appeal of Joyce
Notes:
1. The appeal letter was dated April 26, 2010, but the letter was not postmarked until April 27,
2010. It was received by this Appeals Officer on April 29, 2010.
finders of fact in administrative hearings. In Unemployment Compensation mattes, appeals are
101.87. Appeals of the referee’s decision are made to the Board of Unemployment
3. The issue was addressed in the following previously issued Decisions: RTKL Appeal No. 20090001 SCO; RTKL Appeal No. 2009-0002 SCO; RTKL Appeal No. 2010-0009 MUR
construed according to their common and approved usage. 1 Pa.C.S. § 1903 (a). When the
words of a statute are free and clear from ambiguity.
5. Requestor failed to provide any legislative or judicial authority for this argument even though he
was notified to provide any additional supportive documents that he wished to have considered.
6. These cases were decided under the predecessor Right-to-Know Act, Act of June 21, 1957, P.L.
390 as amended (65 P.S. §66.1, et seq.) rather than the new RTKL, Act of February 14, 2008, P.L.
6, No. 3 (65 P.S. §67.101, et seq.) Although several definitions, burdens and other provisions
were changed, both statutes contain the identical provisions requiring that a requestor “identify
or describe the records sought with sufficient specificity to enable the agency to ascertain which
records are being requested.” RTKL, §703; Right to Know Act, §2(c).
10-13
Appeal of Levy
No. 1-2010
September 16, 2010
Reporter's summary: Requester requested documents related to payment for legal services for
certain Senate Members. The documents are accessible but may be redacted based on the attorneyclient privilege for both services rendered and the name of the client so long as the communications were
made "without the presence of strangers" and "not for the purpose of committing a crime or tort."
Headnotes:
Case law – "The burden of establishing privilege is on the party seeking to prevent disclosure." Ario v.
Deloitte Touche, LLP, 934 A.2d 1290 at 1294 (Pa. Cmnwlth. 2007).
Case law – Intra-Senate type communications may retain a privileged status and be shared with
employees of the Senate on a "need-to-know basis." Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174
F.R.D. 609 at 633 (M.D. Pa. 1997).
Case law – The work-product doctrine "is designed to shelter the mental processes of an attorney,
providing a privileged area within which he can analyze and prepare his client's case." Birth Center v. St.
Paul Cos., 727 A.2d 1144 at 1165 (Pa. Super. 1999).
10-14
Appeal of Levy
Senate
Statement of Fact
By letters dated June 22, 2010, Mr. Marc Levy (Requester), a reporter with the Associated Press,
sought access copies of "all bills, contracts and payment records related to the hiring on any outside
lawyer or law firm to represent Senator Robert J. Mellow beginning Jan. 2, 2009." An identical request
was also made for any current or former employees of the Senate Democratic Caucus beginning January
1, 2009. These requests were submitted pursuant to the Right-to-Know Law, Act of February 14, 2008,
P.L.6, 65 P.S. §67.101 et seq. (RTKL).
The Senate's Open Records Officer provided copies of the documents to the Requester on
August 3, 2010. However, redactions were made before the documents were made available to the
Requester and certain specific redactions are at issue in this appeal which was filed in this office on
August 11, 2010. A one week continuance was granted in this case.
At the request of this Appeals Officer, both the Seante and the Requester have submitted copies
of the redacted documents into evidence. These five packets of legislative records include:
1. An April 2007 contract between the Senate and James F. Tierney, IV, Esquire. The name of the
client to receive legal representation by Mr. Tierney has been redacted. An April 12, 2007 letter from
Attorney Tierney to the Senate with two paragraphs redacted. Invoices from Attorney Tierney to the
Senate dated December 12, 2008, April 15, 2009, July 13, 2009, October 19, 2009, November 13, 2009,
December 10, 2009 and January 14, 2010. On each of these invoices, the description of the professional
legal services rendered was redacted.
2. A February 18, 2010 letter from the Senate to Brian J. Cali, Esquire engaging his legal services.
The name of the client to be represented has been redacted. Invoices from Attorney Cali to the Senate
for the months of November and December, 2009 and January, February, March, April and May 2010.
The description of the legal services rendered on each of these invoices has been redacted.
3. A May 11, 2010 letter from the Senate to Sal Cognetti, Jr. Esquire engaging his legal services.
The name of the client to be represented has been redacted. Invoices from Attorney Cognetti to the
Senate for the periods of November through May, 2009 and June through August 2009. The description
of the legal services rendered on each of these invoices has been redacted.
4. A June 2007 contract between the Senate and Alan C. Kohler, Esquire. The name of the client
to be represented has been redacted. A description of the legal services to be provided by Attorney
Kohler has been redacted. A June 11, 2007 letter of engagement from the Senate to Attorney Kohler
with a paragraph and a partial sentence redacted. Invoices from Attorney Kohler to the Senate dated
October 13, 2008, November 11, 2008, December 3, 3008 and December 31, 2008. The description of
the legal services rendered on each of these invoices has been redacted.
5. A letter from Jane Gowen Penny, Esquire to the Senate confirming representation. The
purpose of the representation and the identification of the client has been redacted. A February 5, 2010
invoice from Attorney Penny to the Senate. The name of the client has been redacted. The description
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Appeal of Levy
Senate
of the legal services rendered has been redacted. A February 22, 2010 letter to the Senate from the
client authorizing the Senate to pay Attorney Penny's invoice. The client's name is redacted.
For each of these five clients, these financial records do indicate which attorney was hired. In
addition, the time expended by each attorney, the dates the services were provided, the hourly rate
charged for the services or the fee arrangements and the amounts paid by the Senate are revealed.
In the cover letter to the Requester providing copies of these documents, the Senate has
asserted that the redacted information is protected by the attorney-client privilege and not accessible
pursuant to section 305(b) of the RTKL. 65 P.S. §67.305(b). The Requester contends that the identity of
any client and the purpose or reason for engaging an attorney are not covered by the attorney-client
privilege.
Requester also questions whether or not the Senate has provided a full and adequate response
to his request for access to legislative records. Requester specifically requested access to the records of
"any current or former employee of the Senate Democratic caucus." The response from the Open
Records Officer specifically states that the records provided were for "any employee of Senator
Mellow…"
Discussion
The attorney-client privilege is part of the codified law of Pennsylvania. The relevant statutory
language, found at 42 Pa.C.S. §5928, is as follows:
"In a civil matter counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled to disclose the same, unless
in either case this privilege is waived upon the trial by the client."
In criminal actions, the statutory counterpart is found at 42 Pa.C.S. §5916.
Whether or not the attorney-client privilege will attach and protect client identity and the
purpose or reasons why various attorneys were engaged is a question or conclusion of law made based
on the facts presented for each of the five clients. Nationwide Mutual Insurance Company v. Fleming,
924 A.2d 1259 (Pa. Super. 2007), appeal granted 935 A.2d 1270 (Pa. 2007); In re Estate of Wood, 818
A.2d 568 (Pa. Super 2003), appeal denied 882 A.2d 479 (Pa. 2005); Martin Marietta Materials, Inc. v.
Bedford Reinforced Plastics, Inc., 227 F.R.D. 382 (W. D. Pa. 2005).
The Superior Court has recently stated, "…the party who has asserted the attorney-client
privilege must initially set forth facts showing that the privilege has been properly invoked…" Carbis
Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 at 581 (Pa. Super. 2007). In accord: T.M. v. Elwyn,
Inc., 950 A.2d 1050 at 1063 (Pa. Super 2008) Commonwealth Court, as well, has stated that, "the party
asserting the privilege has the initial burden to prove that it is properly invoked…" Joe v. Prison Health
Srevices, Inc., 782 A.2d 24 at 31 (Pa Cmnwlth. 2001). More recently, the court again stated, "The burden
of establishing privilege is on the party seeking to prevent disclosure.", 782 A.2d 24 at 31 (Pa Cmnwlth.
10-16
Appeal of Levy
Senate
2001). More recently, the court again stated, "The burden of establishing privilege is on the party
seeking to prevent disclosure." Ario v. Deloitte Touche, LLP, 934 A.2d 1290 at 1294 (pa. Cmnwlth. 2007).
In deciding whether or not to conclude that an attorney-client privilege exists, four criteria must
be examined. Those are:
1. The asserted holder of the privilege is, or sought to become, a client/
2. The person to whom the communication was made is a member of the bar of a court or his
subordinate.
3. The communication relates to a fact of which the attorney was informed by his client, without
the presence of strangers, for the purpose of securing either an opinion of law, legal services or
assistance in a legal matter and not for the purpose of committing a crime or tort.
4. The privilege has been claimed and is not waived by the client. Nationwide, supra. at 1264;
Commonwealth v. Mrozek, 657 A.2d 997 at 998 (Pa. Super. 1995); Montgomery County v. Microvote
Corporation, 175 F.3d 296 at 301 (C.A. 3 (Pa.) 1999).
The evidence on the record in this case from which facts may be determined consists solely of
copies of the redacted documents supplied to Requester. Nevertheless, sufficient facts may be gleaned
from this documentary evidence to do a partial examination in accordance with the criteria outlined
above.
There are five "sets" of redacted documents for five clients that were provided to the
Requester. In each instance, it is indicated that each individual as a holder of the privilege did indeed
seek to become a client of an attorney and that each individual did communicate this to the attorney.
This communication from the client would explain the purpose for which the attorney was being
engaged. That is, what was the necessity or circumstance causing each of the clients to seek out and
engage the attorney. Such a confidential initial communication from a client to counsel goes to the heart
of the attorney-client privilege. Furthermore, it is not unreasonable to conclude that these clients also
expected their identities to be protected by the privilege especially since they have a heightened
awareness of the public nature of their employment. By these redacted submissions, each client has
evidenced a legitimate expectation of confidentiality and privacy in dealing with their counsel. Finally,
the redactions in these documents and this appeal itself clearly indicate that each of these five
individuals is not waiving but is seeking to claim the attorney-client privilege.
It is impossible from the evidence submitted to determine whether or not the communications
of identity and the purpose for which the attorney was being engaged were made "without the
presence of strangers" and "not for the purpose of committing a crime or tort." This lack of evidence
does not, however, vitiate the privilege at this point.
It must be noted that Mr. Levy does argue that the documents themselves evidence a w3aiver
of the attorney-client privilege since they were shared with the Chief Clerk of the Senate1 for the
purpose of paying the legal fees. Such a conclusion cannot be made. Such intra-Senate type
10-17
Appeal of Levy
Senate
communications may retain a privileged status and be shared with employees of the Senate on a "needto-know basis". Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609 at 633 (M.D. Pa. 1997).
Citing In re Grand Jury 90-1, 758 F. Supp. 1411 (D. Colo. 1991), the Andrtriz court further held at 633,
"Only when the communications are relayed to those who do not need to know the information to carry
out their work or make effective decisions on the part of the company is the privilege lost." See also:
SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467 at 476 (E.D. Pa. 2005); Southeatern
Pennsylvania Transportation Authority v. CaremarkPCS Health, L.P., 254 F.R.D. 253 at 258 (E.D. Pa.
2008).
In the present case, it can be discerned that the records at issue were shared with the Chief
Clerk of the Senate. The Chief Clerk is an elected officer of the Senate. It is well within the scope of his
employment to receive copies of these records and make payment of the legal fees incurred by the
Senate on behalf of its Members or employees. These documents do not facially reveal a waiver of the
attorney-client privilege for this reason. However, it is equally impossible to conclude that these
communications were made "without the presence of strangers" without further evidence being
presented.
"The attorney-client privilege has been a part of Pennsylvania law since the founding of the
Pennsylvania colony…" Commonwealth v. Noll, 662 A.2d 1123 at 1126 (Pa. Super. 1995) and, "the
attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for
confidential communications in common law" Nationwide, supra. at 1263. Our Supreme Court has even
termed it "the most revered of the common law privileges." Commonwealth v. Maguigan, 511 A.2d
1327 at 1333 (Pa. 1986); Commonwealth v. Chmiel, 738 A.2d 406 at 414 (Pa. 1999).
In light of the foregoing, the attorney-client privilege deserves the utmost deference in any
proceeding and must be zealously guarded and protected if possible. In this case, the Senate must be
given the opportunity to offer and remedy that lack of objective indicia on this record to support the
attachment of the attorney-client privilege. The Senate may provide sworn affidavits, statements
pursuant to 18 Pa.C.S. §4904 or any other probative evidence to conclude that the attorney-client
privilege compels each redaction of client identity and purpose or reason for hiring an attorney for each
of the five clients individually. Specifically, the Senate must address that these communications from the
clients to their counsel were made without the presence of strangers and not for the purpose of
committing a crime or tort. Such a remedy has been permitted in similar RTKL cases involving the
attorney-client privilege. See: Thompson v. Dickinson Township, Office of Open Records (OOR) Dkt. AP
2009-302; Nychis v. North Versailles Township, OOR Dkt. AP 2009-986; Latkanich v. Washington
Township, OOR Dkt. 2010-308.
Requester has also questioned the adequacy of the Senate's response to his inquiry. Requester
requested records for any Democratic caucus employee and the Open Records Officer provided records
for employees of Senator Mellow. The Senate argues in a footnote in its memorandum of law that is has
provided the records for all employees and not just Senator Mellow. However, there is no evidence on
record to support such a finding. The Senate may provide and affidavit to the Requester that the
requested records for all caucus employees have been produced and no other records exist. In the
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Appeal of Levy
Senate
alternative, the Senate must provide records for any other caucus employees. Moore v. Office of Open
Records, 992 A.2d 907 (Pa. Cmnwlth. 2010).
For the first time, the Senate has also argued in its memorandum of law that the redactions in
the records may have related to grand jury proceedings which would require secrecy. Although the
words "grand jury investigation" and the word "investigation" do appear in the redacted documents,
that is not sufficient evidence to compel a reasonable person to conclude that grand jury secrecy must
attach to those records or the redactions. There is nothing more on the record in this case to suggest
which, if any of the clients or records, specifically pertain to grand jury proceedings or how or why such
records must be secreted.
The Senate argues in its memorandum that the redactions were made because Section
708(b)(16) of the RTKL excepts from public disclosure "a record of an agency relating to or resulting in a
criminal investigation…" 65 P.S. §67.708(b)(16). Unfortunately, again, no facts have been offered into
evidence at all to support such a finding. The only evidence in this proceeding are copies of the various
redacted documents given to Requester. On the face of these redacted documents, it is impossible to
conclude that these records have anything at all to do with a criminal investigation.
Finally, the Senate has argued that the redactions were necessary because the information is
protected by the attorney-work product doctrine. This doctrine "is designed to shelter the mental
processes of an attorney, providing a privileged area within which he can analyze and prepare his
client's case." Birth Center v. St. Paul Cos., 727 A.2d 1144 at 1165 (Pa. Super. 1999). It is hard to discern
how this doctrine could serve to protect client identity or the purpose or reason a client has engaged an
attorney. However, it is not necessary to do so because no factual evidence has been offered in this
proceeding to support such a finding.
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Appeal of Levy
Senate
Note
1. The Chief Clerk of the Senate also serves at the Open Records Officer for the Senate. 104 Pa.
Code §7.1
10-20
Department of Conservation and Natural Resources v. Office of Open Records
Commonwealth Court of Pennsylvania
995 A.2d 906
May 24, 2010
Reporter's summary: The Commonwealth Court consolidated three cases involving the
accessibility of certified payroll records of third party contractors working on public projects for the
Commonwealth. Commonwealth agencies had copies of the certified payroll records at issue. The
Commonwealth Court ruled that although the certified payroll records are considered financial records
and therefore publicly accessible, certain information, such as names or addresses of employees, may be
redacted under the personal financial information exception in section 708 of the Right-to-Know Law.
Headnotes:
Legislative intent – The new Right-to-Know Law utilizes the same "account, voucher or contract"
language as the old law did. This means that prior interpretations of that language were
intended to be applicable in the new law. The court uses Sapp Roofing Company, Inc. v. Sheet
Metal Workers' International Association, 552 Pa. 105, 713 A.2d 627 (1998) as precedent for the
interpretation of this phrase.
Legislative intent – By limiting the exception in section 708(b)(6)(ii) to public officials and agency
employees, this exception would not apply to third party government contractors.
10c-1
Commonwealth Court
Department of Conservation and Natural Resources, of the Commonwealth of Pennsylvania, Petitioner
v. Office of Open Records, Respondent; Office of the Budget, Petitioner v. Office of Open Records,
Respondent; Department of General Services, Petitioner v. Office of Open Records, Respondent
COMMONWEALTH COURT OF PENNSYLVANIA
February 10, 2010, Argued
May 24, 2010, Decided
May 24, 2010, Filed
OPINION BY JUDGE BROBSON
I. INTRODUCTION
In these consolidated appeals, n1 three Commonwealth agencies--the Office of the Budget (Budget), the
Department of Conservation and Natural Resources (DCNR), and the Department of General Services
(DGS) (collectively, Agencies)--seek our review of separate but related decisions by the Office of Open
Records (Open Records) pursuant to our statutory jurisdiction under the Right-to-Know Law (RTKL)1.
The records at issue are certified payroll records of third-party contractors who entered into contracts
with the Commonwealth of Pennsylvania for public projects. The certified payroll records of these nongovernmental employers contain information relating to each of the contractors' employees who
worked on the particular public project, such as each employee's name, social security number, home
address, hourly rate of pay, gross amount of wages earned, number of hours worked, amount deducted
from gross pay for taxes and/or benefits, and net pay2. In response to RTKL requests for copies of these
certified payroll records, the Agencies produced only redacted versions of the certified payrolls. The
requesters challenged the Agencies' productions, and Open Records appeals officers directed the
Agencies to release un-redacted copies of the certified payroll records.
Having reviewed the record in these consolidated appeals as a whole, and based on the findings of fact
and conclusions of law set forth below, we reverse the final determinations of the Open Records appeals
officers.
II. FACTS AND PROCEDURAL POSTURE
A. DCNR v. Office of Open Records (Gribbin)
On April 17, 2009, Thomas M. Gribbin, Sr. (Gribbin) requested3 the release of all certified payroll records
submitted by contractor Marion Hill Associates, Inc. and all subcontractors that had been working on a
construction project identified in Gribbin's request as "Marina Dock Rehabilitation." DCNR responded by
letter dated April 24, 2009, enclosing redacted copies of the requested records. DCNR redacted the
10c-2
Commonwealth Court
Social Security numbers and home addresses of the contractors' employees, taking the position that this
information was exempt under the RTKL. The letter further informed Gribbin that he had a right to
appeal the response to Open Records because of the redactions.
On April 27, 2009, Gribbin sent a letter to Open Records, identical to his original request for documents.
By a second letter to Open Records dated April 28, 2009, Gribbin indicated that he wished to appeal
DCNR's April 24th decision to produce only redacted copies of the certified payroll records4. Open
Records sent a letter to Gribbin and DCNR on May 1, 2009, describing the process Open Records uses to
evaluate appeals, including proceedings before appeals officers, who, according to the letter, may or
may not conduct a hearing on the appeal.
Open Records assigned an appeals officer to decide Gribbin's appeal. Following various e-mail
correspondence, DCNR submitted a brief in support of its denial of the requested information. In its
cover letter accompanying the brief, DCNR asked the appeals officer to conduct a hearing to allow DCNR
to present evidence of the potential personal harm that would result if Open Records required DCNR to
release the information. The appeals officer denied the request by e-mail dated May 28, 2009.
In its brief to Open Records, DCNR argued that home addresses do not constitute records under the
RTKL because they are (1) exempt under Section 708(b)(1)(ii) of the RTKL5 (records the disclosure of
which "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to
the personal security of an individual") and Section 708(b)(6)(i)(A)6 (personal identification information .
. . "[a] record containing all or part of a person's Social Security number, driver's license number,
personal financial information, home, cellular or personal telephone numbers, personal e-mail
addresses, employee number or other confidential personal identification number") and (2) they are
exempt under the RTKL because the RTKL exempts any information that is exempt under federal or state
law, regulation, or judicial decree (under the theory that an individual has a constitutional right to
privacy). Around the time DCNR submitted its brief, the contractor that was performing the subject
construction sought to intervene.
The Open Records appeals officer issued a Final Determination on June 1, 2009, granting Gribbin's open
records appeal and permitting him access to the home addresses of the contractor's employees whose
wage information was included on the certified payroll records. The appeals officer referred to earlier
decisions of Open Records that had specifically held that addresses were not the subject of any
exemption in the RTKL under Section 708(b)(6) because that provision, which defines "personal
identification information," specifically exempts only the home addresses of individuals such as law
enforcement officers and judges. Also, with regard to Section 708(b)(1) of the RTKL, the appeals officer
indicated that DCNR did not meet its burden of proof regarding the substantial/demonstrable risk of
harm7.
DCNR and the intervenor third-party contractor appealed the Open Records appeals officer's
Determination, raising the same issues noted above.
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B. Budget v. Open Records
(Malley/Leet/Sheet Metal Workers' Union)
On March 2, 2009, Shaun Leet, a representative of Sheet Metal Workers' Local 12 (Leet or Union, as
appropriate), sent a RTKL request to the open records officer of Budget, requesting copies of the
certified payroll of a roofing contractor--Burns & Scalo Roofing--that had performed services on a
construction project for the Fred Rogers Center and Business Conference Center. The request also
sought the same information for any roofing subcontractors. Budget's open records officer responded to
Leet's request by letter dated March 12, 2009, indicating that Budget would use the RTKL's extension
provision, whereby an agency may take longer than the usual statutory period to provide copies when
redaction is necessary. By letter dated April 13, 2009, Budget's open records officer produced a compact
disc (CD-Rom) with two .pdf files consisting of 180 pages of information responsive to Leet's request.
Budget, however, redacted from its production the following information: (1) Social Security numbers,
(2) signatures, (3) names, (4) addresses, and (5) W-4 tax exemption information.
By letter dated April 24, 2009, Kevin Malley (Malley) and Leet, on behalf of the Union, filed an appeal
with Open Records, challenging the redaction by Budget of the contractors' employees' names. Open
Records sent a letter to Budget, Malley, and Leet on April 27, 2009, describing [*9] the appeal process.
Appeals officer Audrey Buglione sent Budget a letter dated April 29, 2009, alerting it to the fact that
Open Records had issued earlier determinations in unrelated cases which held that names are not
exempt information and directing him, among other things, to inform Open Records of the legal and
factual basis for redacting the names.
Budget submitted to the appeals officer a memorandum of law with affidavits. Budget's first argument
was that its redaction of names was appropriate. Budget apparently presumed that the Union was
interested in knowing whether the contractor was paying prevailing wage8 to the employees. Budget
apparently reasoned that, by supplying the specific wage information about unidentified employees, the
Union could determine whether the contractor was in compliance with the PWA. Budget further
reasoned that if it included the names, then it would be releasing "personal financial information,"
which is exempted under the RTKL. The rationale apparently was that the information is not personal
financial information unless a name is attached to it.
Budget also argued that the release of names and addresses violated an individual's right to privacy, and
that this right, when balanced against the public interest recognized in the RTKL, weighed in favor of the
individuals' right to privacy.
In her May 26, 2009 Final Determination, the Open Records appeals officer, relying upon several prior
Open Records decisions, rejected Budget's arguments, particularly the argument that there is a right to
privacy that outweighs the public's interest under the RTKL. Open Records, however, did not directly
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address the idea that, under the personal identification information exception, Section 708(b)(6)(i)(A) of
the RTKL, which includes "personal financial information," the certified payroll documents are exempt-i.e., are not "public records." The appeals officer granted the appeal and directed Budget to produce the
certified payroll records without the names redacted.
C. DGS v. Open Records (Agre)
Louis Agre (Agre), an attorney apparently representing the International Union of Operating Engineers,
Local 542, sent a request under the RTKL via e-mail to DGS on April 2, 2009. Agre was seeking certified
payroll information regarding a company called Out of Site Infrastructure, which apparently performed
demolition, excavation, and other work at a construction site at Cheyney University.
DGS's open records officer responded with copies of certified payroll with names, addresses, Social
Security numbers, and telephone numbers redacted. He also noted the right to appeal the adequacy of
DGS's response to Open Records. In its letter enclosing the redacted documents, DGS's open records
officer reasoned that the redactions were appropriate because the information was protected from
disclosure under the RTKL's personal financial information exemption (citing Section 708(b)(6)), under
the RTKL's investigation exemption (citing Section 708(b)(17)), and under the right to privacy guaranteed
by Article I, Sections 1 and 8 of the Pennsylvania Constitution.
Agre filed an appeal, which Open Records received on May 7, 2009, challenging DGS's redaction of
names and addresses. Open Records responded, as it did in the other cases, with a letter acknowledging
the appeal and indicating that an appeals officer may conduct a hearing. Open Records assigned
Nathaniel J. Byerly, Esquire, as appeals officer for the appeal, and he requested that DGS provide
support for its position that the redactions were appropriate. On May 27, 2009, Open Records received
DGS's "Response." In this forty-eight page document, DGS commented that it strongly believed that
Open Records' current legal analysis regarding the constitutional right to privacy was "deeply flawed."
Specifically, DGS asserted that (1) the redaction was appropriate in order to avoid the release of
personal financial information; (2) the certified payrolls constitute investigatory documents because
they are collected as part of an official inquiry into whether contractors are complying with the
Prevailing Wage Act, and, consequently, they are exempt as noncriminal investigative records under
Section 708(b)(17) of the RTKL; and (3) release of the names and addresses would violate a
constitutional right to privacy. This response also included numerous documents, such as letters and
affidavits from persons involved with such matters as law enforcement and technology, indicating
problems that could arise through the disclosure of names and addresses9.
The Open Records appeals officer issued his Final Determination on August 5, 2009, granting Agre's
appeal and directing DGS to release the names and addresses that had been redacted from the certified
payroll records. In general, the appeals officer indicated that he was relying upon Open Records' earlier
decisions, rejecting statutory exemption and constitutional right to privacy arguments. Specifically, the
appeals officer first addressed the personal financial information exemption argument. DGS had relied
on a Pennsylvania Supreme Court decision, Sapp Roofing Company, Inc. v. Sheet Metal Workers'
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International Association, 552 Pa. 105, 713 A.2d 627 (1998) (plurality). In Sapp Roofing, our Supreme
Court referred to a decision by the United States Court of Appeals for the Second Circuit, arising under
the Federal Freedom of Information Act10 (FOIA), which recognized the significant interest private
employees have in avoiding the disclosure of their names and addresses when associated with financial
information. The appeals officer, however, rejected DGS's argument, noting that Sapp Roofing was only
a plurality opinion that did not expressly adopt the federal court's reasoning. Further, the appeals officer
concluded that the term "personal financial information" could not be interpreted to include names and
addresses.
The appeals officer also rejected DGS's argument that the certified payroll records involved noncriminal
investigative information. The appeals officer noted that DGS offered no factual support detailing what
is involved under the PWA to support the contention that the contractor submits the payroll documents
as part of an investigation such as would render the documents noncriminal investigative records;
however, the appeals officer never provided an opportunity for a hearing.
With regard to the issue of whether a constitutional right to privacy precludes release of names and
addresses associated with the payroll records, the appeals officer concluded that no case law supported
DGS's argument of such a right. Finally, the appeals officer rejected DGS's argument that Open Records
should engage in a balancing test similar to one employed by federal entities under the FOIA, because
FOIA has a specific provision requiring such balancing, whereas the RTKL contains no similar provision.
III. ISSUES FOR REVIEW/STANDARD OF REVIEW
The Agencies raise the following issues in their joint brief: (1) whether individuals have a constitutionally
protected privacy interest in their names and addresses such that Open Records must balance that
interest against the public interest in such information before Open Records may disclose such
information; (2) whether the asserted privacy interest outweighs the public interest, where, as the
Agencies contend here, the parties seeking the information have not asserted such public interest; and
(3) whether the Agencies properly redacted the names and addresses from the disclosed certified
payroll records under the personal security exemption and/or the personal financial information
exemption in the RTKL, such that the otherwise relevant financial information they provided to the
requesting parties satisfied the requirements of the RTKL.
This Court's review of final determinations by Open Records is governed by Section 1301(a) of the RTKL,
which provides in pertinent part as follows:
Within 30 days of the mailing date of the final determination … a requester or the agency may file a
petition for review or other document as might be required by rule of court with the Commonwealth
Court. The decision of the court shall contain findings of fact and conclusions of law based upon the
evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.65 P.S.
§ 67.1301(a). In this Court's recent en banc decision in Bowling v. Office of Open Records, 990 A.2d 813,
818 (Pa. Cmwlth. 2010), we held that our standard of review of Open Records orders is as follows. "[A]
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reviewing court, in its appellate jurisdiction, independently reviews [Open Records'] orders and may
substitute its own findings of fact for that of the agency." The Court opined that it could apply the
broadest scope of review and look to information beyond the contents of the record to be reviewed as
described in the RTKL--i.e., the request, the response, the requester's exceptions to the response,
hearing transcript (if any), and the final determination. In other words, the Court can accept additional
evidence and make its own factual findings.
IV. DISCUSSION
In this appeal, the Agencies and Open Records have largely focused on the question of whether a
constitutional right to privacy protects from release the names and/or addresses of individuals identified
on the certified payroll records. This Court, however, is guided by the notion that, whenever possible, a
court should refrain from deciding constitutional issues when it can resolve a dispute on a statutory
basis. Pottstown Sch. Dist. v. Hill School, 786 A.2d 312 (Pa. Cmwlth. 2001). Because we believe this
appeal can be disposed of on statutory grounds, we will not address the parties' constitutional
arguments.
A. The Certified Payroll Records Are "Records"
The parties do not dispute that the certified payroll records meet the definition of a "record" under the
RTKL. The definition of "record" in the RTKL is broad enough to encompass a hard or electronicallystored document in an agency's possession, as well as information stored or maintained by an agency
but that is not necessarily part of a specific document11. Here, we are dealing with "records" that are
documents--certified payroll records submitted to the Agencies by third-party contractors. In each case,
Budget, DGS, and DCNR produced the records in response to RTKL requests, but redacted certain
identifying information about the contractors' employees. At issue in these appeals is the propriety of
the Agencies' decision to redact the names and/or addresses of the contractors' employees in the copies
of the certified payroll records provided to the requesters.
B. The Certified Payroll Records Include "Personal Financial Information"
The Agencies, collectively, have identified three statutory exemptions to support their decision to redact
the certified payroll records in this case: (1) the personal security exemption--Section 708(b)(1)(ii) of the
RTKL; (2) the personal financial information exemption--Section 708(b)(6)(i)(A) of the RTKL; and (3) the
investigation exemption--Section 708(b)(17) of the RTKL. For the reasons that follow, we find that the
certified payroll records include information that falls within the personal financial information
exemption12.
In context, the personal financial information exemption is a component part of a three-part broader
exemption for "personal identification information." Section 708 of the RTKL provides, in relevant part:
(b) Exceptions.--Except as provided in subsections (c) and (d), the following are exempt from access by a
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requester under this act:
....
(6)(i) The following personal identification information:
(A) A record containing all or part of a person's Social Security number, driver's license number, personal
financial information, home, cellular or personal telephone numbers, personal e-mail addresses,
employee number or other confidential personal identification number.
(B) A spouse's name, marital status or beneficiary or dependent information.
(C) The home address of a law enforcement officer or judge.
(ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual
compensation or other payments or expenses, employment contract, employment-related contract or
agreement and length of service of a public official or an agency employee.Id. § 67.708(b)(6) (emphasis
added). As written by the General Assembly, the "personal identification information" exemption is
actually three separate exemptions set forth in clauses (A), (B), and (C) of Section 708(b)(6)(i) of the
RTKL. The "personal financial information" exemption is found in clause (A).
The RTKL defines "personal financial information" to include: An individual's personal credit, charge or
debit card information; bank account information; bank, credit or financial statements; account or PIN
numbers and other information relating to an individual's personal finances.Id. § 67.102 (emphasis
added). Though certified payroll records do not fall within one of the specific categories of documents
listed in this definition, we must determine whether they constitute "other information relating to an
individual's personal finances."
With no further guidance from the statutory definitions in the RTKL, we are guided by rules of statutory
construction, which instruct us to construe words according to their common usage. See 1 Pa. C.S. §
1903(a). The word "finance" and its variant "finances" have broad meanings. "Finance" has been defined
as "money resources, income, etc." Webster's New World Dictionary and Thesaurus 240 (2nd ed. 2002).
"Finances" has been defined as "the pecuniary affairs or resources of a state, company, or individual."
Webster's Third New Int'l Dictionary (Unabridged) 851 (1993) (emphasis added). Though we could
include additional dictionary support, these two alone clearly support a conclusion that an individual's
wages and wage-related information, such as that included in the certified payroll records at issue in
these consolidated appeals, represent "money resources, income" and go to "the pecuniary affairs" of
an individual. Because this information relates to an individual's personal finances, the information
contained in the certified payroll records falls within the statutory definition of "personal financial
information13."
We find further support for this conclusion in subparagraph (ii) of Section 708(b)(6), wherein the
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General Assembly specifically carved out an exception to exemption in subparagraph (i):
Nothing in this paragraph [6] shall preclude the release of the name, position, salary, actual
compensation or other payments or expenses, employment contract, employment-related contract or
agreement and length of service of a public official or agency employee.Id. § 67.708(b)(6)(ii) (emphasis
added). Because of the exemption for documents containing personal financial information in clause (A)
of subparagraph 6, the General Assembly apparently felt that this exception was necessary to ensure
that wage and salary information for public officials and agency employees was available to requesters
under the RTKL. The language limiting this carve-out exception to only public officials and agency
employees evidences the General Assembly's intent, or at the very least recognition, that the personal
financial information exemption in Section 708(b)(6)(i)(A) of the RTKL exempts wage and wage-related
information for individuals who are not public officials or agency employees. To conclude otherwise
would essentially render the carve-out exception for public officials and agency employees unnecessary
and mere surplusage--a construction we must avoid. See 1 Pa. C.S. §§ 1922(2) (presumption that "the
General Assembly intends the entire statute to be effective and certain"); 1932(b) ("Statutes in pari
materia shall be construed together, if possible, as one statute."); Concerned Citizens for Better Schs. v.
Brownsville Area Sch. Dist., 660 A.2d 668, 671 (Pa. Cmwlth. 1995) ("[W]henever possible, the courts
must interpret statutes to give meaning to all of their words and phrases so that none are rendered
mere surplusage.").
C. The Personal Financial Information Exemption Does Not Apply
Section 708(b)(6)(i)(A) of the RTKL, as quoted above, exempts "personal identification information,"
which includes "[a] record containing . . . personal financial information." 65 P.S. § 67.708(b)(6)(i)(A)
(emphasis added). Thus, any record that contains "personal financial information" is exempt from access
by a requester under the RTKL14. See id.; see also id. §§ 67.102 (defining "public records" to exclude
records that are exempt under Section 708), .301 (requiring agencies to provide access to "public
records").
If this were the end of the analysis, we would be compelled to conclude that the certified payroll records
at issue in this case are exempt from disclosure in their entirety15. But in applying any of the exemptions
set forth in Section 708(b), we must consider subsection (c), which provides:
Financial records.--The exceptions set forth in subsection (b) shall not apply to financial records, except
that an agency may redact that portion of a financial record protected under subsection (b)(1), (2), (3),
(4), (5), (6), (16) or (17). An agency shall not disclose the identity of an individual performing an
undercover or covert law enforcement activity. Id. § 67.708(c). Pursuant to this provision of the RTKL, if
a public record is a "financial record," many of the exemptions in subsection (b) do not apply. The RTKL
defines a "financial record" as any of the following:
(1) Any account, voucher or contract dealing with:
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(i) the receipt or disbursement of funds by an agency; or
(ii) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property.
(2) The salary or other payments or expenses paid to an officer or employee of an agency, including the
name and title of the officer or employee.
(3) A financial audit report. The term does not include work papers underlying an audit.Id. § 67.102.
Due to precedent from the Pennsylvania Supreme Court, we are constrained to conclude that the
certified payroll records in this case are "financial records" under the RTKL. In Sapp Roofing, a private
contractor sought to enjoin a labor union from the right to access a contractor's payroll records in the
possession of a school district. The trial court denied the injunction, and, in an unreported decision, a
three-judge panel of this Court affirmed. On appeal, a divided Supreme Court took up the question of
whether the contractor's payroll records were open for inspection under the old Right-to-Know Law
("Old Law")16. The payroll records at issue in Sapp Roofing included information similar to the certified
payroll records at issue here--i.e., employee names and addresses, social security numbers, job
positions, rates of pay, etc.
Justice (now Chief Justice) Castille, writing the lead opinion, found that the payroll records fell within the
definition of "public records" under the Old Law. He relied on the following language in the definition:
"'Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its
acquisition, use or disposal of services or of supplies, materials, equipment or other property . . . .'" Sapp
Roofing, 552 Pa. at 108, 713 A.2d at 628 (quoting Section 1 of the Old Law). Justice Castille reasoned:
"[T]he payroll records are public records because they are records evidencing a disbursement by the
school district." Id., 552 Pa. at 109, 713 A.2d at 629 (emphasis added).
Sapp Roofing gained precedential force months later when our Supreme Court further examined the
account/vouchers/contracts category of the definition of "public records" under the Old Law and cited
Sapp Roofing with favor:
The first of these categories deals generally with fiscal aspects of governance, providing for public
review of accounts, vouchers or contracts "dealing with" receipts of and disbursements by an agency.
This Court's decision in [Sapp Roofing] concerned the accounts/vouchers/contracts category of public
records. . . .
. . . Implicit in the Court's decision in Sapp Roofing is the conclusion that the
accounts/vouchers/contracts category of public records reaches some range of records beyond those
which on their face constitute actual accounts, vouchers or contracts. Nevertheless, it is clear from Sapp
Roofing that, to constitute a public record, the material at issue must bear a sufficient connection to
fiscally related accounts, vouchers or contracts. North Hills News Record v. McCandless, 555 Pa. 51, 55,
722 A.2d 1037, 1038-39 (1999); see also LaValle v. Office of Gen. Counsel, 737 A.2d 330, 332 n.5 (Pa.
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Cmwlth. 1999) ("Although the decision in Sapp Roofing was a plurality decision, we note that the full
Supreme Court in North Hills cited favorably to the reasoning employed in Sapp."), aff'd, 564 Pa. 482,
769 A.2d 449 (2001). In LaValle, the Supreme Court summarized the impact of Sapp Roofing and
McCandless:
These decisions establish that the Act reaches some class of materials that are not facially accounts,
vouchers, contracts, minutes, orders or decisions. The general constraint upon this expanded class that
became relevant in McCandless was that the party seeking to inspect government records must
establish some close connection between one of the statutory categories and the materials sought.
LaValle v. Office of Gen. Counsel, 564 Pa. 482, 493, 769 A.2d 449, 456 (2001).
These decisions from our Supreme Court and this Court examining the account/voucher/contract
portion of the definition of "public record" under the Old Law are relevant because in crafting the new
RTKL, the General Assembly essentially lifted this component of the old definition of "public record" and
used it to define a new term--"financial record"--in the RTKL. The language in the two definitions is
virtually identical17. Faced with a prior judicial interpretation in Sapp Roofing 18 by a majority of the
Justices on the Pennsylvania Supreme Court of the account/voucher/contract language in the RTKL,
even though issued in the context of the Old Law, we are not at liberty here to ascribe a different
meaning to the same language. See Nunez v. Redevelopment Auth. of Phila., 147 Pa. Commw. 577, 609
A.2d 207, 209 (Pa. Cmwlth. 1992) ("[A]s an intermediate appellate court, we are bound by the opinions
of the Supreme Court.")
Applying the Supreme Court's expansive reading of the account/voucher/contract language, the
certified payroll records, in an indirect sense, are records that deal with or evidence the
Commonwealth's dealings with these third-party contractors on public projects and the
Commonwealth's disbursement of funds related to those public contracts. Unless and until the Supreme
Court interprets the statutory language otherwise19, we are constrained to conclude that the certified
payroll records fall within the account/voucher/contract class of documents that under the Old Law
were "public records" and under the new law are now "financial records." The exemptions in Section
708(b) of the RTKL from disclosure thus do not apply to the certified payroll records in this case. 65 P.S.
§ 67.708(c)20.
D. The Agencies' Acted Within Their Discretion In Redacting the Certified Payroll Record
Though the exemptions in subsection (b) of Section 708 of the RTKL do not apply to financial records,
such as the certified payroll records here, subsection (c) nonetheless provides that an agency "may
redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (6), (16) or
(17)." Id. Here, the Agencies produced redacted copies of the certified payroll records. Open Records
held that the Agencies erred in redacting the names and/or home addresses of the third-party
contractors' employees in those records. We find no error in the Agencies' decisions to exercise
discretion afforded to them under the RTKL and to release the certified payroll records as redacted.
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In its brief to the Open Records appeals officer, DCNR explained its reasons for redacting the home
addresses as follows:
The certified payrolls that are the subject of the instant RTKL request contain the name of the employer
and the name, address, job classification, hourly rate of pay, number of hours worked during the
reporting period, wages and fringe benefits paid, and deductions made for each listed employee. These
employees are not agency employees and there can be no question that this constitutes personal
financial information. However, in order to provide information that may be useful to monitor
compliance with the [PWA], portions of the information have been supplied, but not the home address.
When coupled with the other information in the payroll records concerning their wages and employment,
the home addresses of employees constitute "other information relating to an individual's personal
finances" and should therefore be exempt from disclosure under section 708(b)(6)(i)(A).(R.R. at 9a
(emphasis added).) This reasoning is persuasive and can be applied with equal force to Budget's and
DGS's decisions to redact the names and addresses of the third-party contractors' employees-nongovernmental employees--from the certified payroll records. The financial information contained in
the certified payroll records is only personal to the individual employees so long as the identity of the
employees is attached to the information. Redaction of the names and/or addresses renders what was
personal financial information, impersonal. The Agencies thus acted reasonably and within the bounds
of their discretion by producing the certified payroll records in redacted form to protect the personal
nature of the financial information contained in those records21.
V. CONCLUSION
Based on undisputed facts of record and for the reasons set forth above22, we reach the following
conclusions of law:
1. The certified payroll records at issue in these consolidated appeals are public records under the RTKL.
2. Because the certified payroll records are also financial records under the RTKL, none of the
exemptions from access in Section 708(b) of the RTKL apply to the certified payroll records.
3. The Agencies did not abuse their discretion under Section 708(c) of the RTKL in redacting from the
certified payroll records the names and/or addresses of the contractor's employees to shield the
personal nature of the financial information in the certified payroll records, which is protected under
Section 708(b)(6)(i)(A).
We thus reverse the final determinations and orders of Open Records.
P. KEVIN BROBSON, Judge
Judge Cohn Jubelirer concurs in the result only.
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Notes:
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - .3104. Open Records operates under the
RTKL. One of Open Record's duties under the RTKL is to assign appeals officers to review, when
challenged, decisions by Commonwealth agencies in response to RTKL requests and issue orders
and opinions on those challenges. See Section 1310 of the RTKL, 65 P.S. § 67.1310. Section
1301(a) of the RTKL authorizes an agency of the Commonwealth to file a petition for review with
this Court from a final determination by an Open Records appeals officer. Id. § 67.1301(a).
2. The third-party contractors apparently submitted the certified payrolls to the Agencies to prove
their compliance with the Pennsylvania Prevailing Wage Act, Act of August 15, 1961, P.L. 987, as
amended, 43 P.S. §§ 165-1 to -17 (PWA). We find nothing, however, in the PWA that requires
private contractors to submit to the Agencies the level of detail contained in the certified payroll
records in this case. See Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, 552 Pa. 105, 713
A.2d 627 (1998) (Zappalla, J., concurring).
3. Gribbin made his request in writing addressed to Scott Schaffer, Project Engineer of Western
Engineering. It is apparent from the record, however, that this written request made its way to
DCNR.
4. It appears from the record that Gribbin did not challenge DCNR's decision to redact the
employees' Social Security numbers from the certified payroll records; rather, his challenge was
to the decision to redact home addresses.
5. 65 P.S. § 67.708(b)(1)(ii).
6. 65 P.S. § 67.708(b)(6)(i)(A).
7. We find this decision by the Open Records appeals officer peculiar in light of her decision to
deny DCNR's request for an evidentiary hearing to present evidence of harm.
8. As set forth in Budget's memorandum of law submitted to Open Records, under the PWA, which
relates to wages required to be paid to workers on construction projects for the Commonwealth
and its political subdivisions, employers must pay the wage determined by the Secretary of
Labor to be appropriate for a given class of worker.
9. Neither DCNR nor Budget appears to have submitted similar documents in their filing with Open
Records.
10. 5 U.S.C. § 552.
11. "Record" is defined as follows:
Information, regardless of physical form or characteristics, that documents a transaction or
activity of any agency and that is created, received or retained pursuant to law or in connection
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with a transaction, business or activity of the agency. The term includes a document, paper,
letter, map, book, tape, photograph, film or sound recording, information stored or maintained
electronically and a data-processed or image-processed document. Section 102 of the RTKL, 65
P.S. § 67.102.
12. Accordingly, we will not address whether the records fall within the other exemptions claimed
by the Agencies.
13. Notwithstanding dictionary support, we are confident that our decision to construe "personal
financial information" to include wage and wage-related information for individuals, such as
that included in the certified payroll records, is consistent with the common usage and
understanding of the phrase. Indeed, we are hard-pressed to fathom a piece of financial
information that is more personal to the citizens of this Commonwealth--particularly those in
the private sector--than how much they earn on a gross basis, how much is deducted from their
paychecks for taxes and other withholdings, and their take-home pay.
14. Contrast the exemption in clause (A) of Section 708(b)(6)(i) of the RTKL with the exemptions in
clauses (B) and (C). In the latter two, the phrase "a record containing" does not precede the
exempt information. Thus, unlike the exemption in clause (A), which exempts the entire record
if it contains the exempt information, the exemptions in clauses (B) and (C) exempt only the
information in what may otherwise be a "public record" that must be disclosed, albeit in
redacted form. See 65 P.S. § 67.706 (Redaction).
15. Had we concluded that the certified payroll records were records that were exempt from access,
the agencies, nevertheless, would have had the discretion to release the records with redaction.
Section 506(c) of the RTKL, 65 P.S. § 67.506(c), provides agencies with the discretionary power
"to make any otherwise exempt record accessible for inspection and copying." The RTKL
prohibits such discretionary disclosure only if disclosure is prohibited by state or federal law or
regulation, judicial order or decree, or the record is protected by a privilege. When no such
prohibition exists, the "agency head" may provide for disclosure (and presumably partial
disclosure) if he or she "determines that the public interest favoring access outweighs any
individual, agency or public interest that may favor restriction of access." An agency, therefore,
in its discretion may release certain records or parts of records where none of the above-noted
prohibitions bar release and where the head of the agency concludes that the public interest
outweighs a public interest in access restriction.
16. Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1-.9 (repealed 2008).
17. In preserving the account/voucher/contract language in the new law, the General Assembly is
presumed to concur in the judicial interpretations placed on that language. See Buehl v. Horn,
728 A.2d 973, 980 (Pa. Cmwlth. 1999).
18. Chief Justice Flaherty joined Justice Castille in the lead opinion, with Justice Zappalla filing a
separate concurring opinion only to point out that nothing in the PWA required the contractor
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to submit to the school district the payroll records in question. Accordingly, three out of the five
justices who considered the case expressly concluded that the payroll records in Sapp Roofing
were public records. Justice Nigro concurred only in the result and did not write a separate
opinion. But seeing as he concurred in the result--i.e., that the unions should have access to the
payroll records (in redacted form) under the Old Law, we must presume that he also concluded
that the documents were public records. Thus, although Sapp Roofing is often described as a
plurality decision, a strong majority of the justices in that case concluded that the payroll
records were "public records" under the Old Law and thus affirmed the unpublished, unanimous
panel opinion from this Court. Only Justice Cappy dissented, noting that he believed that the
records were not "public records" under the Old Law. No other justices participated in the
decision in Sapp Roofing.
19. Unlike Sapp Roofing, in this case the contractors affected by the agencies' disclosure of the
certified payroll records are not before the Court to argue their interests or that of their
employees in ensuring that the personal financial information of these nongovernmental
employees be exempt from RTKL requests. Moreover, none of the parties before the Court in
these consolidated appeals have pressed us to conclude, contrary to Sapp Roofing, that the
certified payroll records are not "financial records" under the RTKL. Accordingly, while the
opportunity may come for the Supreme Court to revisit its broad interpretation of the
account/voucher/contract language, these consolidated appeals do not appear to present that
opportunity
20. Though we do not address in this opinion specifically the Agencies' claim that the exemptions in
Sections 708(b)(1) and (b)(17) of the RTKL also support their decision to redact the certified
payrolls, we would find that those exemptions also do not apply by virtue of Section 708(c) of
the RTKL for the reason set forth above.
21. Our holding in this case is limited to the public records at issue in these consolidated appeals-i.e., certified payroll records of private employers doing business with Commonwealth agencies-and the propriety of the Agencies' redactions to protect the personal financial information of
private citizens. Our holding should not be construed as a recognition (or rejection) of an
exemption under the RTKL for names and/or addresses generally when such information is in
the possession of a Commonwealth or local agency.
22. Although we agree with Open Records' comment that an agency seeking to deny access to a
record has the burden to prove by a preponderance of the evidence that the record is exempt,
Section 708(a)(1) of the RTKL (65 P.S. § 67.708(a)(1)), the question presented and resolved
above is one of law. The Agencies, by providing copies of the redacted certified payroll records
or by describing the contents and the redactions, provided the only evidence that was necessary
for the Court to address the overarching legal issues in this case--namely, whether the
documents were accessible under the RTKL and, if so, whether the Agencies erred in producing
only redacted copies.
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990 A.2d 813
February 5, 2010
Reporter's summary: The Commonwealth Court considered an appeal based on redaction and
formatting of a document provided by PEMA. The court declined to rule on the formatting requirements
for documents provided under the Right-to-Know Law, but did rule on the redaction. The court found
that PEMA's redaction based on claimed homeland security issues was too broad and the court
remanded the appeal.
Headnotes:
Appeals process - Under the Right-to-Know Law, courts utilize a broad and independent review of the
decisions.
Note: This case was ultimately upheld in Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).
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Brian Bowling, Petitioner v. Office of Open Records, Respondent
990 A.2d 813; 2010 Pa. Commw.
December 9, 2009, Argued
February 5, 2010, Decided
February 5, 2010, Filed
OPINION BY JUDGE SIMPSON
This appeal from a Commonwealth administrative agency concerns the recently re-enacted Right-toKnow Law (Law). n1 Brian Bowling (Requester), an employee of the Pittsburgh Tribune-Review, petitions
for review from a final determination of the Office of Open Records (OOR)1 granting in part his request
for records of goods and services the Pennsylvania Emergency Management Agency (PEMA) purchased
with Department of Homeland Security (Homeland Security) grant funds. PEMA granted the right-toknow request but redacted the identities of the recipients of the goods and services purchased. It also
redacted records pertaining to the Buffer Zone Protection Program2. The OOR denied Requester's
appeal concluding PEMA properly withheld the recipients' names under Section § 708(b)(2) of the Law,
65 P.S. § 67.708(b)(2) (exemption from disclosure of public records pertaining to military, homeland
security, national defense, law enforcement, or public safety).
In this appeal, we address the manner of judicial review of an OOR determination as well as issues raised
in Requester's petition for review. Requester questions: whether documents disclosing the identities of
recipients of emergency response equipment purchased by PEMA are public records under the Law;
whether those documents are exempt from access on the basis their release would be reasonably likely
to jeopardize or threaten public safety or preparedness or public protection activity; and, whether
Requester is entitled to the information sought in a medium in which it exists. Concluding PEMA
redacted the records requested in a manner inconsistent with the Law, we reverse and remand to the
OOR with instructions for further remand to PEMA for refinement of the redactions.
I. The Right-to-Know Law
In 2008, the General Assembly passed the new Right-to-Know Law, which made sweeping changes to
access of government records. In addition to the issues raised on appeal, we are particularly concerned
with the Law's procedures for review of right-to-know determinations. The following is a brief overview
of the new procedures set forth in the Law.
Pursuant to Section 502 of the Law, each agency must designate an official or employee to act as an
open-records officer. 65 P.S. § 67.502. Among other duties, the designated individual issues the agency's
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final response to a request for public records. Id3. In denying a request in whole or in part, the openrecords officer must provide a written description of the record requested with specific reasons for the
denial. Section 903 of the Law, 65 P.S. § 67.903.
If the agency denies the request, or it is deemed denied, a requester may file an appeal with the OOR.
OOR assigns an appeals officer to review the decision of the agency's open-record's officer, and to issue
an order and opinion disposing of the appeal. Section 1310 of the Law, 65 P.S. § 67.1310. Notably, the
appeals officer may, in his or her discretion, conduct a hearing prior to issuing a final decision. Section
1101(b)(3) of the Law, 65 P.S. § 67.1101(b)(3). The appeals officer must provide a written explanation
for the decision. Id4.
Chapter 13 of the Law governs judicial review. If the appeals officer's final determination relates to a
decision of a Commonwealth, legislative or judicial agency, the requester or the agency may file a
petition for review with the Commonwealth Court. Section 1301(a) of the Law, 65 P.S. § 67.1301(a). If
the appeals officer's final determination relates to a decision of a local agency, the requester or the local
agency may file a petition for review with the court of common pleas for the county in which the agency
is located. Section 1302(a) of the Law, 65 P.S. § 67.1302(a). The court's decision on appeal "shall contain
findings of fact and conclusions of law based upon the evidence as a whole" and "clearly and concisely
explain the rationale for the decision." 65 P.S. §§ 67.1301(a) and 1302(a). The record on appeal consists
of the request, the agency's response, the appeal filed with the OOR, the hearing transcript, if any, and
the final written determination of the appeals officer. Section 1303(b) of the Law, 65 P.S. § 67.1303(b).
The current right-to-know request proceeded through the newly enacted procedure.
II. Facts
On January 2, 2009, Requester filed a written request with PEMA seeking all invoices and contracts for
first responder equipment and services which PEMA purchased with Homeland Security funds for fiscal
years 2005-08. Reproduced Record (R.R.) at 6a-7a. Over the next several days, Requester and PEMA's
Open-Records Officer clarified the request to mean "electronic spreadsheets maintained by PEMA
containing information regarding equipment procured for the nine (9) regional counterterrorism task
forces with 2005-08 Homeland Security grant funds." Id. at 8a.
PEMA granted the request and created a ".pdf" document of the invoices5. However, PEMA redacted
some information purportedly exempt from disclosure pursuant to Sections 708(b)(2) (relating to
military, homeland security, national defense, law enforcement, or public safety) and 708(b)(3)(ii) of the
Law (relating to safety or security of buildings, public utilities, resources, infrastructure, facilities, or
information storage systems). 65 P.S. §§ 67.708(b)(2), (b)(3)(ii).
PEMA first redacted the names of all recipients of the equipment procured as critical information that
reveals gaps, vulnerabilities and emergency response capabilities in the Commonwealth. R.R. at 8a.
PEMA explained disclosure of the recipients' names would be reasonably likely to jeopardize or threaten
public safety or preparedness or public protection activities. Id. PEMA also redacted information
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pertaining to the Buffer Zone Protection Program on the ground that the information discloses sites in
the Commonwealth designated as critical infrastructure. Id. PEMA explained that disclosure would be
reasonably likely to endanger the safety and/or physical security of a Program building, public utility,
resource, infrastructure, facility or information storage system. R.R. at 8a-9a6. As such, the redactions
constituted a partial denial of Requester's request.
Requester appealed to the OOR. First, Requester disputed PEMA's conclusion that disclosure of the
names of the recipients of goods purchased would show gaps, vulnerabilities and emergency response
capabilities in the Commonwealth. According to Requester, such documentation would show
fortification of the Commonwealth's emergency response capabilities. Second, although not disputing
non-disclosure of Buffer Zone Protection Program records, Requester asserted the redactions relating to
the Program must be more clearly identified to enable meaningful review of PEMA's redaction of the
names of the recipients of the goods and services purchased. Finally, Requester challenged the format
by which PEMA satisfied his request. PEMA provided Requester with a ".pdf" version of the records even
though it maintains the records in a Microsoft Excel spreadsheet.
The OOR Appeals Officer permitted PEMA and Requester to file memoranda in support of their
respective positions; however, the OOR Appeals Officer did not conduct a hearing. The OOR Appeals
Officer first determined PEMA did not violate the Law by providing Requester a ".pdf" file of the records.
OOR Dec., 4/17/09, at 9. The OOR Appeals Officer concluded that the Law authorizes inspection and
duplication of public records but does not require the records be provided in a manner subjecting them
to alteration or manipulation. Id.; see Section 701(b) of the Law, 65 P.S. § 67.701(b) ("[n]othing in this
act shall be construed to require access to any computer either of an agency or individual employee of
an agency.").
The OOR Appeals Officer further determined PEMA properly redacted information identifying the
recipients of goods and services procured through Homeland Security grants. PEMA persuaded the OOR
Appeals Officer there is a strong connection between knowing what entities receive emergency
equipment and a threat to public safety. According to the OOR Appeals Officer, PEMA provided
examples of how disclosure of the recipients' identities would expose vulnerabilities and gaps in
emergency preparedness and could point terrorists in the direction of high profile or weak targets7. OOR
Dec., 4/17/09, at 10.
Requester now appeals the OOR Appeals Officer's determination. PEMA appears as Intervenor8.
III. Preliminary Considerations
Before we reach the merits of Requester's appeal, we first resolve questions regarding the standard and
scope of judicial review of an OOR decision. Requester submits our standard of review is de novo where
the Law directs this Court to issue findings and conclusions based on the evidence as a whole. 65 P.S. §
67.1301(a). This is more in line with our original jurisdiction rather than with deferential appellate
review. Conversely, PEMA urges application of the traditional, three-pronged appellate standard of
review for administrative agency determinations: whether the record supports the findings of fact,
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whether errors of law were committed, or whether constitutional rights were violated.
In a detailed discussion, our Supreme Court clarified in Morrison v. Department of Public Welfare, Office
of Mental Health (Woodville State Hosp.), 538 Pa. 122, 131, 646 A.2d 565, 570 (1994), that "scope of
review" and "standard of review" refer to two distinct concepts and should not be confused.
Considering a motion for new trial, the Court explained:
"Scope of review" refers to "the confines within which an appellate court must conduct its
examination." Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 450, 625 A.2d 1181, 1186 (1993). In
other words, it refers to the matters (or "what") the appellate court is permitted to examine. In contrast,
"standard of review" refers to the manner in which (or "how") that examination is conducted. In Coker
we also referred to the standard of review as the "degree of scrutiny" that is to be applied. Id., 625 A.2d
at 1186.
For the following reasons, we conclude that a reviewing court, in its appellate jurisdiction,
independently reviews the OOR's orders and may substitute its own findings of fact for that of the
agency.
1. Initially, we examine the statutory language providing for judicial review. Section 1301(a) of the Law
provides that decisions of the reviewing court shall contain findings and conclusions based on the
evidence as a whole. 65 P.S. § 67.1301(a). This express duty of fact-finding is consistent with a standard
similar to de novo review.
Also, Section 1309 of the Law specifies that the provisions of 2 Pa. C.S. (relating to administrative law
and procedure) shall not apply unless specifically adopted by regulation or policy. 65 P.S. § 67.1309. As a
result, among the provisions which do not apply to the Law is Section 704 of the Administrative Agency
Law, 2 Pa. C.S. § 704 (disposition of appeal), which provides, with emphasis added:
The court shall hear the appeal without a jury on the record certified by the Commonwealth agency.
After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in
violation of the constitutional rights of the appellant, or is not in accordance with law, or that the
provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies)
have been violated in the proceedings before the agency, or that any finding of fact made by the agency
and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is
not affirmed, the court may enter any order authorized by 42 Pa. C.S. § 706 (relating to disposition of
appeals).Thus, the Law commands that the usual deferential standard of review on appeal from
Commonwealth agencies, such as the OOR, does not apply.
2. Next, we seek guidance from the Freedom of Information Act (FOIA), the federal counterpart to our
Law. See 5 U.S.C. § 552. The FOIA provides a two-step process for obtaining public records of federal
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government agencies. Like local and Commonwealth agencies, each federal agency is required to
designate a Chief FOIA Officer who is responsible for compliance with the FOIA. 5 U.S.C. § 552(j-l). In the
event an agency withholds the records requested, the appropriate district court may order production
of records improperly withheld. 5 U.S.C. § 552(a)(4)(B). Upon review, the district court "shall determine
the matter de novo, and may examine the contents of such agency records in camera to determine
whether such records or any part therefore shall be withheld under any of the [applicable exemptions]
…." Id. See also Vaughn v. Rosen, 484 F.2d 820, 823, 157 U.S. App. D.C. 340 (D.C. Cir. 1973) ("when the
[g]overnment declines to disclose a document the burden is upon the agency to prove de novo in trial
court that the information sought fits under one of the exemptions to the FOIA").
3. We also look for guidance to similar, if not identical, appeal procedures which involve independent
review and fact-finding. This Court, in its appellate jurisdiction, conducts fact-finding when reviewing
decisions of the Board of Finance and Review (F&R Board). See Pa. R.A.P. 1571. There is similarity
between the Appellate Rule governing review of F&R Board determinations and the Law's appeal
procedures.
Appellate Rule 1571 sets forth the procedures for appellate review. Particularly helpful here are
subsections (f) and (h). The F&R Board does not certify a record to the Court. Pa. R.A.P. 1571(f); Tool
Sales & Serv. Co., Inc. v. Commonwealth, 536 Pa. 10, 637 A.2d 607 (Pa. Cmwlth. 1993). The record is
made before the Court by stipulation or evidentiary hearing. See Pa. R.A.P. 1542 ("Evidentiary Hearing);
Pa. R.A.P. 1571(f); 20A West's Pa. Appellate Practice, § 1571:9 (2008). The stipulations of fact are
binding and conclusive on the court; however, we may draw our own legal conclusion from those facts.
Norris v. Commonwealth, 155 Pa. Commw. 423, 625 A.2d 179 (Pa. Cmwlth. 1993). Thus, this Court
functions as a trial court although the matter appears in our appellate jurisdiction. See 42 Pa. C.S. § 763
(Direct appeals from government agencies).
Notably, when reviewing F&R Board determinations, we are entitled to the broadest scope of review.
Allfirst Bank v. Commonwealth, 895 A.2d 669 (Pa. Cmwlth. 2006), aff'd, 593 Pa. 631, 933 A.2d 75 (2007);
Ignatz v. Commonwealth, 849 A.2d 308 (Pa. Cmwlth. 2004); Norris; PICPA Found. For Educ. & Research
v. Commonwealth, 143 Pa. Commw. 291, 598 A.2d 1078 (Pa. Cmwlth. 1991), aff'd, 535 Pa. 67, 634 A.2d
187 (1992)9.
4. In light of the foregoing discussion, we conclude that while reviewing this appeal in our appellate
jurisdiction, we function as a trial court, and we subject this matter to independent review. We are not
limited to the rationale offered in the OOR's written decision. Accordingly, we will enter narrative
findings and conclusions based on the evidence as a whole, and we will explain our rationale.
B. Scope of Review
For the following reasons, we conclude that a court reviewing an appeal from an OOR hearing officer is
entitled to the broadest scope of review.
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1. The Law designates the record on appeal before a court as the request for public records, the
agency's response, the appeal, the hearing transcript, if any, and the final written determination of the
appeals officer. 65 P.S. § 67.1303(b). The Law does not expressly restrain a court from reviewing other
material, such as a stipulation of the parties, or an in camera review of the documents at issue. Also,
the Law does not prohibit a court's supplementation of the record through hearing or remand.
It is unclear whether the General Assembly intended the Law to limit a reviewing court's scope of review
or merely to describe the items which must be certified to a court for review. Accordingly, we engage in
statutory construction.
2. The language of the Law describing the record on appeal before a court predates the current Law. In
2002, the previous version of the Right-to-Know Law was amended to include the provision that the
record on appeal to a court shall be "the request, the agency's response, the requester's exceptions, if
applicable, the hearing transcript, if any, and the agency's final determination, if applicable." See Former
Section 4 of the Law, added by the Act of June 29, 2002, P.L. 663, formerly, 65 P.S. § 66.4, repealed by
the Act of February 14, 2008, P.L. 6.
In deciding the effect of the current language on our scope of review, we may consider appellate
decisions made while functionally identical language was in effect. 1 Pa. C.S. § 1921(c)(5) (the intention
of the General Assembly may be ascertained by considering, among other matters, the former law,
including other statutes on the same subject). In Nernberg v. City of Dubois, 950 A.2d 1066 (Pa. Cmwlth.
2008), appeal denied, 600 Pa. 772, 968 A.2d 234 (2009), the trial court reviewed an appeal from a
deemed denial under the former Right-to-Know Law. The court admitted evidence during a hearing. The
evidence was admitted over objection. Ultimately, this Court affirmed, although for reasons unrelated
to the enlargement of the record.
Similarly, in York Newspapers, Inc. v. City of York, 826 A.2d 41 (Pa. Cmwlth. 2003), the trial court issued
an order establishing the procedure whereby the requested records would be searched, conducted a
view of the location where the records were stored, permitted the requester to review boxes previously
searched, and conducted in camera review of documents to which the parties could not agree. This
Court affirmed for reasons unrelated to the enlargement of the record. See also Muir v. Alexander, 858
A.2d 653 (Pa. Cmwlth. 2004) (trial court conducted in camera review of settlement agreement between
school district and former employee).
Moreover, several recent appellate decisions suggest that a court's in camera review of public records
sought under the former Right-to-Know Law is permissible. Tribune-Review Publ'g Co. v. Bodack, 599 Pa.
256, 961 A.2d 110 (2008) (Saylor, J. concurring) (recognizing availability of in camera review in
appropriate cases); Commonwealth ex rel. v. Dist. Attorney of Blair County, 2003 PA Super 114, 823 A.2d
147 (Pa. Super. 2003), aff'd, 583 Pa. 620, 880 A.2d 568 (2004) (common pleas court reviewed autopsy
report in camera to determine whether Commonwealth established release of report would hinder
homicide investigation); Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177 (Pa. Cmwlth. 2006)
(Commonwealth Court retained jurisdiction over request to PHEAA for expense vouchers to conduct in
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camera review, if necessary, over redacted information); Weiss v. Williamsport Area Sch. Dist., 872 A.2d
269 (Pa. Cmwlth. 2005) (common pleas court reviewed school documents in camera to determine
whether they were public records). See also LaValle v. Office of Gen. Counsel, 564 Pa. 482, 769 A.2d 449
(2001) (sound policy would support availability of in camera review by Commonwealth Court where
appropriate; case decided before statutory language describing record on appeal). As previously noted,
this procedure is consistent with the federal district court's authority to conduct in camera review under
the FOIA. See 5 U.S.C. § 552(b).
In sum, appellate courts deciding cases under the former Right-to-Know Law did not restrict reviewing
courts from considering information beyond the record described in the statutory language.
3. We also find guidance in our Supreme Court's decision in Appeal of Borough of Churchill, 525 Pa. 80,
575 A.2d 550 (1990), which addressed a court's inherent authority to control matters before it in a
statutory appeal. In Borough of Churchill, a landowner appealed a board of assessment's determination
of the fair market value of property to the court of common pleas. A question arose as to post-trial
practice. In particular, confusion arose as to whether the appealable order was the order entered after
hearing or the order disposing of post-trial motions.
On landowners' appeal from the order disposing of post-trial motions, this Court quashed the appeal.
We reasoned that post-trial practice does not apply to statutory appeals; therefore, the appealable
order was the order entered after hearing, not the order disposing of post-trial motions.
On further appeal, the Supreme Court reversed. Of particular note, the Supreme Court agreed with our
conclusion the Rules of Civil Procedure do not apply in statutory appeals. But, the Court further stated:
Since the Rules of Civil Procedure are inapplicable to statutory appeals, rules of practice and procedure
[do] not have to be enacted in strict compliance with the provisions of Rule 239 [relating to local rules].
Rather, our trial courts have had the right to enact rules and publish these to cover practice in this area
of the law. Where they have not created and published such local rules, then each trial court has been
vested with the full authority of the court to make rules of practice for the proper disposition of cases
before them and that we have enforced those rules unless they violated the Constitution or laws of the
Commonwealth or United States, or our state-wide rules. The general, inherent power of all courts to
regulate their own practice, without control, on the ground of expediency, has been recognized by this
court for almost one hundred and eighty years … and we see no reason at this time to disturb that wellsettled principle. Id. at 89, 575 A.2d at 554. As the common pleas court in Borough of Churchill expressly
invited the parties to file exceptions to its decision, and its decision to do so did not violate case law or
state-wide rules, the Supreme Court concluded post-trial practice was not prohibited. Thus, the
appealable order was the order disposing of post-trial motions.
Our Supreme Court in Borough of Churchill held that a court reviewing a decision in a statutory appeal
possesses the inherent right to employ rules for procedure and practice before it so long as the rules do
not conflict or violate the laws of the Commonwealth or the United States. As discussed above, the
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current Law does not expressly restrain a court from reviewing other material or prohibit a court's
supplementation of the record through hearing or remand. The rationale in Borough of Churchill
supports a conclusion that, in the absence of a specific restriction, a court deciding a statutory appeal
has the inherent authority to take reasonable measures to ensure that a record sufficient for judicial
review exists.
4. In light of the discussion above, we conclude that Section 1303 of the Law was not intended to restrict
a reviewing court's scope of review. Rather, similar to this Court's review of F&R Board decisions, a court
is entitled to the broadest scope of review. Allfirst Bank; Ignatz. The language in Section 1303 of the Law
was intended to describe the record to be certified by the OOR to a reviewing court.
However, the overall statutory scheme of the Law clearly indicates the General Assembly's intent that
issues regarding access to public records be resolved expeditiously and efficiently. This is most evident in
Chapters 9 and 11 of the Law, which deal with agency responses to requests and initial appeals of
agency determinations. 65 P.S. §§ 67.901-67.1102.
For example, Section 901 of the Law requires that an agency respond to a request within five business
days of receipt of the request by the agency's open records officer. 65 P.S. § 67.901. Failure to do so
may result in a deemed denial. Id. Under certain circumstances, the time to respond may be extended
up to 30 additional days. Section 902 of the Law, 65 P.S. § 67.902.
Also, Section 1101 of the Law imposes tight time limits on the time to file an initial appeal to OOR (15
days) and on the time within which an OOR appeals officer shall resolve an initial appeal (30 days). 65
P.S. §§ 67.1101. An appeal is deemed denied where no determination is rendered by the appeals officer
within 30 days. Id. In the absence of regulation, policy or procedure governing initial appeals, the
appeals officer shall rule on procedural matters "on the basis of justice, fairness and the expeditious
resolution of the dispute." Section 1102 of the Law, 65 P.S. § 67.1102 (emphasis added).
Given this overall scheme, a court reviewing an appeal from the OOR under the Law should consider the
manner of proceeding most consistent with justice, fairness and expeditious resolution. For example,
should a hearing be necessary for proper review, a court may consider that a hearing before an OOR
appeals officer is not attended with the same formality as in court. See Section 1102(a)(2) of the Law, 65
P.S. § 67.1102(a)(2) (appeals officer may admit into evidence information believed to be reasonably
probative and relevant; appeals officer may limit cumulative evidence)10. Also, a court should consider
that at times requesters will be unrepresented and therefore at a disadvantage in certain court
proceedings.
IV. Merits
A. Issues
On appeal, Requester assigns error in the OOR's conclusion that PEMA proved it properly withheld the
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names of recipients of goods and services purchased with Homeland Security grant funds. He also claims
the OOR erred by denying access to the records in the medium requested.
B. Public Records
The new Law is significantly different in that the prior version of the Law narrowly defined the term
"public record11." Under the current Law, however, any record, including financial records of a
Commonwealth or local agency, is a public record to the extent the record: is not exempt from
disclosure under the Law; is not exempt under Federal or State law, regulation, or judicial order or
decree; or, is not protected by privilege. Section 102 of the Law, 65 P.S. § 67.102. In turn, the term
"record" is defined as
[i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of
an agency and that is created, received or retained pursuant to law or in connection with a transaction,
business or activity of the agency. The term includes a document, paper, letter, map, book, tape,
photograph, film or sound recording, information stored or maintained electronically and a dataprocessed or image-processed document.Id.
Here, there is no dispute, and we so find, the records at issue are records as defined by the Law. The
issue, therefore, is whether the records are "public records" and whether there is a statutory exemption
prohibiting their disclosure.
We also find the records requested are public records. Indeed, PEMA does not disagree to the extent it
provided information contained within the records Requester sought: the purchase order number; the
quantity and types of goods and services purchased; the unit price; the total purchase price; the total of
all items on a single purchase order; the date upon which PEMA sent the purchase order to the vendor;
and, the vendor. See R.R. at 10a-286a.
C. Statutory Exemption
We therefore consider whether Section 708(b)(2) and (3) requires PEMA to withhold the names of the
recipients of the goods and services purchased. As the Law is remedial legislation designed 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, the exemptions from disclosure must be
narrowly construed. See generally Borough of Youngwood v. Pa. Prevailing Wage Appeals Bd., 596 Pa.
603, 947 A.2d 724 (2008) (exemptions to remedial legislation must be construed narrowly); Lukes v.
Dep't of Pub. Welfare, 976 A.2d 609 (Pa. Cmwlth. 2009) (purposes of Law); see also Judicial Watch, Inc.
v. U.S. Dep't of State, 650 F. Supp. 2d 28 (D.D.C. 2009) (exemptions from disclosure must be construed in
such a way as to provide maximum access consonant with overall purpose of FOIA).
PEMA cited subsections 708(b)(2) and (3)(ii) of the Law, 65 P.S. § 67.708(b)(2) and (3)(ii), to justify
redaction of the recipients' names. In their entirety, these subsections provide the following records
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Commonwealth Court
shall not be accessed by a requester:
(2) A record maintained by an agency in connection with the military, homeland security, national
defense, law enforcement or other public safety activity that, if disclosed, would be reasonably likely to
jeopardize or threaten public safety or preparedness or public protection activity or a record that is
designated by an appropriate Federal or State military authority.
(3) A record, the disclosure of which creates a reasonable likelihood of endangering the safety or the
physical security of a building, public utility, resource, infrastructure, facility or information storage
system, which may include:
(i) documents or data relating to computer hardware, source files, software and system networks that
could jeopardize computer security by exposing a vulnerability in preventing, protecting against,
mitigating or responding to a terrorist act;
(ii) lists of infrastructure, resources and significant special events, including those defined by the Federal
Government in the National Infrastructure Protections, which are deemed critical due to their nature
and which result from risk analysis; threat assessments; consequence assessments; antiterrorism
protective measures and plans; counterterrorism measures and plans; and security and response needs
assessments; and
(iii) building plans or infrastructure records that expose or create vulnerability through disclosure of the
location, configuration or security of critical systems, including public utility systems, structural
elements, technology, communication, electrical, fire suppression, ventilation, water, wastewater,
sewage and gas systems.
Reviewing the statutory exemption and the public records subject to this appeal, we conclude PEMA
erred in part by redacting the names of all recipients.
More particularly, a cursory review of the reproduced record indicates some goods and services
purchased are not of such significance that knowing their location endangers the public safety or
preparedness, or the physical security of a building, public utility, resource, infrastructure, facility or
information storage system. 65 P.S. §§ 67.708(b)(2) and (3); see R.R. at 10a-284a. By way of example, we
fail to see how knowledge of the location of "bungee cords" endangers public safety or security of
facilities. See R.R. at 11a. The reproduced record is replete with examples of innocuous items the
location of which is not vital to local, state, or national public safety, preparedness, or public protection
activity.
On the other hand, we agree with PEMA that knowledge of the location of some goods and services may
pose a threat to public safety, preparedness and protection activity. For example, PEMA purchased a
number of computer servers. R.R. at 3a. Knowledge of the location of servers has the potential to
endanger an information storage system. 65 P.S. § 67.708(b)(3). Similarly, knowledge of the location of
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biochemical testing equipment could indicate a taskforce's ability to effectively respond to a chemical
threat. See R.R. at 115a.
In other words, PEMA's sweeping redaction of the recipients' names is overbroad. Whether knowledge
of the location of a particular item (with its supporting goods and services) is reasonably likely to pose a
threat to or endanger public safety cannot be made using a blanket approach. PEMA's method of
withholding the recipients' names runs counter to the purposes of the Law. Therefore, PEMA must make
a reasonable effort to differentiate between goods and services which are reasonably likely to endanger
public safety and those that do not. In the latter instance, PEMA must provide Requester with the
names of the recipients of the goods and services purchased with Homeland Security funds.
We are mindful, however, Section 705 of the Law, 65 P.S. § 67.705, specifically provides that an agency
is not required to "compile, maintain, format or organize a record in a manner in which the agency does
not currently compile, maintain, format or organize the record." Thus, we must leave to the discretion of
the agency the manner it chooses to release the names of the recipients of goods and services
purchased with Homeland Security funds for fiscal years 2005-2008 which do not pose a threat to public
safety or facilities12.
We appreciate the enormity of the task before PEMA on remand. Nevertheless, the General Assembly's
enactment of the new Law evidences its commitment to providing greater access to the
Commonwealth's public records. PEMA's redaction of all recipients' names is far too reaching, and the
broad redaction fails to consider that the location of all goods and services is not vital to public safety.
Accordingly, we reverse and remand this matter to the OOR with further instructions for remand to
PEMA allowing it to refine its redactions consistent with our discussion13.
ROBERT SIMPSON, Judge
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Commonwealth Court
Notes:
1. The General Assembly established the Office of Open Records (OOR) as part of its overhaul of
Pennsylvania's former Right-to-Know Law. The OOR is within the Department of Community and
Economic Development. See Section 1310 of the Law, 65 P.S. § 67.1310.
2. According to PEMA, the Buffer Zone Protection Program identifies sites within the
Commonwealth that the Department of Homeland Security designates as "critical
infrastructure." Reproduced Record (R.R.) at 8a.
3. See also Sections 705 (creation of record), 706 (redaction), 707 (production of records) and 901
(agency response) of the Law, 65 P.S. §§ 67.705-07, and § 67.901.
4. Pursuant to Section 1309 of the Law, 65 P.S. § 67.1309, the provisions of 2 Pa. C.S. (relating to
administrative law and procedure) do not apply to the Law unless specifically adopted by
regulation or policy.
5. "PDF" stands for "portable document format." A ".pdf" is a file format which captures
formatting information from desktop publishing applications making it possible to send
documents and have them appear on the recipient's monitor as they were intended to be
viewed. Available at www.webopedia.com/DidYouKnow/Computer Science/2005/pdf.asp.
6. PEMA also reasoned Buffer Zone Protection Program information is exempt from disclosure
under the Homeland Security's Protected Critical Infrastructure Information Program. See
Critical Infrastructures Protection Act of 2001, 42 U.S.C. § 5195c. Records designated as critical
infrastructure information are exempt from disclosure under the Freedom of Information Act
(FOIA) as well as state and local disclosure laws. See FOIA, 5 U.S.C. § 552(b)(3) (protection from
disclosure of records by statute); 6 U.S.C. § 133(a)(1)(A) (protection of voluntary shared critical
infrastructure information). "Critical infrastructure" is defined as "systems and assets, whether
physical or virtual, so vital to the United States that the incapacity or destruction of such
systems and assets would have a debilitating impact on security, national economic security,
national public health or safety, or any combination of those matters." 42 U.S.C. § 5195c(e).
7. In its supporting memorandum, PEMA maintained knowledge of the location of the goods and
services: draws a map to equipment that terrorists may wish to destroy or steal; allows
terrorists to formulate plans to circumvent the protective equipment; and, makes target
selection easier. In addition, PEMA attached to its memorandum three documents: a 2009
Taskforce Allocation Formula; a formula for assessing "risk"; and, an affidavit James F. Powers,
Director of the Department of Homeland Security for PEMA. The director's affidavit reinforces
PEMA's position that knowledge of even insignificant goods can be critical pieces of information
to the Commonwealth's safety and security. See OOR Record, at Tab 8.
Requester submitted an October 2007 Legislative Budget and Finance Committee report, "A
Review of Pennsylvania's Homeland Security Program." The purpose of the report was to
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address the need to strengthen and clarify Pennsylvania's homeland security program and
expenditure of funds. OOR Record, at Tab 21.
8. The Pennsylvania Newspaper Association appears as amicus curiae.
9. Our conclusion is also consistent with other avenues of statutory appeals where a reviewing
tribunal on appeal is permitted to take additional evidence and render findings of fact. See
generally 75 Pa. C.S. § 1550 (pertaining to judicial review of Department of Transportation
decisions affecting operating privileges); Commonwealth v. Etzel, 370 Pa. 253, 86 A.2d 64 (1952)
(it was incumbent on trial court to make findings of fact from the evidence adduced at hearing
and enter order consistent with such findings on appeal from license suspension); Section 1005A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended,
added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A (court of common pleas
may receive additional evidence on appeal from zoning determination); DeCray v. Zoning
Hearing Bd. of Upper Saucon Twp., 143 Pa. Commw. 469, 599 A.2d 286 (Pa. Cmwlth. 1991) (trial
court required to decide zoning appeal de novo where it took additional evidence); Hastings
Indus. v. Workmen's Comp. Appeal Bd. (Hyatt), 531 Pa. 186, 611 A.2d 1187 (1992) (Workers'
Compensation Appeal Board has broad scope of review in disfigurement cases); W. Pa. Hosp. v.
Workers' Comp. Appeal Bd. (Cassidy), 725 A.2d 1282 (Pa. Cmwlth. 1999) (amendments to
Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4,
2501-2807, did not affect Workers' Compensation Appeal Board's scope of review in
disfigurement cases); Section 518.2 of The General County Assessment Law, Act of May 22,
1933, P.L. 853, as amended, added by the Act of December 13, 1982, P.L. 1160, 72 P.S. § 5020518.2 (court of common pleas shall determine market value of property subject to tax
assessment appeal); Matter of Harrisburg Park Apartments, 88 Pa. Commw. 410, 489 A.2d 996
(Pa. Cmwlth. 1985) (trial court is fact-finder in tax assessment appeals and is required to
independently determine fair market value of property); Two Sophia's, Inc., v. Pa. Liquor Control
Bd., 799 A.2d 917 (Pa. Cmwlth. 2002) (trial court is required to receive record below, and
together with any other evidence properly submitted, make findings and conclusions).
10. Section 1101(a)(2) of the Law also provides that an appeals officer's decision to hold or not to
hold a hearing is not appealable. We construe this provision to be a limitation on a requester's
ability to appeal a denial of hearing, not a limitation on the inherent authority of a court to
supplement a record so that it is sufficient for review.
11. See Former Section 1 of the Law, formerly, 66 P.S. § 66.1.
12. For guidance, we refer PEMA to two approaches which the federal courts use when addressing
an agency's claim of disclosure exemption under the FOIA. First, the District of Columbia Circuit
Court of Appeals established in Vaughn v. Rosen, 484 F.2d 820, 157 U.S. App. D.C. 340 (D.C.Cir.,
1973), an item-by-item indexing system which correlates to a specific FOIA exemption.
The second approach recognized that a "Vaughn index" may not be a practical approach in view
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of the records requested. In some instances, a satisfactory index could undermine the
exemption and, in those cases, agencies may proffer generic determinations for nondisclosure.
Curran v. Dep't of Justice, 813 F.2d 473 (1st Cir. 1987); see also Crooker v. Bureau of Alcohol,
Tobacco & Firearms, 789 F.2d 64, 252 U.S. App. D.C. 232 (D.C.Cir. 1986). This does not, however,
absolve agencies from making a minimally sufficient showing of exemption. Curran. Agencies
may justify their exemptions on a category-of-document by category-of-document basis. Id. The
chief characteristic of a category-of-document methodology must be functionality, that is, the
classification should be clear enough to permit a court to ascertain "how each … category of
documents, if disclosed, would interfere with [the agency's duty not to disclose exempt public
records]." Id. at 475.
Because remand may alter the format in which PEMA provides the public records, we will not
consider at this time Requester's argument PEMA violated the Law by failing to produce the
public records in the format requested. See Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004
(Ariz. 2009).
10c-30
Signature Information Solutions, LLC v. Aston Township
Commonwealth Court
Signature Information Solutions, LLC. v. Aston Township
995 A.2d 510
May 26, 2010
Reporter's summary: A request was made for certain tax documents from the Township. The
township denied this request because the information was available online. On appeal, the township
then explained that the printouts did not exist. Although the appeals officer disregarded this information,
on appeal to the Court of Common Pleas, the court found that the additional reasons given by the
township should be considered. On appeal with the Commonwealth Court, the Court found that the trial
erred in allowing for the consideration of the explanation provided by the township. The township must
only submit documents supporting the original denial.
Headnotes:
Appeals process: It is not proper for an appeals officer or court to consider information that goes beyond
merely supporting the original denial of a record.
Note: With the decision in Levy v. Senate of Pennsylvania, 65 A.3d 361 (2013) allowing for the
consideration of additional grounds for denial not provided in the denial of the open records request,
this case should not be relied on.
10c-31
Commonwealth Court
Signature Information Solutions, LLC, Appellant v. Aston Township
995 A.2d 510; 2010 Pa. Commw.
February 9, 2010, Argued
May 26, 2010, Filed
OPINION BY SENIOR JUDGE FRIEDMAN
Signature Information Solutions, LLC, (Requester) appeals from the May 27, 2009, order of the Court of
Common Pleas of Delaware County (trial court), which reversed the Final Determination of the
Pennsylvania Office of Open Records (OOR) directing Aston Township (Township) to supply Requester
with information it requested pursuant to the Right-to-Know Law (Law)1. We reverse.
On January 28, 2009, Requester submitted a standard right-to-know request form to the Township,
seeking "printouts of the current tax year information (including INTERIM tax bills), as well as any other
charges for lienable items against the real estate that your tax entity collects, with regard to . . . [two
specified properties. Requester also sought] Homestead Rebate information where applicable." (R.R. at
5a; Findings of Fact, Nos. 1-2.)
The Township denied the request because the information "is available through publicly accessible
electronic means by accessing www.co.Delaware.pa.us, see Section 704 of the Act2." (1/29/09 Letter,
R.R. at 6a; Findings of Fact, No. 4.) The Township advised, "Should [Requester] require a certification of
the tax status for the property identified, a written request can be submitted to the Tax Collector for
Aston Township, along with the requisite fee…." (1/29/09 Letter, R.R. at 6a.)
On February 11, 2009, Requester filed an appeal with the OOR, stating, in part, as follows:
We are aware of the county site and do research information from the county on a regular basis with no
issue. Our request was focused [on] the information maintained by the tax collector. [Township
employees] have been upholding the argument that they … would need to obtain a certification from
the tax collector. We were simply … requesting the information from the [open records officer].(R.R. at
7a.) By letter dated February 11, 2009, the OOR notified the parties that it would assign an Appeals
Officer to review the case and that the parties could submit additional information regarding the appeal
within seven calendar days. (R.R. at 9a.)
The Township submitted nothing to the OOR within seven calendar days. On February 27, 2009,
however, the Township submitted an "Explanation of Grounds for Denial of Request" (Explanation). The
Township asserted that it denied the request pursuant to section 705 of the Law, which states that "an
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Commonwealth Court
agency shall not be required to create a record which does not currently exist or to compile, maintain,
format or organize a record in a manner in which the agency does not currently compile, maintain,
format or organize the record." 65 P.S. § 67.705. Although the Township previously denied the request
under section 704 of the Law because the printouts were available through the county web site, the
Township now asserted that printouts with the requested information do not exist. (R.R. at 13 a.)
[S]uch information would need to be assembled and then created in the form of a database to be
provided to [Requester]. This request seeks the type of information typically provided in the form of a
Tax Certification/Lien Search…. The Certification requires intensive research on the part of the Township
officials and employees. In order to prepare a Certification, a Township official or employee must search
various records in numerous databases (including but not limited to paper files, bank deposits, court
orders and county assessment appeals). From this information the Township official would then
assemble the data and figures and create a certified record. In some instances, a search of this nature
may take many hours. This Certification is not a public record and is not subject to the [Law] as it
requires the creation of a record, which is specifically exempted … under Section 705. [Requester]
attempts to circumvent the Township policy on Certifications through the Right to Know request.
The Township requires a Certification fee of $ 15.00 per researched and certified year….(R.R. at 13a-14a)
(emphasis added).
In a March 4, 2009, letter, the Appeals Officer advised the Township as follows:
Please be advised that your Explanation does not support nor appear to pertain to the Township's
January 29, 2009 denial letter that advises certain information is available to the public electronically
and so need not be provided as per Section 704….
The Explanation asserts new and previously not cited grounds for denial that are not properly raised
here. As to the reasons stated in the Denial, please specify what of the information requested … is
available publicly at the website the Township provided, and provide an Attestation … as to whether the
remaining information exists to be printed out as requested.(R.R. at 20a) (emphasis added).
In response, the Township filed a "Supplemental Explanation of Grounds for Denial of Request,"
asserting that it denied the request because "some or all" of the information is available on the
Delaware County website3. (R.R. at 21a.) The Township also attached the affidavit of its Tax Collector,
which stated that "the information requested … is not available in one single document or 'printout' but
must be assembled by me from a review of multiple documents and/or sources4." (R.R. at 24a.)
In a Final Determination, the Appeals Officer concluded that: (1) the Township improperly denied
Requester's request based on electronic availability because, under section 704(b)(2) of the Law, the
Township is required to provide printouts of public records when a requester is not willing to access a
public record electronically; (2) although the Township is not obligated to create a record under section
705 of the Law, the Township did not deny Requester access to the requested information on that basis;
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Commonwealth Court
(3) the Township cannot convert a proper right-to-know request into a tax certification request, and any
similarity between a tax certification request and the request here is irrelevant; and (4) "[m]ere
assembly of a separate record from a series of existing records is not 'creation' of a document under
Section 705 [of the Law]. Regardless of whether there is a single screen, or multiple screens containing
the requested information, if it exists, the Township must provide it." (R.R. at 36a.)
The Township filed an appeal with the trial court, which reversed the OOR's Final Determination. The
trial court stated that: (1) because the Appeals Officer could expand the record under section 1102(a) of
the Law5, the Township was not limited to its initial reason for denial of the right-to-know request; and,
(2) under section 705 of the Law, the Township was not required to assemble the information requested
from a review of multiple documents or sources. Requester now appeals to this court.
Requester argues that the trial court erred in concluding that section 1102(a) of the Law allowed the
Township to assert a different reason for its denial of the right-to-know request. We agree.
We begin by pointing out that section 903(2) of the Law requires that a denial of a right-to-know request
include the "specific reasons for the denial, including a citation of supporting legal authority6." 65 P.S. §
67.903(2). Section 1101(a)(1) of the Law states that an appeal to the OOR "shall address any grounds
stated by the agency for … denying the request." 65 P.S. § 67.1101(a)(1). Here, the Township's specific
reason for its denial was the availability of the information on the county web site, citing section 704 of
the Law as supporting legal authority for the denial. Requester's appeal addressed that issue.
Section 1102(a) of the Law provides, in pertinent part, as follows:
(a) Duties. -- An appeals officer … shall do all of the following:
(1) Set a schedule for the requester and the open-records officer to submit documents in support of their
positions.
(2) Review all information filed relating to the request. The appeals officer may hold a hearing. A
decision to hold or not to hold a hearing is not appealable. The appeals officer may admit into evidence
testimony, evidence and documents that the appeals officer believes to be reasonably probative and
relevant to an issue in dispute.65 P.S. § 67.1102(a) (emphasis added). Contrary to the trial court's
reading of the provision, section 1102(a) of the Law does not permit an agency that has given a specific
reason for a denial to assert a different reason on appeal. Section 1102(a) of the Law permitted the
Township only to submit documents in support of its stated position.
If an agency could alter its position after the agency stated it and the requester addressed it in an
appeal, then the requirements in sections 903(2) and 1101(a)(1) of the Law would become a
meaningless exercise. An agency could assert any improper reason for the denial of a right-to-know
request and would not have to provide an arguably valid reason unless and until the requester filed an
appeal. Such a reading of section 1102(a) of the Law would make a mockery of the process set forth in
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Commonwealth Court
the Law.
Indeed, under section 902(a)(4) of the Law, if an agency is uncertain regarding its duty to disclose
requested information under the Law, the agency may assert the need for an extension of time to
perform a legal review to determine whether the requested information is subject to access. 65 P.S. §
67.902(a)(4). Thus, no agency can claim that it lacked sufficient time to consider the reason it decided to
give for denying a right-to-know request.
Furthermore, section 1102(b)(3) of the Law states that, "[i]n the absence of a regulation, policy or
procedure governing appeals under this chapter [Chapter 11], the appeals officer shall rule on
procedural matters on the basis of justice, fairness and the expeditious resolution of the dispute." It is
not fair or just to a requester to allow an agency to alter the reason given for a denial after the
requester has taken an appeal based on the stated reason. Moreover, permitting an agency to set forth
additional reasons for a denial at the appeal level does not allow for an expeditious resolution of the
dispute.
Based on the foregoing, we conclude that the trial court erred in allowing the Township to alter its
reason for denying Requester's right-to-know request and in considering whether the Township could
have properly denied Requester's right-to-know request under section 705 of the Law.
Accordingly, we reverse7.
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 26th day of May, 2010, the order of the Court of Common Pleas of Delaware County,
dated May 27, 2009, is hereby reversed.
ROCHELLE S. FRIEDMAN, Senior Judge
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Commonwealth Court
Notes:
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2. Section 704(b) of the Law provides, in pertinent part, as follows:
(1) … [A]n agency may respond to a request by notifying the requester that the record is
available through publicly accessible electronic means….
(2) If the requester is unwilling … to access the record electronically, the requester may, within
30 days following receipt of the agency notification, submit a written request to the agency to
have the record converted to paper. The agency shall provide access to the record in printed
form within five days of the receipt of the written request for conversion to paper.65 P.S. §
67.704(b).
3. We note that the Township actually denied the request because all of the information was
available on the website.
4. We note that the Township did not provide what the Appeals Officer directed, i.e., a statement
specifying the information that is available publicly at the web site and an attestation as to
whether the remaining information exists to be printed out as requested.
5. 65 P.S. § 67.1102(a). Under section 1102(a) of the Law, the parties may submit documents in
support of their positions, and the appeals officer may hold a hearing for the submission of
evidence. Id.
6. As indicated, the Township set forth a specific reason for the denial and cited section 704 of the
Law as supporting legal authority; however, if the reason given and the authority cited did not
reflect the actual reason for the denial, then the Township failed to comply with section 903(2)
of the Law. Indeed, we read section 903(2) of the Law to require an agency to provide the actual
reason for the denial.
7. Because of our disposition of these issues, we need not address other issues raised in the briefs.
10c-36
995 A.2d 515
May 26, 2010
Reporter's summary: The Commonwealth Court determined that the Office of Open Records erred when
the appeals officer unilaterally narrowed the scope of the request on appeal and granted the request.
Headnotes:
Review process - On appeal, the court and appeals officers are limited to the original request,
documents supporting the request, the original denial and documents supporting the denial.
10c-37
Commonwealth Court
Pennsylvania State Police, Petitioner v. Office of Open Records, Respondent
995 A.2d 515; 2010 Pa. Commw.
April 23, 2010, Submitted
May 26, 2010, Filed
OPINION BY JUDGE PELLEGRINI
The Pennsylvania State Police (PSP) appeals from the final determination of the Office of Open Records
(OOR) granting the appeal of John P. George (Requestor) who had requested certain information from
the PSP regarding vehicle stops and searches and the seizure of property taken from such vehicles.
Requestor submitted a Right-to-Know Law (RTKL)1 request to the PSP seeking:
Any and all records, files, or manual(s), communication(s) of any kind, that explain, instruct, and or
require officer(s) and Trooper(s) to follow when stopping a Motor Vehicle, pertaining to subsequent
search(es) of that Vehicle, and the seizures of any property, reason(s) therefore (sic) taking property.
(Emphasis added.)(Reproduced Record, p. 23.)
The PSP denied the request stating that it was insufficiently specific2, and Requestor appealed to the
OOR. The OOR agreed that the request was insufficiently specific, stating that the final phrase of the
request, "and the seizures of any property, reason(s) therefore (sic) taking property," could be read to
mean the seizure of any property from any location or any person for any reason. (OOR Final
Determination, p. 7.) However, the OOR stated that in his appeal, Requestor narrowed his request to
make it clear he was only seeking a "manual" relating to the actual procedures for handling the vehicle
stop and subsequent search of the person, vehicle and property within the vehicle. In turn, the OOR
itself narrowed the request to include only that specific manual and ordered the PSP to turn over that
information to Requestor.
PSP appealed3 arguing that the OOR does not have the authority to unilaterally narrow the scope of a
request to make it conform to the parameters of the RTKL. The OOR in its brief concedes that the PSP is
correct and that it erred by narrowing the request and asks us to reverse its decision. We agree that the
request and the reason(s) that the agency denies access are fixed, and the OOR is limited to the reasons
set forth in those pleadings unless the agency cannot know that the record is not subject to access or
make other determinations before a preliminary matter is resolved. Otherwise, the procedures would
not be in accord with the legislative scheme set forth in Sections 901, 903 and 1101 of the RTKL
regarding access to public records4. Section 901 deals with the process the agency must go through to
determine how to respond to a request for a record. It provides that an agency must make a good faith
effort to determine the type of record requested and then to respond as promptly as possible to the
request. Section 903 provides that if an agency denies access to a record, it must give "[t]he specific
10c-38
Commonwealth Court
reasons for the denial." Section 1101 provides, "The appeal [to the OOR] shall state the grounds upon
which the requester asserts that the record is a public record, legislative record or financial record and
shall address any grounds stated by the agency for delaying or denying the request."
Under these provisions, the requestor tells the agency what records he wants, and the agency responds
by either giving the records or denying the request by providing specific reasons why the request has
been denied. The requestor can then take an appeal to the OOR where it is given to a hearing officer for
a determination. Nowhere in this process has the General Assembly provided that the OOR can
refashion the request.
Having said all that, we do not agree with the OOR that all of the information requested in this case was
insufficiently specific. The OOR determined that the request was insufficiently specific by reasoning that
"conceivably" the request could be read to ask for any and all materials regarding any and all types of
seizure. In context, it is clear that the phrase "and the seizure of any property" refers only to property
seized from a vehicle following a stop and search of that vehicle and is, thus, not overbroad. What is
overbroad, though, is the first clause of the request, which begins, "Any and all records, files, or
manual(s), communication(s) of any kind…." (Reproduced Record, p. 23.) The portion of the request
seeking any and all records, files or communications is insufficiently specific for the PSP to respond to
the request. However, the request for "manual(s)" relating to vehicle stops, searches and seizures is
specific and does provide a basis for the PSP to respond.
Because the valid part of the request was included in a laundry list of requested materials and because
of the newness of the law, the PSP may still raise any claim that access to the manuals, if they exist,
should be denied under another provision of the RTKL. However, agencies as a normal practice should
raise all objections to access when the request is made if the reason for denying access can be
reasonably discerned when the request is made. Otherwise, review will be piecemeal, and the purpose
of the RTKL in allowing access to public records in a timely manner will be frustrated.
For the foregoing reasons, the OOR's final determination is affirmed regarding the request for "any and
all records, files, or communications of any kind" but it is vacated as to the request for "manuals." The
matter is remanded to the Pennsylvania State Police to either provide access to the manual(s) or give
specific reasons why access is denied.
DAN PELLEGRINI, JUDGE
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Notes:
2. Section 703 of the RTKL, 65 P.S. § 67.703, provides, in pertinent part, "A written request should
identify or describe the records sought with sufficient specificity to enable the agency to
ascertain which records are being requested."
3. Our standard of review in an appeal from the OOR is independent review of the evidence, and
our scope of review is plenary. Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth.
2010).
4. 65 P.S. §§ 67.901, 67.903 and 67.1101.
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34 A.3d 243
October 6, 2011
Reporter's summary: Although the attorney-client privilege protects confidential communications
between a client and an attorney in certain situations, the privilege will generally not protect the names
of the clients and a general description of legal work provided.
Headnotes:
Case law - The attorney-client privilege covers “not only confidential client-to-attorney communications
but also confidential attorney-to-client communications made for the purpose of obtaining or providing
professional legal advice.” Gillard v. AIG Insurance Company, 15 A.3d 44 (2011).
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Marc Levy, Petitioner v. Senate of Pennsylvania, Respondent
34 A.3d 243; 2011 Pa. Commw.
May 11, 2011, Argued
July 25, 2011, Decided
October 6, 2011, Filed
OPINION BY JUDGE SIMPSON1
In this Right-to-Know Law (Law)2 appeal from a partial denial (redaction) of legislative records3 of the
Senate of Pennsylvania, we are asked whether the attorney-client privilege shields the names of clients
and descriptions of legal services in bills presented to the Senate for reimbursement. In particular, Marc
Levy appeals the decision of the Senate Appeals Officer which directed the Senate either to provide
affidavits supporting the assertion of the attorney-client privilege or to provide the requested records
"revealing the identity of the clients and any purpose for which the various attorneys are engaged."
Pet?r?s Br., App. A at 14 (Senate Appeals Officer, Final Determination Order, 9/16/10).
I. Background
At issue are two requests. The first sought "all bills, contracts and payment records relating to the hiring
of any outside lawyer or law firm to represent Sen. Robert J. Mellow beginning Jan. 1, 2009."
Reproduced Record (R.R.) at 2a. The second request sought the same records regarding "any current or
former employee of the Senate Democratic caucus." R.R. at 1a.
The Senate Open Records Officer responded to the requests and provided about 100 pages with
redactions. Specifically, the Senate produced five sets of financial records relating to five clients
employed by the Senate who, pursuant to the Senate Committee on Management Operations (COMO)
Policy for the Payment of Legal Services, were provided with outside counsel.
The reason for the redactions was stated to be "the attorney-client privilege." R.R. at 3a. Primarily, the
names of the five clients and the description of legal services provided to them were redacted. Other
information in the financial records was available.
Levy appealed the partial denial to the Senate Appeals Officer, taking the position that the redacted
information was not privileged. The parties submitted memoranda. In its memorandum, the Senate
addressed the attorney-client privilege, and it also discussed the work product privilege, grand jury
secrecy, and an exemption relating to a criminal investigation. See Section 708(b)(16) of the Law, 65
P.S.§67.708(b)(16).
In an opinion accompanying his final determination, the Senate Appeals Officer discussed the attorneyclient privilege at length.4 He reviewed copies of the redacted records to determine whether the criteria
necessary for the attorney-client privilege were present. He concluded that most of the criteria were
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present, but it was impossible to determine whether or not the communications of identity and the
purpose for which the attorney was being engaged were made "without the presence of strangers" and
"not for the purpose of committing a crime or tort." Final Determination, September 16, 2010 at 8.
Because the attorney-client privilege deserves the utmost deference, he ordered that the Senate could
remedy the lack of objective indicia by providing supplemental affidavits.
The Senate Appeals Officer also addressed Levy's argument that any privilege was waived because the
bills for legal services were submitted to the Chief Clerk of the Senate for the purpose of paying the legal
fees. He concluded that such intra-Senate type communications may retain a privileged status and be
shared with employees on a "need-to-know" basis. The Chief Clerk is an elected officer of the Senate,
and it is well within his duties to receive copies of the records and make payment of the legal fees
incurred by the Senate on behalf of its members and employees. In the absence of some indication of
waiver on the face of the records, they retain their privileged status.
Unfortunately, the Senate Appeals Officer did not specify a time within which to produce supplemental
affidavits or unredacted records. On Friday, October 15, 2010, which was the twenty-ninth day after the
final determination was mailed, Levy appealed to this Court. At that point, neither supplemental
affidavits nor unredacted records had been produced by the Senate. Pursuant to Section 1301(b) of the
Law, 65 P.S. §67.1301(b), the appeal stayed release of documents.
II. Appeal
A. Generally
While the appeal was pending in this Court, the Pennsylvania Supreme Court rendered an important
decision on the attorney-client privilege, Gillard v. AIG Insurance Company, ___ Pa. ___, 15 A.3d 44
(2011). The holding in that case essentially broadened the attorney-client privilege to cover not only
confidential client-to-attorney communications but also confidential attorney-to-client communications
made for the purpose of obtaining or providing professional legal advice. Id. at ___, 15 A.3d at 59.
Although the case did not deal with bills for legal services or the identities of clients, the Supreme
Court’s analysis is useful here and will be discussed below.
After appellate argument, and in an effort to untie the procedural knot arising from the timing of the
appeal and the application of an automatic stay, we entered a case management order which allowed
the Senate to file a supplemental affidavit as ordered by the Senate Appeals Officer within 10 days. See
Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc), appeal granted, ___ Pa.
___, 15 A.3d 427 (2011) (reviewing court may supplement record to ensure adequate review; court
should consider manner of proceeding most consistent with justice, fairness and expeditious resolution).
The affidavit was timely filed, and it is appended to this decision as Attachment A.
In addition, we ordered production of unredacted records for in camera judicial review. See Pa. State
Police v. Office of Open Records, 5 A.3d 473 (Pa. Cmwlth. 2010) (court conducted in camera review of
incident reports to determine whether exception under the Law applied); Bowling (Law does not
expressly prohibit in camera review); see also Gillard (trial court conducted in camera review of
documents subject to asserted privilege on the record and in presence of counsel; in camera judicial
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review provides essential check against possibility for abuse of privilege). In camera judicial review was
undertaken by Senior Judge James R. Kelley, acting as special master for the en banc panel. His report
was filed under seal on July 25, 2011. Although the unredacted records shall remain under seal, the
report is UNSEALED, and it is appended to this decision as Attachment B. His recommendations are
accepted and entered as supplemental findings and conclusions by the en banc panel. His
recommendations are discussed below.
In an appeal to this Court under Section 1301 of the Law, 65 P.S. §67.1301 (pertaining to
Commonwealth, legislative and judicial agencies), we act in our appellate jurisdiction, but we
independently review the appeals officer's orders, and we may substitute our own findings of fact.
Bowling. Further, we exercise the broadest scope of review. Id. The issue of whether the attorney-client
privilege protects a particular communication from disclosure is a question of law. Nationwide Mut. Ins.
Co. v. Fleming, 2007 PA Super 145, 924 A.2d 1259 (Pa. Super. 2007), aff'd on other grounds by an equally
divided court, 605 Pa. 468, 992 A.2d 65 (2010). For any question of law, this Court’s standard of review is
de novo and our scope is plenary. Id.
B. Contentions
Generally, Levy contends the Law establishes a presumption of public access to government records,
especially, as here, to records relating to the expenditure of public funds. The Senate bears the burden
of rebutting that presumption and establishing a lawful basis for redaction, but it failed to carry its
burden.
More specifically, Levy argues that the attorney-client privilege does not shield from disclosure the
identities of public employees who receive publicly funded legal representation or the nature of the
services provided at public expense. Citing pre-Gillard cases, Levy argues the Senate's blanket redaction
conflicts with established Pennsylvania privilege law, which protects attorney-to-client communications
only when those communications reflect the confidential client-to-attorney communications. Levy also
seeks to distinguish two Commonwealth Court cases addressing redactions of the description of legal
services in bills, Board of Supervisors of Milford Township v. McGogney, 13 A.3d 569 (Pa. Cmwlth. 2011),
appeal denied, ___ Pa. ___, 24 A.3d 364 (No. 124 MAL 2011, filed July 8, 2011), and Schenck v. Township
of Center, Butler County, 893 A.2d 849 (Pa. Cmwlth. 2006).
Further, Levy contends that the Senate misstates the narrow circumstances where client identities may
be privileged. The Senate did not establish those narrow circumstances here.
In addition, Levy argues that the unidentified clients waived any privilege by seeking reimbursement
from the third-party Senate.
In addition to his primary arguments, Levy makes other points. He generally contends that the Senate's
alternate arguments (work product, grand jury secrecy and investigative exemption) are unpersuasive.
Also, he decries the tenor of the Senate's written argument.5
In its spirited written arguments on the merits, the Senate contends that this Court should conclude as a
matter of law that the attorney-client privilege applies to protect client identities and the purpose or
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reasons why various attorneys were engaged. Relying on McGogney, Schenck and two advisory opinions
from the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, the
Senate argues that Pennsylvania law protects the information redacted here.
Also, the Senate acknowledges the general rule that attorney billing records are generally not protected
by the attorney-client privilege. However, the Senate urges application of either of two overlapping
exceptions to the general rule which protect a client’s identity in certain circumstances. The first is the
legal advice exception, which arises where there is a strong possibility that disclosure of the fact of
retention or of the details of a fee arrangement is tantamount to disclosing why the person sought legal
advice in the first place. See United States v. Liebman, 742 F.2d 807 (3d Cir. 1984); In re Grand Jury
Investigation, 631 F.2d 17 (3d Cir. 1980). The second overlapping exception is the confidential
communications exception, which protects client identity and services performed by an attorney if, by
revealing the information, the attorney would necessarily disclose confidential communications. The
Senate cites federal cases beyond the Third District. According to the Senate, two of the records state on
their face that they are related to an ongoing criminal grand jury investigation. Supplemental
Reproduced Record (S.R.R.) at 140a, 145a. Moreover, "revelation of the services performed for the five
clients would undoubtedly reveal the motive of the clients in seeking representation (i.e., to navigate
the grand jury process), as well as the attorney's specific advice in navigating that ... process."
Respondent Br. at 23.
The Senate further contends that indemnification of legal fees does not waive the attorney-client
privilege. The Chief Clerk of the Senate, who is also the open records officer, is an agent of the Senate
for purposes of privilege analysis. Pursuant to the Senate COMO Policy for the Payment of Legal
Services,6 he must preserve the privilege. The privilege can only be waived by the clients.
Finally, the Senate urges the merits of it alternate bases for redaction.
After the Supreme Court issued its decision in Gillard, both parties supplemented their arguments.
Offering a broad interpretation, the Senate argued that the Court in Gillard expressly rejected Levy's
contention that the attorney-client privilege is limited to confidential communications from a client.
Thereafter, Levy rejoined that Gillard does not bring client identity within the privilege. Also, Gillard
does not justify blanket redactions, nor does that decision impact the waiver issue.
C. Discussion
1. Alternate Bases for Redaction
While the parties argue about other privileges and exemptions, those alternate bases for redaction are
waived. This is because the only reason given by the Senate's Open Records Officer for the redaction
was "the attorney-client privilege." R.R. at 3a; see Signature Information Solutions, LLC v. Aston Twp.,
995 A.2d 510 (Pa. Cmwlth. 2010) (local agency not permitted to alter its reason for denying request on
appeal to the Office of Open Records).
2. Attorney-Client Privilege
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a. Generally
The attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for
confidential communications in common law. Fleming; McGogney. It is designed to encourage trust and
candid communication between lawyers and their clients. Gillard, __ Pa. at ___, 15 A.3d at 57 (citing,
among other authority, Restatement (Third) of The Law Governing Lawyers §68 cmt. c (2000) (privilege
"enhances the value of client-lawyer communications and hence the efficacy of legal services")).7 The
privilege affords derivative protection to attorney-to-client communications. Id. A broader range of
derivative protection is appropriate to facilitate open communication. Id. Our Supreme Court recognizes
the difficulty in unraveling attorney advice from client input and stresses the need for greater certainty
to encourage the desired frankness. Id.
The attorney-client privilege often competes with other interests-of-justice factors. See id. The privilege
here is in tension with the purpose of the Law, which is remedial legislation designed 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. Bowling.
The general rule is that, unless otherwise provided by law, a legislative record is accessible for inspection
and duplication. Section 710(a) of the Law, 65 P.S. §67.701(a); McGogney. However, a legislative record
is not presumed to be available in accordance with the Law if it is protected by a privilege. Section
305(b) of the Law, 65 P.S. §67.305(b). Similarly, privileged documents are excluded from the definition
of "public record" by Section 102 of the Law. 65 P.S. §67.102; McGogney. Section 102 of the Law also
defines "privilege" as including the attorney-client privilege. Id. Further, Section 506 of the Law states
that an agency lacks discretion to release privileged information. 65 P.S. §67.506(c)(2); McGogney.
The party asserting the attorney-client privilege must initially set forth facts showing that the privilege is
properly invoked. Fleming; see also Dep't of Transp. v. Office of Open Records, 7 A.3d 329 (Pa. Cmwlth.
2010) (agency failed to carry its burden of showing documents covered by privilege). This burden is
similar to the burden imposed by the Law on an agency to justify a total or partial denial (redaction).
Section 903 of the Law, 65 P.S. §67.903.
b. General Rules
i. Client Identity
As to the issue of whether a client's identity falls within the scope of the attorney-client privilege, an
American Law Reports 3rd (A.L.R.3d) article on that issue provides:
It has been said that the reason underlying the attorney-client privilege is to encourage a client
to disclose fully the facts and circumstances of his case to his attorney without fear that he or
his attorney will be compelled to testify as to the communications had between them. Since the
privilege results in the exclusion of evidence it runs counter to the widely held view that the
fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice.
In reconciling these conflicting principles the courts have pointed out that since the policy of full
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disclosure is the more fundamental one, the privilege is not to be viewed as absolute and is to
be strictly limited to the purpose for which it exists.
There is general agreement among the courts that where an inquiry is directed to an attorney as
to the name or identity of his client the attorney-client privilege is inapplicable even though the
information was communicated confidentially to the attorney in his professional capacity, in
some cases in spite of the fact that the attorney may have been sworn to secrecy. This principle
has been supported, with some exceptions, in criminal and tax proceedings ... as well as in civil
actions, the courts often basing its application on the premise that since the privilege
presupposes the attorney-client relationship, it does not attach to its creation. It is therefore
concluded that a client's identity, which is necessary proof of the existence of the relationship is,
similarly, not privileged information. ...
While the disclosure of the name or identity of a client is generally held not, in and of itself, a
matter within the attorney-client privilege, it has become so in situations in which so much has
been divulged with regard to the legal services rendered or the advice sought, that to reveal the
client's name would be to disclose the whole relationship and confidential communications.
Thus, in a number of civil actions courts have declared a client's name privileged where the
subject matter of the attorney-client relationship has already been revealed; and in criminal
proceedings, particularly where the attorney is not the accused, courts have recognized that a
client's name may be privileged if information already obtained by the tribunal, combined with
the client's identity, might expose him to criminal prosecution for acts subsequent to, and
because of, which he had sought the advice of his attorney. Similarly, in tax proceedings, some
courts have declared a taxpayer-client's name privileged when so much has been revealed
concerning the legal services rendered that the disclosure of the client's identity exposes him to
possible investigation and sanction by government agencies. ...
In a number of cases the courts have held or recognized that, as a general principle, the name or
identity of an undisclosed client is not proper subject matter for a confidential communication
and will not ordinarily be treated as privileged information.
R.M. Weddle, Annotation, Disclosure of Name, Identity, Address, Occupation, or Business of Client as
Violation of Attorney-Client Privilege, 16 A.L.R.3d 1047 (2008) (emphasis added) (footnotes omitted).
Further, as explained by Professor Paul R. Rice, in his treatise entitled Attorney-Client Privilege in the
United States:
Establishing the existence of an attorney-client relationship usually requires the identification of
the client. The client's identity, moreover, is not important to the substance of the legal advice or
assistance sought. Therefore, that information is usually is not protected by the attorney clientprivilege. This is also true of the names of prospective clients. Similarly, it does not protect the
identity of those who are agents of the client, and through whom the client has communicated
with the attorney. The client cannot reasonably assume that his identity will be confidential.
As explained in Behrens v, Hironimus[,] [170 F.2d 627, 628 (4th Cir. 1948)]:
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The existence of the relationship of attorney and client is not a privileged communication. The
privilege pertains to the subject matter, and not to the fact of employment as attorney, and
since it presupposes the relationship of attorney and client, it does not attach to the creation of
that relationship. So, ordinarily, the identity of the attorney's client, or the name of the real party
in interest, or the terms of the employment will not be considered as privileged matter. The
client or the attorney may be permitted or compelled to testify as to the fact of his employment
as attorney, or as to the fact of his having advised his client as to a certain matter, or performed
certain services for the client.
Paul R. Rice, Attorney-Client Privilege in the United States, §6:14 (2d. ed. 1999) (footnotes omitted).
The parties do not cite any Pennsylvania state cases that directly answer the question of whether a
client's identity is covered by the attorney-client privilege. Nevertheless, there are two early
Pennsylvania Supreme Court cases that specifically recognize the rule that a client's identity is not
shielded by the attorney-client privilege.
More specifically, in In re Seip's Estate, 163 Pa. 423, 30 A. 226, 35 Week. Notes Cas. 401 (1894), our
Supreme Court explained that the mere fact of employment of an attorney is not privileged. Accord
Sargent v. Johns, 206 Pa. 386, 55 A. 1051 (1903) (mere fact of employment of an attorney is not a
confidential or privileged communication). As a result, the Court held that an attorney was competent to
testify regarding his client's identity and an objection on the grounds of privilege could not prevail.
This rule was more clearly expressed by the Pennsylvania Supreme Court in Beeson v. Beeson, 9 Pa. 279,
1848 WL 5605 (Pa. 1848), where the Court explained:
With respect to the testimony of Mr. Veech[,] [an attorney], it is not objected that he was
permitted to disclose the fact of his having been retained by Jesse Beeson .... It is conceded such
an objection could not have prevailed, for an attorney is compellable to disclose, not only the
name of the person by whom he was retained, but also the character in which his client
employed him; whether as executor, trustee, or on his private account ....
Id., 1848 WL 5605, at *13 (emphasis added) (citation omitted).
Federal cases within the Third Circuit adhere to the rule that a client's identity is not privileged. See In re
Grand Jury Investigation, 631 F.2d 17 (3d Cir. 1980) ("in the absence of unusual circumstances, the
privilege does not shield ... the identity of clients ...."); In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) ("In
the absence of unusual circumstances, ... the identity of the client, the conditions of employment and
the amount of the fee do not come within the privilege of the attorney-client relationship.") (emphasis
added); Mauch v. Comm'r of Internal Revenue, 113 F.2d 555, 556 (3d Cir. 1940) (the "authorities are
almost unanimous in excluding bare identity from the scope of the privilege."); United States v. Cedeno,
496 F.Supp.2d 562, 567 (E.D. Pa. 2007) (noting "the attorney-client privilege exists to protect
confidential communications between a lawyer and a client; in most cases, the disclosure of a fee
arrangement or a client's identity does not disclose the substance of any confidences.") (Citation
omitted); see also United States v. Grand Jury Investigation, 401 F.Supp. 361 (W.D. Pa. 1975) (same).
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The Senate relies on two informal advisory opinions from the Pennsylvania Bar Association Committee
on Legal Ethics and Professional Responsibility which seek to protect client identity.8 We greatly respect
the thoughtful views of the Association; nevertheless, in light of the extensive and binding authority to
the contrary, and mindful of the self-acknowledged limitations of the advisory opinions,9 we decline the
invitation to follow them in this context.
ii. Description of Legal Services
Similarly, attorney fee agreements and billing records are generally subject to disclosure in
Pennsylvania. Thus, our Supreme Court in Commonwealth v. Chmiel, 585 Pa. 547, 599, 889 A.2d 501,
531 (2005), a capital murder case, agreed with the trial court that "disclosure of a fee agreement
between an attorney and client does not reveal a confidential communication." The Court held that
"[b]ecause the [prior attorney's] testimony regarding the fee agreement ... does not disclose strategy or
otherwise divulge confidential information, it is not subject to the attorney-client privilege." Id. at 599,
889 A.2d at 532.
Also, in Slusaw v. Hoffman, 2004 PA Super 354, 861 A.2d 269 (Pa. Super. 2004), the Superior Court
addressed production of invoices billed by attorneys to their client. The client objected to production of
the bills on the basis of the attorney-client privilege. Recognizing the derivative protection for
confidential attorney-to-client communication, the Court nevertheless ordered production of the bills to
the extent the bills did not disclose confidential communications from the client. The Court stated, "If
the invoices contain any references to such confidential communications, those references can be
redacted from the invoices." Id. at 373.
We reject as inapplicable much of the authority on which the Senate relies to shield from disclosure
descriptions of legal services. In Schenk, a case under the former Right-to-Know Law, the attorney-client
privilege was not at issue; rather, the case was decided on the basis of the work product rule applied
during on-going litigation. Thus, that case is distinguished on both law and facts. In McGogney, a case
under the current Law, the requestor did not contest application of a privilege; therefore, this Court did
not decide the issue. McGogney, 13 A.3d at 571,6. Accordingly, that case is not helpful in resolving the
current controversy.
c. Exception
The limited exception to the general rule is, according to Professor Rice, variously described as the "legal
advice" or "confidential communications" exception. The Senate also relies on this exception. Regarding
the client's identity, Professor Rice describes the exception in this way:
When the confidentiality of the client's identity has been substantively linked to the advice that
was sought, however, courts have afforded it protection because disclosure would implicate the
client in the very matter upon 'which legal advice was being sought.' Under such circumstances
the client could have a reasonable expectation that his identity would be confidential. This
exception has variously been described as the 'legal advice' or 'confidential communications'
exception.
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Paul R. Rice, Attorney-Client Privilege in the United States, §6:14 (2d. ed. 1999) (footnotes omitted).
We are unaware of any Pennsylvania state case that applied the exception to shield the name of a
client.10 However, the Third Circuit recognized the exception to the general rule when "so much of the
actual communication had already been established, that to disclose the client's name would disclose
the essence of a confidential communication ...." United States v. Liebman, 742 F.2d 807, 809 (3d Cir.
1984) (citations omitted). Thus, the identity of a client may become privileged if the person asserting the
privilege can show "a strong probability that disclosure of the fact of retention or of the details of a fee
arrangement would implicate the client in the very criminal activity for which the advice was sought." In
re Grand Jury Investigation, 631 F.2d at 19.
Further, in addressing disclosure of a fee agreement, our Supreme Court in Chmiel cited the Third Circuit
decision In re Grand Jury Investigation for the proposition that the "attorney-client privilege does not
protect fee agreements absent [the] strong probability that disclosure would implicate [the] client in
[the] criminal activity for which client sought legal advice." Chmiel, 585 Pa. at 599, 889 A.2d at 531-32.
Given the existence of the Third Circuit cases and our Supreme Court's recent citation to one of them, it
is possible that the Court would apply the exception in the rare instance when it is appropriate.
Moreover, in Gillard the parties and the Supreme Court gave much attention to Restatement (Third) of
the Law Governing Lawyers. Ultimately, the Court adopted a position on broad derivative privilege
which is consistent with that set forth in the Restatement. See Restatement (Third) of The Law
Governing Lawyers §69 cmt. i (2000) (rejecting limitation on protection of lawyer communication unless
it contains or expressly refers to a client communication in favor of broader rule). Under these
circumstances, it is useful to examine the Restatement's approach to protection of a client's name and
billing information. Comment g to Section 69 of the Restatement (Third) of The Law Governing Lawyers
(entitled "Attorney-Client Privilege— 'Communication'"), states:
g. Client identity, the fact of consultation, fee payment, and similar matters. Courts have
sometimes asserted that the attorney-client privilege categorically does not apply to such
matters as the following: the identity of a client; the fact that the client consulted the lawyer and
the general subject matter of the consultation; the identity of a nonclient who retained or paid
the lawyer to represent the client; the details of any retainer agreement; the amount of the
agreed-upon fee; and the client's whereabouts. Testimony about such matters normally does not
reveal the content of communications from the client. However, admissibility of such testimony
should be based on the extent to which it reveals the content of a privileged communication. The
privilege applies if the testimony directly or by reasonable inference would reveal the content of
a confidential communication. But the privilege does not protect clients or lawyers against
revealing a lawyer's knowledge about a client solely on the ground that doing so would
incriminate the client or otherwise prejudice the client's interests. ...
Restatement (Third) of The Law Governing Lawyers §69 cmt. g (2000).11
Id. In Camera Judicial Review
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After careful in camera judicial review, the Court identified specific descriptions of legal services which
implicate confidential communications between the clients and the attorneys. Those will be redacted in
accordance with the recommendations of our special master, Senior Judge Kelley. The general
descriptions of legal services, however, do not implicate confidential communications covered by the
privilege. This information will be released.
Regarding the identities of the clients, it is clear that the name of one, Robert J. Mellow, is already in the
public domain. Indeed, he was specifically referenced in one request. Therefore, in accordance with the
general rule that the attorney-client privilege does not protect client names, no redaction of his name is
appropriate.
As to the other four clients, we are mindful of the approach taken by our Supreme Court in Chmiel and
by our Superior Court in Slusaw: if the invoices contain any references to confidential communications,
those references will be redacted. Having approved those redactions and thereby removed all
references to confidential communications from the invoices, we conclude that the Senate did not show
"a strong probability that [further] disclosure would implicate [the] client in [the] criminal activity for
which client sought legal advice." Chmiel, 585 Pa. at 599, 889 A.2d at 531-32. Accordingly, we conclude
the general rule applies; thus, the names of the other four clients are not protected by the attorneyclient privilege, and redaction of the names is not appropriate.
3. Waiver
For reasons described above, it is useful to examine the position of the Restatement (Third) of The Law
Governing Lawyers as to those persons covered by the attorney-client privilege. The purpose of this
inquiry is to determine whether the involvement of the Chief Clerk of the Senate in receipt and payment
of legal invoices for members and employees under the COMO Policy works a waiver of the attorneyclient privilege.
The topic is generally addressed by Section 70 of the Restatement, titled "Attorney-Client Privilege'Privileged Persons.'" Privileged persons include agents of either the client or the lawyer who facilitate
communications between them and agents of the lawyer who facilitate the representation.
Restatement (Third) of The Law Governing Lawyers §70 (2000). Comment e provides in part that "If the
third person is an agent for the purpose of the privilege, communications through or in the presence of
that person are privileged; if the third person is not an agent, then communications are not in
confidence ... and are not privileged." Restatement (Third) of The Law Governing Lawyers §70 cmt. e
(2000).
Comment f addresses a client's agent for communications. One such agent is described as follows (with
emphasis added):
The privilege applies to communications to and from the client disclosed to persons who hire the
lawyer as an incident of the lawyer's engagement. Thus, the privilege covers communications by
a client-insured to an insurance-company investigator who is to convey the facts to the client's
lawyer designated by the insurer, as well as communications from the lawyer for the insured to
the insurer in providing a progress report or discussing litigation strategy or settlement. Such
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situations must be distinguished from communications by an insured to an insurance
investigator who will report to the company, to which the privilege does not apply.
Restatement (Third) of The Law Governing Lawyers §70 cmt. f (2000).
Here, pursuant to the COMO Policy, the Senate hires the lawyer for the member or employee. Indeed,
contracts for legal services are formalized with an engagement letter signed by both the Senate and the
attorney or law firm providing services. R.R. at 62a; see, e.g., R.R. at 105a-06a. The attorney or law firm
is required to submit periodic invoices to be paid. R.R. at 63a-64a. Thus, the invoices involve
communications in the nature of a progress report from the lawyer incident to the lawyer's engagement
made to persons who hired the lawyer. Under these circumstances, we have no difficulty finding that
the Senate officers and staff who administer the COMO Policy function as the client's agents for
communications. We therefore conclude that confidential communications through those persons are
privileged. As a result, we reject Levy's waiver argument.
D. Conclusion
For the foregoing reasons, we affirm in part and reverse in part the final decision of the Senate Appeals
Officer. We reverse as to the names of the clients and, in accordance with the recommendations of our
special master, as to general descriptions of legal services. Consequently, those redactions cannot stand.
However, in accordance with the recommendation of our special master, we affirm as to the specific
descriptions of legal services that implicate confidential communications.
ROBERT SIMPSON, Judge
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Notes:
1. Judge Leavitt recused herself after argument. Judge Butler is substituting for Judge
Leavitt and is considering the case on briefs.
2. Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104. The Law repealed the former Rightto-Know Law, Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§66.1-66.4.3
3. Section 102 of the Law, 65 P.S. §67.102, defines "Legislative record" to include a financial record
relating to a legislative agency. Similarly, "Legislative agency" is defined to include "The Senate."
Section 1301 of the Law, 65 P.S. §67.1301, provides that appeals from a final determination of
an appeals officer relating to a decision of a legislative agency shall be taken to the
Commonwealth Court.
4. The Senate Appeals Officer also briefly addressed the arguments raised by the Senate for the
first time in its legal memorandum. The Appeals Officer decided there was insufficient record
information to determine that grand jury secrecy should attach, that the records were exempt
as relating to a criminal investigation, or that the attorney-work product doctrine protected
client identity or the purpose or reason a client engaged an attorney.
5. Both parties offer extensive and animated procedural arguments stemming from the timing of
the appeal, the Senate's failure to file supplemental affidavits or produce unredacted records,
and the Senate's failure to appeal or cross-appeal. We deem these procedural arguments moot
in view of our case management order, and they will not be discussed further.
6. The policy was produced by the Senate as part of its Supplemental Reproduced Record. In the
absence of objection, we take judicial notice of the policy. Pa.R.E. 201(c), (f); Bowling (reviewing
court may supplement record to ensure adequate review).
7. In Pennsylvania, the attorney-client privilege is codified by statute:
§ 5928. Confidential communications to attorney
In a civil matter counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled to disclose the
same, unless in either case this privilege is waived upon the trial by the client. 42 Pa. C.S. §5928.
Pennsylvania codified the privilege in 1887. See Act of May 23, 1887, P.L. 158, § 5d (formerly 28
P.S. §321). The statutory provision regarding privilege was reenacted in 1976 without
substantive changes, as quoted above.
Similarly, in the context of a criminal case:
§ 5916. Confidential communications to attorney
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In a criminal proceeding counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled to disclose the
same, unless in either case this privilege is waived upon the trial by the client. 42 Pa. C.S. §5916.
8. See Informal Op. No. 94-119, 1994 WL 928075 (Sept. 6, 1994); Informal Op. No. 90-174, 1990 WL
709683 (Dec. 17, 1990). Informal Opinion No. 94-119 relied on Informal Opinion No. 90-174 for
the proposition that revealing information without the client's permission, even the fact of
representation, is prohibited by Rule 1.6 of the Rules of Professional Conduct. Informal Opinion
No. 90-174 relied on language in former Disciplinary Rule DR 4-101 that expressly prohibited a
lawyer from revealing "a confidence or secret of his client, including his identity ... (emphasis
provided)." However, the language relied upon was not made part of the current Rule 1.6 of
Professional Conduct or the Comment to the Rule 9.
9. Both of the informal advisory opinions contain the following caveat:
Th[is] ... opinion is advisory only and is not binding on the Disciplinary Board of the Supreme
Court of Pennsylvania or any court. It carries only such weight as an appropriate reviewing
authority may choose to give it. Moreover, this is the opinion of only one member of the
Committee and is not an opinion of the full Committee.
10. But see Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510 (Pa. Super. 1980) (en banc)
(petition for contempt arising in child custody litigation; attorney-client privilege protects home
address where client asks attorney to keep information confidential).
11. The Restatement provides the following example regarding this exception:
Client consults Lawyer about Client's taxes. In the consultation, Client communicates to Lawyer
Client's name and information indicating that Client owes substantial amounts in back taxes. The
fact that Client owes back taxes is not known to the taxing authorities. Lawyer sends a letter to
the taxing authorities and encloses a bank draft to cover the back taxes of Client. Lawyer does so
to gain an advantage for Client under the tax laws by providing a basis for arguing against the
accrual of penalties for continued nonpayment of taxes. Neither Lawyer's letter nor the bank
draft reveals the identity of Client. ... In a grand-jury proceeding investigating Client's past failure
to pay taxes, Lawyer cannot be required to testify concerning the identity of Client because, on
the facts of the Illustration, that testimony would by reasonable inference reveal a confidential
communication from Client, Client's communication concerning Client's nonpayment of taxes.
Restatement (Third) of The Law Governing Lawyers §69 cmt. g, illus. 6 (2000).
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52 A.3d 456
July 25, 2012
Reporter’s summary: The term “personal” can include documents with an official purpose that
are created for personal use if the document is not circulated to other individuals in an official manner.
Headnotes:
Case law – Though a document may have an official purpose, it can fall under the personal exemption.
The law was intended to be broad due to the usage of the phrase “other materials.” Easton Area School
District v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmwlth. 2012).
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52 A.3d 456; No. 944 C.D.2011.
Argued Feb. 15, 2012, Argued
July 25, 2012, Filed
OPINION BY PRESIDENT JUDGE PELLEGRINI
The Philadelphia Inquirer (The Inquirer) appeals from an order of the Court of Common Pleas of
Philadelphia County (trial court) granting the City of Philadelphia's (City) appeal from the decision of the
Office of Open Records (OOR) and vacating the decision of the OOR directing the City to release certain
records consisting of calendars of public officials to The Inquirer under the Right–to–Know Law (RTKL)1.
For the reasons that follow, we affirm the trial court's decision.
In 2009, Jeff Shields (Shields), a reporter for The Inquirer, sent two requests to the City under the RTKL.
The first request was addressed to the City's Office of the Mayor and requested “copies of the Mayor's
daily schedule” from June 1, 2009, up through the time the request was fulfilled and was to include
“appointment logs, calendars, or whatever names the Mayor's office gives its daily itinerary, including
public events and private meetings. To be clear, this would be far more inclusive than the daily public
schedule put out by your office.” (Reproduced Record at 29a.) The second request was addressed to the
Philadelphia City Council and requested copies of “all 17 City Council members' daily schedules” for the
same period of time. (Reproduced Record at 31a.) In an attempt to clarify the request, an email was sent
by the City's Law Department to Shields asking if the request sought an “official schedule[s]” or
“something along the lines of their personal desk calendars.” (Reproduced Record at 33a.) Shields
responded that he “was looking for the schedule generated by the Mayor and each Council office that
details any appointments involving city business or public appearances attended in their role as an
elected official.” Id. He stated that he did not seek personal appointments but did seek “private
meetings with lobbyists, other public officials, or members of the public, to name a few.” Id. Shields
confirmed that he sought any paper calendars kept “if that's how the office organizes the daily
appointments.” Id.
The City's Law Department responded by denying the two requests citing in each instance the “working
papers” exemption2, the “pre-decisional deliberations/strategy exemption,”3 and the “personal security”
exception.”4 The denial was also based on Section 708(b)(2), 65 P.S. § 67.708(b)(2)5, related to law
enforcement and public safety activities. The Inquirer appealed both denials to the OOR, which assigned
the matter to an OOR Appeals Officer who, in turn, directed the City to supplement the record to
support its assertion that the records were exempt from disclosure. The City submitted the affidavit of
Charles Ramsey, Police Commissioner for the City, to support its arguments regarding the “personal
security” and “public safety” related to the Mayor's calendar. Specifically, the Commissioner attested to
his professional judgment that release of the Mayor's full daily calendar, including past schedules,
“would be reasonably likely to result in a substantial and demonstrable risk to the personal security of
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the Mayor and the police detail assigned to protect him, including the risk of physical harm. An
individual determined to harm or otherwise confront the Mayor could use the past schedules to discern
certain patterns of travel, as well as the security procedures used to protect the Mayor.” (Reproduced
Record at 129a.)
The OOR issued a final determination granting the two appeals finding that the daily schedules
requested by The Inquirer did not qualify as work papers under Section 708(b)(12) because they were
not prepared solely for the Mayor's personal use, were provided to the police officers to coordinate the
Mayor's protection, pertained to official business and official appointments of the Mayor and/or City
Council Members and were not temporary records. “Rather, the daily schedules as described are
accessible by the public officials' offices, staffs, and in the Mayor's case, security detail, to keep track of
the public officials' daily activities.” (OOR's October 13, 2009 decision at 5a.) The OOR also found that
because the City did not provide evidence regarding City Council Members' maintenance of their
personal calendars and whether they were shared with, accessed or used by any City staff, the City
failed to meet its burden of proof to show that the exception applied to them. The OOR further found
the daily schedules were not protected under Section 708(b)(10) as “predecisional
deliberations/strategy” because the City did not submit any evidence to show that the daily schedules
were part of the City's internal communications or decision-making processes.
As for Section 708(b)(2) relating to law enforcement and public safety activities, the OOR concluded that
the Mayor's schedule was not in and of itself a law enforcement record. Additionally, the fact that the
request sought past daily schedules was significant because absent proof of a pattern, which the City did
not assert, the information relayed in the daily schedules regarding the Mayor's prior activities or
meetings did not reveal information people could use to target or threaten the Mayor. Finally, regarding
Section 708(b)(1)(ii) relating to the personal security exception, the OOR explained that under the RTKL,
the standard required the City to prove that the release of the requested daily schedules would be
“reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal
security of an individual.” Because the City only alleged that a threat “could” exist, which was
insufficient to establish the personal security exception, it could not protect the Mayor's or City Council
Members' daily schedules6.
The City appealed to the trial court and upon review of the record, the trial court found that the City
failed to provide the information necessary for the OOR to have conducted a thorough and appropriate
review. Previously, the City had only submitted one affidavit from the City Police Commissioner
regarding the Mayor. The trial court ordered the City to submit by affidavits the factual and legal
grounds to support the exemptions claimed, which it did—two affidavits were submitted on behalf of
the Mayor and two affidavits were submitted for each City Council Member7.
Relying on Bureau of National Affairs, Inc. v. United States DOJ, 742 F.2d 1484 (D.C.Cir.1984), a case
under the Federal Freedom of Information Act, 5 U.S.C. § 552(b)(5)8, the trial court determined that the
Mayor's calendar and the 17 City Council Members' calendars were exempt under the Section
708(b)(12) working papers exemption under the RTKL. It did so because the Mayor and the City Council
Members were elected public officials who did not work for one agency and the calendars were for their
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personal use. The trial court did not address the predecisional exception or personal security exception
raised by the City that calendars were not disclosable. The Inquirer then filed an appeal with this Court9.
The Inquirer contends that the trial court erred in finding that the daily schedules of the Mayor and the
City Council Members were exempt under the RTKL's “working papers” exception. The City disagrees
and argues that the trial court properly relied on the reasoning in Bureau of National Affairs, a case
where the District of Columbia Circuit Court found desk appointment calendars to be exempt from
disclosure under the federal Freedom of Information Act based on the “purpose for which the document
was created, the actual use of the document and the extent to which the creator of the document and
other employees acting within the scope of their employment relied upon the document to carry out
the business of the agency.” 742 F.2d 1484, 1493.
Section 708(b)(12), 65 P.S. § 67.708(b)(12), provides:
Notes and working papers prepared by or for a public official or agency employee used solely for
that official's or employee's own personal use, including telephone message slips, routing slips
and other materials that do not have an official purpose.
The purpose of the calendars as set forth by the affidavits personal to the Mayor and City Council
Members are used for scheduling their daily activities and fall within the “notes and working papers”
exception. Under this provision, a public official is not the only person required to prepare or see the
calendar because the exception specifically includes within the definition of working papers “papers
prepared by or for the public official.” “Personal” within this definition does not mean that it has to
involve a public official's personal affairs—a message slip that his wife called—because those types of
documents are not covered by the RTKL, Easton Area School District v. Baxter, 35 A .3d 1259 (Pa. Cmwlt
h.2012); it covers those documents necessary for that official that are “personal” to that official in
carrying out his public responsibilities. This is illustrated by defining “routing slips” as “working papers,”
even those routing slips transmitting documents that may have an official purpose. Much like a
calendar, a routing slip may have the subject of the documents transmitted and who is going to receive
them, which is similar to a calendar notation of the subject of a meeting and who is going to attend.
Moreover, by definition, the routing slip is “personal” to the official even though it is routing public
documents. Also akin to a calendar, a telephone message may indicate with whom a person had a
“phone meeting”—a constituent or the Governor or an Inquirer reporter—yet, by definition, are not
considered personal to the official even though in answering those phone calls, the official is carrying
out his public office. Just like a telephone message slip and a routing slip, calendars serve a similar
purpose and are “other materials” that fall within the notes and working papers exclusion.
The reasoning in Bureau of National Affairs, Inc. relied on by the trial court, though decided under the
predecisional exception contained in the federal Freedom of Information Act, is helpful in deciding
which calendars are personal and which are not under the notes and working papers exception. That
case distinguished daily agendas, which were created for the express purpose of facilitating daily
activities of a division, which were circulated to all staff for business purposes, from appointment
calendars retained solely for the convenience of individual officials and did not have general
distribution. After reviewing the affidavits, we agree with the trial court that the requested documents
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are appointment calendars 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 daily schedule/calendar of the Mayor and City Council Members are
exempt from disclosure10.
Accordingly, the order of the trial court is affirmed.
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Notes :
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
2.
Section 708(b)(12) of the RTKL, 65 P.S. § 67.708(b)(12), provides in pertinent part, that among
items exempt from access by a requester are:
Notes and working papers prepared by or for a public official or agency employee used solely for
that official's or employee's own personal use, including telephone message slips, routing slips
and other materials that do not have an official purpose.
3. Section 708(b)(10)(i)(A) and (B) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A) and (B), provides in
pertinent part, that among items exempt from access by a requester is a record that reflects:
(A) The internal, predecisional deliberations of an agency, its members, employees or officials or
predecisional deliberations between agency members, employees or officials and members,
employees or officials of another agency, including predecisional deliberations relating to a
budget recommendation, legislative proposal, legislative amendment, contemplated or
proposed policy or course of action or any research, memos or other documents used in the
predecisional deliberations.
(B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative
proposal or regulation.
4. Section 708(b)(1)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii), provides in pertinent part, that among
the items exempt from access by a requester is a record, 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.
5. 708(b)(2) of the RTKL provides, in pertinent part, that among the items exempt from access by a
requester is:
A record maintained by an agency in connection with the military, homeland security, national
defense, law enforcement or other public safety activity that, if disclosed would be reasonably
likely to jeopardize or threaten public safety or preparedness or public protection activity or a
record that is designated classified by an appropriate Federal or State military authority.
6. The OOR determined that pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, the records
sought had to be in existence at the time of a request. Therefore, only the Mayor's and City
Council Members' past daily schedules from June 1, 2009, through July 14, 2009, were properly
sought. The parties did not dispute this on appeal.
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7. The first set of affidavits stated the following:
a. The requested records, which consist of _ daily personal schedule, contain entries which
reflect the internal, predecisional deliberations of _ office, as I understand this term.
b. These select records, which may contain more than just factual information, reflect the
deliberative process used by _ office.
c. These select records also reflect the strategy used or to be used to develop or achieve
successful adoption of a budget or legislative proposal, and were created prior to any decision.
d. The records are internal to _ office, and are not disseminated or available outside of _ office.
Paragraph (d) of the Mayor's affidavit had the addition, “․, beyond what is necessary to ensure
the security of the Mayor.” The second set of affidavits stated the following:
a. The requested records, which consist of _ daily personal schedule, were created for _ own
personal use, and are solely for personal convenience in scheduling _ daily activities. These
records contain a mix of personal and business appointments, there is no official purpose for
their creation and are not an official document or record of _ schedule.
b. These records were created with the intent to retain them solely with _ office, and were
never intended for general distribution.
c. Beyond the requirement that these records be trained for the purpose of this litigation, all
records such as these have always been retained or disposed of at _ discretion.
d. Because of the unofficial nature of these records, as well as the possibility that _ schedule
may change at any given moment, no member of this office relies upon these documents for
any aspect of their employment. In instances where _ schedule changed, the corresponding
record entry may not have been updated to reflect this change.
e. These records are kept on the City of Philadelphia computer system, this is done strictly as a
matter of convenience.
f. Access to these records is limited to select individuals in the _ office. No one beyond these
select individuals may access these records, including anyone from outside this office.
(Trial court's April 11, 2011 decision at 3–4.) The trial court, in a footnote, observed that “Of the
Council Members who submitted affidavits 9 used the city computer system; 2 used a
combination of the computer system and paper; 3 used paper only and 2 used Google calendar
not integrated with City computer.” Id.
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8. 5 U.S.C. § 552(b)(5) deals with the deliberative process/executive privilege, which “protects
agency documents that are both predecisional and deliberative.” Abdelfattah v. U.S. Dep't of
Homeland Sec., 488 F.3d 178, 183 (3d Cir.2007).
9. Our standard of review in a RTKL case is whether an error of law was committed, constitutional
rights were violated, or necessary findings of fact are supported by substantial evidence. Chester
Community Charter School v. Hardy ex rel. Philadelphia Newspaper, LLC, 38 A.3d 1079, 1082 n. 4
(Pa.Cmwlth.2012). Our scope of review is plenary. Id.
10. Based on the way we have decided the first issue, we need not address The Inquirer's remaining
issues.
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120 C.D. 2012
January 16, 2013
Reporter’s summary: The Commonwealth Court considered an appeal based on the required
specificity of records requested. The court held that requested records must be limited in time and scope.
A request with an open-ended time frame that is overly broad will be denied for a lack of specificity.
Requests for records which would require forming a legal conclusion as to the content of those records
must also be denied under the Right-to-Know Law.
Headnotes:
Specificity – Under section 703, a request must be sufficiently specific as to allow the agency to deter
what is being requested and contained to a definitive time frame.
Case law –
In determining whether a request satisfies the statutory specificity requirement, “the specificity
of a request must be construed in the request’s context, rather than envisioning everything the
request might conceivably encompass.” Montgomery County v. Iverson, 50 A.3d 281, 283 (Pa.
Cmwlth. 2012) (en banc).
A “request was sufficiently specific” in Department of Environmental Protection v. Legere, 50
A.3d 260 (Pa. Cmwlth. 2012), because the documents are created by DEP pursuant to a state
statute and “there are no judgments to be made as to whether the documents are related to the
request.”
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Anthony Askew, petitioner, v. Pennsylvania Office of the Governor, respondent
120 C.D. 2012
September 28, 2012, Submitted
January 16, 2013, Issued
OPINION PER CURIAM
Anthony Askew (Requester) petitions, pro se, for review of the December 6, 2011 final determination of
the Office of Open Records (OOR) upholding the denial of his request for certain information from the
Pennsylvania Office of the Governor (Office) under the Pennsylvania Right to Know Law (RTKL).1
On October 22, 2011, Requester submitted a second written request for information2 to the Office,
seeking:
[A]ny Certified copies of the Senate & House bills ratified and presented to any past or present
Governor of the Commonwealth of Pennsylvania, who, in turn, provided jurisdiction over the
site or Borough where 1010 Maple Avenue, apartment #2, Turtle Creek, PA 15145 is located.
The Governor’s relinquishment of jurisdiction would have been for the purpose of punishing
Commonwealth Citizens 2 for alleged federal offenses in violation of any law of the United
States on or before July 8, 2003.
Notice of Acceptance of Jurisdiction would have come from the Attorney General of the United
States who would have held office on or before July 8, 2003. I have enclosed a copy of a case
from the Supreme Court of the United States on whose authority I am relying (Adams v. United
States). Said case specifically, clearly, and unambiguously exhibits the information I request
regarding jurisdiction ceded to the United States in accordance with [40 U.S.C. §255].
(Request, 10/22/2011, at 1.) As part of his request, Requester attached a copy of the United States
Supreme Court’s decision in Adams v. United States, 319 U.S. 312 (1943).
By letter dated October 28, 2011, the Office denied the request, stating that it was not sufficiently
specific under section 703 of the RTKL, 65 P.S. §67.703. The letter advised Requester that the timeframe provided was too broad; that a legal conclusion and research would be required to determine
whether a Governor “provided jurisdiction” over the location; that the reference to the alleged basis to
relinquish jurisdiction did not add specificity to the request; and, finally, that documents from 2003
were no longer in the custody, possession or control of the Office, but had been forwarded to the State
Archives.
Requester filed an appeal to the OOR. On December 6, 2011, the OOR issued a final determination and
upheld the Office’s denial of the request. Like the Office, the OOR concluded that the request lacked
specificity. Particularly, the OOR reasoned:
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In the present case, the OOR is unable to discern what records are being sought. While the
Request appears to seek certified copies of Senate or House bills, the Request provides little
clarity as to which particular bills are desired. The OOR has previously held that the RTKL does
not require agencies to “render either a legal or factual opinion on an issue in response to a
right-to-know request.” Donohue v. Hazelton Area School District, OOR Dkt. AP 2011-1056, 2011
PA O.O.R.D. Lexis 736. The general description of the content of the requested legislation
appears to require such a legal or factual opinion as to whether the bill(s) either provided
jurisdiction over a particular property or was created for “the purpose of punishing
Commonwealth Citizens for alleged federal offenses.” Based on a review of the request, the
OOR finds that the Office properly denied access pursuant to 65 P.S. §67.703.
(OOR Final Determination, 12/06/2011, at 3-4.)
Requester then filed a timely petition for review with this Court.
On appeal,3 Requester argues that his request was specific enough to enable the Office to ascertain and
locate the documents that he requested. Requester contends that his request did not require the Office
to render a legal opinion but to simply locate a particular law. Requester further asserts that “[r]esearch
is involved with each and every request” and that “a search has to be made” with respect to any request
for a record. (Requester’s Motion to Compel Compliance, at 3.)4 For these reasons, Requester contends
that his request was sufficiently specific. We disagree.
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.…” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), appeal granted in
part, 609 Pa. 265, 15 A.3d 427 (2011).
In pertinent part, section 703 of the RTKL provides that a request for records “should identify or
describe the records sought with sufficient specificity to enable the agency to ascertain which records
are being requested.” 65 P.S. §67.703. In determining whether a request satisfies this statutory
requirement, this Court is mindful that “the specificity of a request must be construed in the request’s
context, rather than envisioning everything the request might conceivably encompass.” Montgomery
County v. Iverson, 50 A.3d 281, 283 (Pa. Cmwlth. 2012) (en banc).
We conclude that Requestor’s request lacks specificity because it is open-ended in terms of a
timeframe, overly broad in the scope of documents sought, and cannot be satisfied without conducting
legal research to form the basis of a legal opinion.
Initially, Requester’s request for bills dated “on or before July 8, 2008” is virtually unlimited as to
timeframe. In Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa. Cmwlth. 2011), the requestor
sought documents from the Township of Worcester, including “(1) all emails between the Supervisors
regarding any Township business and/or activities for the past one [to] five years; and (2) all emails
between the Supervisors and the Township employees regarding any Township business and/or
activities for the past one [to] five years.” In finding that the request was unspecific, this Court noted
that it was important for a request to contain a limited timeframe, stating in relevant part that “it would
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place an unreasonable burden on an agency to examine all its emails for an extended time period,” i.e.,
for the past one to five years. Id. Cf. Easton Area School District v. Baxter, 35 A.3d 1259, 1265 (Pa.
Cmwlth. 2012) (“Unlike in Mollick, though, the request here was not for years but for 30 days….”). In
Montgomery County, an en banc panel of this Court addressed a request for “all email records to and
from” one mail domain and four other mail domains where the subject body of the email contained any
one of fourteen terms. Relying on Mollick, this Court found that the request was insufficiently specific, in
part, because the request “provides no timeframe with regard to the emails it seeks.” 50 A.3d at 284.
Here, Requester’s request is not limited by a definite timeframe and includes purported legislation
dating from when our Commonwealth joined the United States in 1787 until July 8, 2003. Pursuant to
Mollick and Montgomery County, Requester’s request is overly broad in terms of delineating a practical
time-frame and does not satisfy the specificity requirement of section 703 of the RTKL.
Additionally, Requester’s request for bills and/or records that “provide,” “relinquish,” and “accept”
jurisdiction is vague as to the scope of documents sought in connection with the request. In
Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 515-16 (Pa. Cmwlth. 2010), a request
was made, in pertinent part, for “[a]ny and all records, files, or … communication(s) of any kind, that
explain, instruct, and or require officer(s) and Trooper(s) to follow when stopping a Motor Vehicle” and
seizing property pursuant to a search. This Court concluded that:
[w]hat is overbroad … is the first clause of the request, which begins, ‘Any and all records, files,
or … communication(s) of any kind….’ The portion of the request seeking any and all records,
files or communications is insufficiently specific for the [agency] to respond to the request.
Id. at 517. Similarly, in Pennsylvania Housing Finance Agency v. Ali, 43 A.3d 532, 533 (Pa. Cmwlth. 2012),
the requester sought a “[c]opy of all correspondence, including proposal and sales agreements,
concerning item 4C Project Workout — Chestnut/56th Street Apartments found on the PHFA February
10, 2011 Agenda and, or distributed to the Board.” This Court concluded that the phrase seeking “all
correspondence … concerning … and/or distributed to the Board” was unspecific because it
incorporated too many different kinds of potential documents. Id. at 535.
Here, Requester seeks “any” form of legislation that “provides” jurisdiction. Given the vagueness of the
request, the document(s) that allegedly “provided” jurisdiction may take the form of a bill that is passed
by either the House or Senate, both the House and Senate, the General Assembly and merely
“presented” to the Governor, and/or the General Assembly and signed into law by the Governor.
Concerning the request for records where the Governor “relinquished” and the Attorney General
“accepted” jurisdiction, Requester does not specify the kind of medium (e.g., an enacted law or a
particular legal document) in which these purported records would be located; as a result, the Office is
asked to search the vast universe of legislation and legal documents without any limiting criteria.
Because Requester fails to sufficiently identify the types of records in which his request would be
located, he essentially requests the Office to locate “any and all laws and/or legal documents related to
the providing, relinquishment and acceptance of jurisdiction over the location.” Therefore, akin to the
requests in Ali and Pennsylvania State Police, Requester’s request is insufficiently specific for the Office
13c-4
Commonwealth Court
to respond because it is overly broad and encompasses a wide-range of legal documents and types of
legislation.
Finally, Requester’s request for bills that “provide” jurisdiction where the “acceptance” of jurisdiction is
accomplished pursuant to Adams and/or 40 U.S.C. §255 requires both legal research and analysis. The
OOR has repeatedly held that a request to conduct legal research renders the request unspecific. Aliota
v. Millcreek Township, OOR Dkt. AP 2012-1351 (filed September 7, 2012); Glance v. Fairview Township,
OOR Dkt. AP 2009-0674 (filed September 2, 2009). Although this Court has yet to endorse or reject that
proposition, we conclude that a request necessitating the performance of traditional legal research and
analysis to form the basis of a legal opinion makes the request unspecific in nature.5 Indeed, a request
that explicitly or implicitly obliges legal research is not a request for a specific document; rather, it is a
request for someone to conduct legal research with the hopes that the legal research will unearth a
specific document that fits the description of the request.
Here, Requester’s request asks the Office to conduct legal research with respect to Adams and/or 40
U.S.C. §255 in order to ascertain what Requester is seeking. Even if the Office did not have to conduct
legal research on Adams or 40 U.S.C. §255, the Office would still have to perform a considerable amount
of legal research and analysis to locate and identify those laws and/or legal documents that are
responsive to Requester’s request, i.e., the laws and/or documents that have the legal effect of
“providing” and “relinquishing” jurisdiction. Therefore, Requester’s request lacks specificity on the
additional basis that it necessitates traditional legal research and analysis, not only to ascertain that
which is being requested, but also to determine whether a particular law and/or document possesses
the legal significance necessary to make it responsive to the request.
Our analysis and result is consistent with Department of Environmental Protection v. Legere, 50 A.3d 260
(Pa. Cmwlth. 2012). In that case, a requestor sought all Act 223, section 208 determination letters issued
by the Department of Environmental Protection (DEP) since January 1, 2008. On appeal, this Court
concluded that the request was sufficiently specific because the documents are created by DEP pursuant
to a state statute and “there are no judgments to be made as to whether the documents are related to
the request. The documents either are or are not section 208 determination letters.” 50 A.3d at 264-65.
In contrast to Legere, where the DEP could look at the face of the document and readily discern whether
it is a section 208 determination letter, in this case legal research and analysis are necessary to analyze
Requester’s request and determine whether a particular document effectively “provided” or
“relinquished” jurisdiction. Accordingly, the request in Legere is not comparable to Requester’s request.
For the above-stated reasons, we conclude that Requester’s request lacks specificity as required by
section 703 of the RTKL. Accordingly, we affirm the final determination of the OOR upholding the denial
of Requester’s request.
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Commonwealth Court
Notes
1. Act of February 14, 2008, P.L. 6, 65 P.S. §67.101-§67.3104.
2. Requester previously sent a request to the Office that was similar to his second request, but the
Office denied that request on October 19, 2011, because it lacked specificity.
3. We independently review a determination of the OOR and may substitute our own findings of
fact for that of the agency. Our scope of review is plenary. Hodges v. Pennsylvania Department
of Health, 29 A.3d 1190, 1192 n.6 (Pa. Cmwlth. 2011).
4. Requester’s appellate brief incorporates by reference his “Motion to Compel Compliance,”
which has the characteristics of an appellate brief and was previously filed and accepted by this
Court as a petition for review. To any extent that Requester’s Motion to Compel Compliance is
deficient as an appellate brief under our Rules of Appellate Procedure, we disregard the
noncompliance because our ability to conduct effective appellate review is not hampered. See
Richardson v. Pennsylvania Insurance Department, __ A.3d __ (Pa. Cmwlth., No. 941 C.D. 2011,
filed September 12, 2012), slip op. at 8-9 (reiterating that this Court will not dismiss an appeal
because a pro se brief fails to comply with the Rules of Appellate Procedure where the noncompliance does not impede our ability to conduct meaningful appellate review).
5. We note that the idea that a request lacks specificity if it requires legal research is not a novel
one and has been embraced by our sister courts. See, e.g., Bart v. Passaic County Public Housing
Agency, 968 A.2d 187, 191 (N.J. Super. Ct. App. Div. 2009); West v. Jackson, 448 F. Supp. 2d 207,
212 (D.D.C. 2006).
13c-6
Supreme Court of Pennsylvania
65 A.3d 361
April 24, 2013
Reporter’s Summary: The Supreme Court determined that an agency may bring up new reasons for
denial on appeal and overturned the decision in Signature Information Solutions, LLC v. Aston Township.
The court remanded the case for further consideration in the Commonwealth Court.
Headnotes:
Appeals process: It is proper for an appeals officer or court to consider information that goes beyond
merely supporting the original denial of a record.
See, also, Levy v. Senate of Pa. (Pa. Cmwlth., No. 2222 C.D. 2010, filed August 5, 2013) and Levy v.
Senate of Pa., 94 A.3d 436 (Pa. Cmwlth., 2014).
Note: This case overturns the ruling in Signature Information Solutions, LLC. v. Aston Township, 995
A.2d 510 (Pa.Cmwlth.2010) by allowing an agency to bring up new grounds for denial on appeal.
14c-7
Marc Levy v. Senate of Pennsylvania
SUPREME COURT OF PENNSYLVANIA
April 24, 2013, Decided
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
In this appeal, we consider the interaction of the attorney-client privilege and the Right–to–Know Law,
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104 (“RTKL”), in a case involving a journalist's
request for documents relating to the legal representation of Senate Democratic Caucus employees.
After review, we reaffirm the general rule that client identities are not protected by the attorney-client
privilege but adopt specified exceptions to this general rule. Similarly, we affirm the Commonwealth
Court's determination that general descriptions of legal services included in attorney invoices are not
covered by the umbrella of the attorney-client privilege but that specific descriptions that would reveal
attorney-client communications are protected. Additionally, we reverse the Commonwealth Court and
overturn its decision in Signature Information Solutions, LLC. v. Aston Township, 995 A.2d 510
(Pa.Cmwlth.2010), to the extent it determined that any reasons for denial not raised in the initial written
denial of a RTKL request are waived and cannot be raised at a later stage of the RTKL process.1
I. Background
On June 22, 2010, Associated Press member Marc Levy sent two written requests to the Senate's Right
to Know Officer seeking “all bills, contracts and payment records related to the hiring of any outside
lawyer or law firm to represent Sen. Robert J. Mellow beginning Jan. 1, 2009” and the same documents
related to “any current or former employee of the Senate Democratic caucus beginning Jan. 1, 2009.”
Letters of Marc Levy, June 22, 2010 (“Request”). The requests came a few days after the media reported
that federal authorities executed search warrants on Senator Mellow's home and office as part of a
grand jury investigation.
The Senate Open Records Officer responded on August 3, 2010, providing documents “relating to legal
services provided to Senator Mellow or any employee of Senator Mellow beginning 1/1/2009.”2 Letter
of W. Russell Faber, Aug. 3, 2010 (“Written Denial”). The cover letter, however, stated that the
documents had been redacted to protect portions of the documents which the Open Records Officer
contended were covered by the attorney-client privilege in accordance with Section 305(b) of the RTKL,
which provides that records shall not be presumed to be public records subject to disclosure if “the
record is protected by a privilege.” 65 P.S. § 67.305(b)(2). The Senate supplied documents relating to
five clients, totaling nearly one hundred pages, many of which were invoices from various law firms
reflecting the attorney or paralegal's initials, dates and hours worked, and fees charged. However, large
blocks of the documents were redacted, presumably involving itemized descriptions of the work and the
clients' names.
13c-8
On August 11, 2010, Levy appealed the redactions to the Senate Appeals Officer, who hears RTKL
appeals relating to the Senate and serves the role that the Office of Open Records (“OOR”) provides for
most other Commonwealth agencies. Levy asserted that the “redactions seem to apply to [the] identity
of the client and, possibly, the reason for which the attorney is being hired. That information is not
considered under the umbrella of a ‘work product’ or a ‘privilege.’ “ Appeal Letter of Marc Levy, Aug. 11,
2010 (“Appeal Letter”). He contended that the RTKL's “intent of transparency in government is to help
ensure [that] citizens can determine whether their tax money is spent lawfully.” Id. He argued that
redacting the client identity and the reason for the legal services “renders such a determination
impossible.” Id.
On August 12, 2010, the Senate Appeals Officer, who is also the Secretary of the Senate, set a timeframe
for the parties to file a memorandum of law or other documentation. While the previous filings in the
case were brief letters, on August 19, 2010, the Senate filed a lengthy “Senate Response to the RTK
Appeal.” In this filing, the Senate observed that the RTKL provides for redaction of documents under
Section 706, 65 P.S. § 67.706 (“the agency shall redact from the record the information which is not
subject to access”). While the Senate reasserted its claim that the redactions were necessary to protect
the attorney-client privilege, it also asserted, for the first time, that some of the redacted portions were
protected from disclosure due to the work product privilege, grand jury secrecy, and the criminal
investigation exception of Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16).
Levy likewise responded with a lengthy letter brief. Levy emphasized that the RTKL places the burden on
the Senate to prove the application of any exception. Moreover, he observed that there is a
presumption of disclosure for public records, including financial documents, in the RTKL. In response to
the Senate's attorney-client privilege argument, Levy contended that the rule in Pennsylvania and
elsewhere provides that a client's identity and billing records are not protected unless disclosure would
reveal confidential communications between the client and attorney. Levy further addressed and
rejected the merits of the Senate's claims that the documents were not subject to disclosure due to the
work product privilege, grand jury secrecy, and the criminal investigation exception, the merits of which
are not relevant to this appeal.
On September 16, 2010, the Senate Appeals Officer made his final determination. The Officer observed
that under Pennsylvania law, the party asserting the attorney-client privilege has the burden to prove
that the privilege has been properly invoked. In accord with that prerequisite, the Officer concluded that
the Senate had demonstrated that each of the asserted holders of the privilege sought to become a
client of an attorney, communicated that to an attorney, and that all of the clients were asserting rather
than waiving the privilege. The Officer, however, could not determine whether the Senate had
demonstrated the other necessary criteria for attorney-client privilege: whether the communication of
the client seeking the attorney's representation was made “without the presence of strangers” and “not
for the purpose of committing a crime or tort.”3 Final Determination of Sept. 16, 2010, at 8. As a result,
the Senate Appeals Officer provided the Senate with the opportunity to provide sworn affidavits or
other probative evidence to address those issues but did not set a date by which the Senate had to file
the ordered documents. The Officer also noted that the Senate raised additional reasons for the
redactions based on the work product privilege, grand jury secrecy, and criminal investigation
13c-9
exceptions. He concluded, however, that the Senate failed to demonstrate the necessary factual
predicate for assertion of those exceptions.
On October 15, 2010, when the Senate had not filed any additional documents, Levy filed a Petition for
Review in the Commonwealth Court asking the court to reverse that portion of the Senate Appeals
Officer's Final Determination in which he concluded that “portions of billing records containing the
names of Senate clients and descriptions of legal services performed on their behalf are protected by
the attorney-client privilege.” Levy's Petition for Review at 4. Following a volley of filings seeking to
strike portions of briefs and alert the Commonwealth Court to this Court's recent decision in Gillard v.
AIG Insurance Co., 15 A.3d 44 (Pa.2011)(holding that the attorney-client privilege applied to
communications from attorney to client as well as from client to attorney), the Commonwealth Court
entered an order instructing the Senate to file the affidavits and documents ordered in the Senate
Appeals Officer's Final Determination. Additionally, the court ordered the Senate to “bring to the Court
for in camera review unredacted copies of all records at issue.” Commonwealth Court Order of May 31,
2011. The Commonwealth Court appointed Senior Judge Kelley as a special master to review the
documents.
The Senate filed an application for clarification of the May 31st order to determine if it could satisfy the
order by filing one affidavit from “a person with knowledge” or if it must file one affidavit per client.4
Following the court's order approving the filing of a single affidavit, the chief counsel for the Senate
Democratic Caucus filed an affidavit asserting that the redacted communications in the records of each
of the five clients were made in the absence of strangers and were not made for the purpose of
committing a crime or tort. He further asserted that the redactions were limited to “client identity and
the purpose or reasons why various attorneys were engaged in order to protect information subject to
the attorney-client privilege, the work product privilege, grand jury secrecy rules and the ‘criminal
investigation’ exception set forth in Section 708(b)(16) of the Right–to–Know Law.” Affidavit of C.J.
Hafner, at 2.
Following the in camera review on June 23, 2011, Judge Kelley issued a report under seal, which was
later vacated by the Commonwealth Court. In regard to client identities, Judge Kelley observed that the
Senate conceded that Senator Mellow's name should not be redacted because the legal action involving
him was in the public domain. The judge concluded that the issue of whether the remaining four clients'
identities, whose names had not been publicly revealed, should be deemed protected by the attorneyclient privilege was a question of law for the Commonwealth Court to determine.
Turning to the descriptions of legal services, Judge Kelley noted that the Senate argued that revelation
of the legal descriptions would disclose legal strategy and investigation details that would reveal
confidential communications between the client and the attorney. Judge Kelley agreed with the Senate
but only “[t]o the extent that the documents specify the issues or laws researched by the attorneys,
specific services provided and the names of individuals with whom the attorneys communicated”
because that information could reveal confidential communications and litigation strategy, which is
privileged. Levy v. Senate of Pennsylvania, 34 A.3d 243, 257 (Pa.Cmwlth.2011)(Report of Special Master).
Conversely, he concluded that general descriptions of legal services, such as “memo,” “telephone call,”
or “research” were not protected by the attorney-client privilege. Judge Kelley provided a chart of the
13c-10
relevant documents indicating his recommendations for which redactions should remain in place to
protect attorney-client privilege and which redactions should be removed.
In October, 2011, an en banc panel of the Commonwealth Court issued its decision accepting Judge
Kelley's recommendations as supplemental findings and conclusions of the en banc panel. Opening its
discussion with a very brief two-sentence analysis, the Commonwealth Court concluded that the Senate
had waived all its alternate bases for redaction, such as attorney-work product, grand jury secrecy, and
the criminal investigation exceptions, by failing to raise them in its initial Written Denial of Levy's
Request, citing its decision in Signature Information, 995 A.2d 510.
Turning to the attorney-client privilege argument, the court recognized that the long-standing privilege
was “in tension with the purpose of the [RTKL], which is remedial legislation designed to promote access
to official government information.” Levy, 34 A .3d at 248. It observed that under the RTKL, legislative
records are presumed to be public records, except that a document protected by a privilege is excluded
from the definition of public records. Considering the Senate's assertion of privilege, the court reiterated
the general rule that client identities are not protected by the attorney-client privilege. Id. at 250–51
(relying upon, inter alia, In re Seip's Estate, 30 A. 226 (Pa.1894); Beeson v. Beeson, 9 Pa. 279, 1848 WL
5605 (Pa.1848)). Similarly, the court determined that descriptions of legal services generally were not
protected. The court, however, considered a “legal advice” or “confidential communications” exception
to the general rule. While no Pennsylvania state court has applied such an exception, the
Commonwealth Court noted that other courts have found one when “so much of the actual
communication had already been established, that to disclose the client's name would disclose the
essence of a confidential communication.” Id. at 252 (quoting United States v. Liebman, 742 F.2d 807,
809 (3d Cir.1984)).
Applying the general rule and the exception to the documents reviewed by Judge Kelley in camera, the
Commonwealth Court affirmed the redaction of “specific descriptions of legal services which implicate
confidential communications between the clients and the attorneys.” Levy, 34 A.3d at 254. It concluded,
however, that general descriptions are not protected by attorney-client privilege because they do not
reveal confidential communications. Turning to client identities, the court recognized that redaction was
not appropriate as to Senator Mellow, as his name was already revealed in the original document
request. Considering the other four clients, the court concluded that their names were not subject to
the confidential communications/legal advice exception because all references to confidential
communications or legal advice had already been redacted from the invoices and other documents.
Upon the Senate's petition for allocatur, we granted review to consider three issues: (1) whether client
identity is protected by the attorney-client privilege, (2) whether descriptions of legal services are
protected by the attorney-client privilege, and (3) whether an agency waives any reasons for nondisclosure that were not raised in the initial written denial. All of the questions presented in this case are
questions of law. Therefore, our standard of review is de novo and our scope of review is plenary. See
Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa.2012).
II. Attorney–Client Privilege
13c-11
The first two issues involve the attorney-client privilege and whether it protects client identities and
descriptions of legal services from disclosure under the Right to Know Law. The RTKL is a relatively new
law effective in 2009, which replaced the Right to Know Act and significantly expanded public access to
governmental records, including financial records of legislative agencies such as the Senate of
Pennsylvania, with the goal of promoting government transparency. See infra at 32–34, 65 P.S. § 67.303
(“A legislative agency shall provide legislative records in accordance with this act.”).
The RTKL, however, specifically exempts privileged documents from disclosure by defining public
records subject to disclosure as “[a] record, including a financial record, of a Commonwealth or local
agency that ․ is not protected by a privilege.” 65 P.S. § 67 .102; see also 65 P.S. § 67.305(a) (“A record in
the possession of a Commonwealth agency or local agency shall be presumed to be a public record. The
presumption shall not apply if ․ the record is protected by a privilege.”). Similarly, Section 305(b)
provides that a “legislative record in the possession of a legislative agency ․ shall be presumed to be
available in accordance with this act,” but that the presumption “shall not apply if ․ the record is
protected by a privilege.” 65 P.S. § 67.305(b).5 The RTKL defines privilege to include “[t]he attorney-work
product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate
privilege or other privilege recognized by a court interpreting the laws of this Commonwealth.” 65 P.S. §
67.102. While an agency “may exercise its discretion to make any otherwise exempt record accessible,”
it does not have such discretion if the record is privileged. 65 P.S. § 67.506(c)(2). Accordingly, there is no
dispute that if the client identities and descriptions of legal services at issue in this case are protected by
the attorney-client privilege, then they are likewise protected from disclosure under the RTKL.
Accordingly, we must consider the applicability of the attorney-client privilege generally.
This Court has repeatedly noted that the attorney-client privilege “is deeply rooted in our common law”
and is “the most revered of our common law privileges.” Commonwealth v. Maguigan, 511 A.2d 1327,
1333 (Pa.1986). The General Assembly has defined attorney-client privilege identically for purposes of
criminal and civil law: “In a criminal proceeding [or civil matter] counsel shall not be competent or
permitted to testify to confidential communications made to him by his client, nor shall the client be
compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.”
42 Pa.C.S. §§ 5916, 5928. We recently observed that the purpose of the attorney-client privilege “is to
encourage full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice.” Gillard, 15 A.3d at 47 n.
1 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); see also id. at 57. We acknowledged,
however, that the attorney-client privilege is often in tension with the truth-determining process of the
justice system, id. at 57, and, in this case, with the RTKL's goal of government transparency. In balancing
these competing purposes, we note that not all information passed between client and attorney is
privileged, but rather the privilege is limited to communications related to the legal advice sought by the
client. Paul R. Rice, Attorney–Client Privilege in the United States, § 6:14 (2012).
A. Client Identities
Turning to the issues presented in the case at bar, both parties agree that client identities generally are
not protected by the attorney-client privilege. Additionally, while acknowledging that this Court has not
13c-12
spoken directly to the issue, both parties accept the availability of exceptions to this general rule in
cases where the disclosure of the client's identity would reveal legal advice or confidential
communications under some specific factual scenarios. The Senate, however, asserts that the
Commonwealth Court improperly limited the exception to criminal contexts when it quoted this Court's
decision in Commonwealth v. Chmiel, 889 A.2d 501, 531–32 (Pa.2005) (plurality, in relevant part) (citing
a federal case “holding attorney-client privilege does not protect fee arrangements absent strong
probability that disclosure would implicate client in criminal activity for which client sought legal
advice”). Instead, the Senate favors a holding that “the attorney-client privilege protects client identity
(or any information for that matter) when revealing it would likely expose confidential communications
or legal advice.” Brief for Senate at 16.
The Senate also argues that the Commonwealth Court erred in its application of the exception in regard
to at least one client, where the relevant documents, with the client's name redacted, contained a
subject line referencing a grand jury investigation.6 The Senate argues that revealing the client's identity
could only “implicate that particular client in the criminal activity that is the subject of the grand jury
investigation for which the client sought legal advice.” Brief of Senate at 17. The combination of the
client's identity and the scope of the representation, according to the Senate, would reveal confidential
communications of the client to the attorney, in essence that the client is “involved (either as a witness,
subject, or target) in a grand jury investigation.” Id. The Senate continues that “the identity was only
communicated in confidence and was expected to remain confidential; thus, by any fair standard, it
should remain confidential and privileged.” Id. Moreover, the Senate contends that revelation of the
client's name would violate the purpose of the attorney-client privilege because it would reveal
information that would not exist but for the client's assumption that the attorney -client privilege was in
force. It argues that once the client's name is known “there is nothing left to reveal to know why the
client sought advice of counsel.” Reply Brief of Senate at 7.7
Conversely, Levy contends that the court correctly set forth and applied the rule to this case, holding
that none of the client identities were privileged because the confidential communications had been
redacted from the documents previously. In regard to the documents referencing the grand jury
investigation, Levy rejects the Senate's argument that the client's name in conjunction with “grand jury
investigation” is tantamount to a confidential communication. Instead, Levy maintains that merely
knowing that the communication involved a grand jury investigation does not disclose confidential
communications between the client and the attorney, regarding strategy or legal tactics. Levy also
argues that the mere fact that a client is seeking counsel regarding a grand jury investigation does not
implicate the client in criminal activity, as is relevant to some of the exceptions described below. He
notes that the Senate acknowledges that a client could be seeking legal advice if he or she were a grand
jury witness, without being implicated in criminal aspects of the grand jury investigation. Levy also
rejects any suggestions that the privilege should apply because the clients had an expectation that their
identities would not be revealed. Levy argues that there “can be no reasonable expectation that the
Commonwealth will keep its finances secret from the general public.” Brief for Levy at 21 n. 4 (quoting
Pa. State Univ. v. State Emps. Ret. Bd., 935 A.2d 530, 540 (Pa.2007)).8
13c-13
Like many other jurisdictions, this Court has previously held that client identities are not protected by
the attorney-client privilege because the identity of the client is rarely relevant to the legal advice
sought. In re Seip's Estate, 30 A. at 227 (“The mere fact of employment is not privileged; but, from the
nature of the relation between client and counsel, it is open to inquiry in any court in which the counsel
appears as such.”). Conceptually, the privilege requires a relationship between an attorney and a client
such that the identity of the client is a prerequisite to the existence of the privilege. R.M. Weddle,
Annotation, Disclosure of Name, Identity, Address, Occupation, or Business of Client as Violation of
Attorney–Client Privilege, 16 A .L.R.3d 1047, § 2 (2012). Moreover, in many situations courts have
concluded a client's identity is not protected because litigants have a right to know their opposing party.
Id.
Many courts, including the Superior Court and the Court of Appeals for the Third Circuit, have concluded
that client identities, while generally not privileged, should be protected in limited circumstances. Courts
have applied exceptions to the general rule where, under unusual facts of a specific case, revelation of
the client's identity would reveal information otherwise protected by the attorney-client privilege, thus
undermining the privilege's purpose of encouraging open communication between attorney and client.
The exceptions fall into the overlapping categories of “confidential communication,” “legal advice,” and
“last link.”
The confidential communication and legal advice exceptions both address factual scenarios where
information has been previously disseminated beyond the client and attorney about the facts of a case
supplied to the attorney by the client, legal advice given to the client by the attorney, or other
confidential communications between the client and attorney, where the opposing party is unaware of
the identity of the client. The Court of Appeals for the Third Circuit described this exception as applying
“where so much of the actual attorney-client communication has already been disclosed that identifying
the client amounts to full disclosure of the communication.” United States v. Liebman, 742 F.2d 807, 809
(3d Cir.1984); see also N.L.R.B. v. Harvey, 349 F.2d 900, 905 (4th Cir.1965); Baird v. Koerner, 279 F.2d
623, 632 (9th Cir.1960).
These exceptions arise occasionally in tax cases where the attorney has interacted with the taxing
authority on behalf of a client, without naming the client, regarding issues that could result in fines or
criminal penalties if the name of the client were divulged. See Rice, § 6:16 (citing, inter alia, Baird, 279
F.2d 623 (applying privilege where lawyer provided legal advice and forwarded money to the Internal
Revenue Service for an anonymous client for payment of back taxes to avoid the assessment of
penalties in the event of an audit)). The Court of Appeals for the Third Circuit in Liebman held that
clients' identities were privileged in a case where the Internal Revenue Service sought the names of
clients who had paid monies to attorneys in connection with obtaining information about specific tax
shelters, which the IRS contended were not tax-deductible attorney fees but, instead, brokerage fees.
The court noted that disclosure of the clients' names would reveal confidential advice about tax shelters.
The court continued, “it is the previously revealed confidence, not the fact of potential criminal
prosecution, which accounts for the privilege.” Liebman, 742 F.2d at 810 (emphasis in original, quoting
Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 473 n. 4 (3d Cir.1979)); see also In
13c-14
the Matter of Witnesses Before The Special March 1980 Grand Jury, 729 F.2d 489, 494–5 (7th Cir.1984);
In re Horn, 976 F.2d 1314, 1317 (9th Cir.1992) (internal quotations omitted).
While largely overlapping and sometimes used interchangeably with the confidential
communication/legal advice exceptions, the “last link” exception has been questioned because it
focuses not on the confidentiality of the attorney-client relationship and the client's reason for seeking
the legal advice but, instead, on the potential negative consequences to the client if the identity is
revealed. Rice, § 6:17. It has been described as applying where “the disclosure of the client's identity by
his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead
to the client's indictment.” In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982).
In deciding which if any of these exceptions to adopt, we note that the purpose of the attorney-client
privilege is to encourage clients to provide information freely to their attorneys to allow the attorney to
give “sound and informed advice” to guide their clients' actions in accordance with the law. Upjohn, 449
U.S. at 390. As the privilege encourages clients to speak openly with their counsel, we recognize that in
many cases, “[t]he privileged communications kept from the court do not really represent a ‘loss' of
evidence since the client would not have written or uttered the words absent the safeguards of the
attorney-client privilege.” Rice, § 2:3; see also Gillard, 15 A.3d at 57. We are further cognizant that to
attain the privilege's goals, “the attorney and client must be able to predict with some degree of
certainty whether particular discussions will be protected. An uncertain privilege ․ is little better than no
privilege at all.” Upjohn, 449 U.S. at 393.
Consistently with many of our sister courts, we hold that, while a client's identity is generally not
privileged, the attorney-client privilege may apply in cases where divulging the client's identity would
disclose either the legal advice given or the confidential communications provided. Cf. Maguigan, 511
A.2d at 1334 (recognizing in dicta the potential application of the attorney-client privilege to a client's
location, which is not generally privileged, if “the information sought went to the heart of the legal
advice sought by the client.”). We do not adopt the “last link,” or some of the framings of the other
categories of exceptions, because of their focus on the potential negative consequences of the
disclosure rather than on whether exposing the identity will divulge otherwise protectable information.
While we do not view the Commonwealth Court's articulation of the exception below as limited to
criminal cases, we affirmatively hold that the exception applies in both civil and criminal cases.
Application of the exception, however, will involve case specific determinations of whether revealing the
otherwise non-privileged identity will result in the disclosure of privileged information based upon what
has been previously disclosed.
As applied to this case, the Senate only seeks application of the exception as to a handful of documents.
The first document is a letter from counsel to the client with a subject line of “Re: Grand Jury
Investigation.” R.R. at 140a–41. The letter is a confirmation of the counsel's agreement to represent the
client, whose name the Senate redacted. Significantly, as found by Judge Kelley as Special Master, the
Senate redacted approximately seven lines of text involving the “specific nature of representation,” and
those redactions were affirmed by the Commonwealth Court. See Levy, 34 A.3d at 260. The letter
continued with detailed, but generic, information about counsel's hourly rate and other details of
charges and billing procedures. The letter further notes that, while the Senate will pay the legal fees
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“during the ongoing investigation,” the unnamed client is the client rather than the Senate. R.R. at 140a.
Additionally, the letter states, “I do not owe a duty of loyalty and confidentiality to anyone but you.” Id.
Given the substantial redactions of confidential communications in the body of the document, we hold
that the Commonwealth Court correctly concluded that there was no need to redact the client's name.
Nothing was revealed other than the fact of counsel's engagement and that it related to a grand jury
investigation.
The other three documents for which the Senate seeks redaction of the client's name are a Senate
Expense Voucher indicating a request for payment of nearly $6,000 of “legal services” without any
indication of the content of the legal services, R.R. at 142a; a two sentence letter from the client to the
Chief Clerk of the Senate approving payment of the law firm's invoice, R.R. at 143a; and the invoice
referenced in the previous two documents merely indicating the dates and charges without further
description of the content or purpose of the attorney's work, R.R. at 144a. We agree with the
Commonwealth Court that these documents do not involve the disclosure of privileged legal advice or
confidential communications that would allow for the protection from disclosure of the client's name.
Accordingly, we affirm the Commonwealth Court's decision on this issue.
B. Descriptions of Legal Services
The Senate maintains that the Commonwealth Court erred in its statement of the law regarding the
applicability of the attorney-client privilege to descriptions of legal services, such as those in the invoices
in the case at bar. It contends that the Commonwealth Court set forth a blanket rule that “fee
agreements and billing records are generally subject to disclosure,” when our caselaw has provided that
the records are subject to disclosure only when they do not reveal confidential communications
between the attorney and client. Brief for Senate at 17 (quoting Levy, 34 A .3d at 251). The Senate,
however, acknowledges that the Commonwealth Court applied the correct rule in the case at bar,
approving numerous redactions of confidential communications in the invoices. Indeed, the Senate does
not specifically request any additional redactions of the invoices. Instead, the Senate felt compelled to
appeal because “as a recipient of numerous RTKL requests, it needs certainty as to what the bounds of
the law are and what is and is not subject to privilege.” Brief for Senate at 18 n. 10.9
Levy asserts that the Commonwealth Court did not set forth a per se rule as suggested by the Senate,
but rather properly adopted Judge Kelley's line-by-line analysis of sixty separate redactions made by the
Senate, of which many were approved. Levy contends that the Commonwealth Court's holding is
consistent with the opinion of dissenting members of this Court in Schenck v. Township of Center, Butler
County, 975 A.2d 591, 599 (Pa.2009) (Saylor, J. dissenting from per curiam affirmance), who opined that
billing records should not be provided a blanket exception under the attorney-client privilege but
instead should be subject to in camera review to determine if privileged confidential communications
would be disclosed. Levy notes that the Senate does not challenge any specific voiding of a redaction
such that there does not appear to be a conflict on this issue.
Despite the Senate's protestations, we do not view the Commonwealth Court as setting forth a per se
rule that descriptions of legal services are not protected by attorney-client privilege. Rather, we approve
the Commonwealth Court and its Special Master Judge Kelley's careful line-by-line analysis of the
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content of the invoices. As with our analysis of client identities, the determination of the applicability of
the attorney-client privilege does not turn on the category of the information, such as a client's identity
or address, or the category of a document, such as whether it is an invoice or fee agreement. Instead,
the relevant question is whether the content of the writing will result in disclosure of information
otherwise protected by the attorney-client privilege. Cf. Chmiel, 889 A.2d at 531–32; Maguigan, 511
A.2d at 1334. For example, descriptions of legal services that address the client's motive for seeking
counsel, legal advice, strategy, or other confidential communications are undeniably protected under
the attorney client privilege. In contrast, an entry that generically states that counsel made a telephone
call for a specific amount of time to the client is not information protected by the attorney-client
privilege but, instead, is subject to disclosure under the specific provisions of the RTKL. As the Senate
does not contest any individual redaction of the invoices, we affirm the decision of the Commonwealth
Court on this issue.
III. Signature Information Rule
The next issue before this Court is whether an agency waives any reasons for denial not raised in its
initial written denial in response to a RTKL request. In this case, although the Senate initially only raised
attorney-client privilege as the reason for redacting documents, it presented the Senate Appeals Officer
with additional reasons for protecting the documents, based on the attorney-client work product
doctrine, grand jury secrecy, and the “criminal investigation” exception set forth in Section 708 of the
RTKL, 65 P.S. § 67.708(b)(16). The Senate Appeals Officer found these assertions failed due to lack of
factual support. The Commonwealth Court affirmed on a different basis, holding that the Senate had
waived these additional reasons when it failed to include them in its original Written Denial to Levy. The
court cited its recent decision in Signature Information for the proposition that any reasons not raised in
the initial written denial are deemed waived per se. The Senate presently argues that the Signature
Information Rule is a flawed, judicially-created waiver rule and asks this Court to overturn the
Commonwealth Court's caselaw in this regard.
Before delving into the parties' arguments, we first consider the RTKL's procedure relevant to this case.
Chapter Five of the RTKL addresses access to records and provides that each agency have an open
records officer to keep track of requests filed with the agency. 65 P.S. § 67.502. The next section
provides that the OOR shall designate an appeals officer to hear appeals from the open records officer's
decision for all Commonwealth and local agencies, except for judicial, legislative, and other specified
agencies that must designate their own appeals officers. 65 P.S. § 67.503
Chapter Seven sets forth the procedure for requests and access to documents. It provides that a
requester may file requests either verbally or in writing; however, if the requester wishes to utilize the
procedures of the act, the request must be written. 65 P.S. § 67.702; see also § 67.703 (describing the
details of a written request). While other sections of this chapter address issues unrelated to those
presented herein, Section 706 provides that if an agency determines that a document contains
information that is “not subject to access” under the RTKL, then the agency should redact that
information and provide access to the rest of the document. Any redacted information will be deemed a
denial for purposes of the RTKL.
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Section 708 addresses “exceptions” from disclosure of records. As with documents protected by a
privilege discussed above and those protected by other state or federal laws, the RTKL excludes a variety
of documents in Section 708 from the definition of “public record” and from the presumption that a
document is a public record subject to disclosure. 65 P.S. §§ 67.102, 67.305. Section 708 provides that
the burden of proving that a record is “exempt from public access shall be on the legislative agency
receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a)(2). Subsection (b) of this
section presents an extensive list of thirty exceptions, many with multiple subparts, spanning nearly
eight pages of the relevant statutory volume. While the applicability of some of the exceptions requires
little analysis, such as DNA or RNA records, other exceptions require more subtle consideration, such as
whether disclosure of the record “creates a reasonable likelihood of endangering the safety or the
physical security of a building, public utility, resource, infrastructure, facility or information storage
system.” 65 P.S. §§ 67.708(b)(19), (3).
As relevant to our ultimate analysis, while many of the exceptions are intended to protect matters
involving public safety, a number of the exceptions shield the disclosure of personal information held by
the governmental agency such as “an individual's medical, psychiatric or psychological history or
disability status,” social security and drivers' license numbers, home addresses of law enforcement
officers and judges, academic transcripts, records of a criminal investigations including “[v]ictim
information ․ that would jeopardize the safety of the victim,” information that would disclose a
confidential source, including those covered under the Whistleblower Law, DNA and RNA records, an
individual's library circulation records, or a “record identifying the name, home address or date of birth
of a child 17 years of age or younger.” 65 P.S. §§ 67.708(b)(5), (6), (15), (16)(v), (17)(iii), (19), (23), (30).
Chapter Nine of the RTKL addresses the agency's response to a request. Section 901 provides that an
agency has five days from the date a written request is received by the open-records officer to respond
to the request. If the agency does not act within those five days, the request is deemed denied. 65 P.S. §
67.901. However, the agency may utilize an extension of up to thirty additional days if the agency
determines that one of seven situations applies, including that the request requires the redaction of
documents or that “a legal review is necessary to determine whether the record is a record subject to
access under the act.” 65 P.S. § 67.902(a). The agency, however, must notify the requester that the
request is being reviewed, the reason for the review, and an expected response date. 65 P.S. §
67.902(b). If the agency believes the review will take longer than thirty days, the request shall be
deemed denied unless the requester agrees in writing to an additional, specified extension. 65 P.S. §
67.902(b). As particularly relevant to the issue upon appeal regarding whether the agency must list all its
reasons for denial in its written response, the RTKL provides as follows:
If an agency's response is a denial of a written request for access, whether in whole or in part, the denial
shall be issued in writing and shall include:
(1) A description of the record requested.
(2) The specific reasons for the denial, including a citation of supporting legal authority.
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(3) The typed or printed name, title, business address, business telephone number and signature of the
open-records officer on whose authority the denial is issued.
(4) Date of the response.
(5) The procedure to appeal the denial of access under this act.
65 P.S. § 67.903.
Chapter Eleven sets forth the appeal process of an agency determination. Within fifteen days of the
denial or deemed denial, a requester may appeal to the OOR or, as in this case, the judicial, legislative or
other appeals officer. 65 P.S. § 67.1101(a)(1). “The appeal shall state the grounds upon which the
requester asserts that the record is a public record, legislative record or financial record and shall
address any grounds stated by the agency for delaying or denying the request.” 65 P.S. § 67.1101(a)(1).
The appeals officer then has thirty days to issue a final determination or the appeal is deemed denied.
65 P.S. § 67.1101(b). The officer must also set a schedule for the parties to submit documents and may
hold a hearing as needed. 65 P.S. §§ 67.1101(b), 1102(a). The decision is a final order. 65 P.S. §
67.1101(b).
The next chapter, Chapter Thirteen, provides for judicial review.10 In the case of a decision of an appeals
officer related to a Commonwealth, legislative, or judicial agency, the agency or the requester has thirty
days to “file a petition for review or other document as might be required by rule of court with the
Commonwealth Court.” 65 P.S. § 67.1301.11 The section further provides that the court's decision “shall
contain findings of fact and conclusions of law based upon the evidence as a whole.” 65 P.S. § 67.1301.
“The record before a court shall consist of the request, the agency's response, the appeal filed under
section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.”
65 P.S. § 67.1303(b) (footnote omitted). In addition to other provisions, the RTKL provides, “A court may
impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad
faith.” 65 P.S. § 67.1305.
With this background, we consider the Senate's argument that the Commonwealth Court erred in
continuing to apply the Signature Information Rule. In Signature Information, 995 A.2d 510, the
Commonwealth Court considered a case involving a requester seeking documents related to a
township's real estate taxes. The township denied the request under Section 704 of the RTKL, which
provides that “an agency may respond to a request by notifying the requester that the record is
available through publicly accessible electronic means.” 65 P.S. § 67.704. The requesters appealed to the
OOR, which provided the parties seven days to submit additional information. Outside of the seven day
period, the township provided an “explanation” claiming that it denied the request because Section 705
of the law provides that “an agency shall not be required to create a record which does not currently
exist or to compile, maintain, format or organize a record in a manner in which the agency does not
currently compile, maintain, format or organize the record.” 65 P.S. § 67.705. The OOR Appeals Officer
concluded that the township improperly denied the request.
When the case reached the Commonwealth Court, that court considered Section 903(2), requiring the
agency to provide the “specific reasons for the denial” in the initial written denial, Section 1101(a)(1),
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providing that the requester's appeal “shall address any grounds stated by the agency” for denial, and
Section 1102, directing the appeals officer to set a schedule for the parties to “submit documents in
support of their positions.” 65 P .S. §§ 67.903(2), 67.1101(a)(1), 67.1102. The court concluded, “section
1102(a) of the Law does not permit an agency that has given a specific reason for a denial to assert a
different reason on appeal. Section 1102(a) of the Law permitted the Township only to submit
documents in support of its stated position.” Signature Information, 995 A.2d at 514 (emphasis
removed). The court opined that if an agency “could assert any improper reason for the denial of a rightto-know request and would not have to provide an arguably valid reason unless and until the requester
filed an appeal,” it “would make a mockery of the process set forth in the Law.” Id. The Commonwealth
Court held: “It is not fair or just to a requester to allow an agency to alter the reason given for a denial
after the requester has taken an appeal based on the stated reason” and that “permitting an agency to
set forth additional reasons for a denial at the appeal level does not allow for an expeditious resolution
of the dispute.” Id. The Commonwealth Court has repeatedly enforced this rule to prohibit agencies
from presenting new reasons at the appeal officer stage.
The Senate contends that the Signature Information Rule is contrary to the RTKL. The Senate asserts that
the language of the RTKL does not support the holding that only an agency's “stated” reasons for denial
can be furthered on appeal. Instead, the Senate observes that the RTKL requires that the agency's
written denial include the “specific reasons for the denial” without requiring that the agency include
“all” the specific reasons nor does the section provide for waiver of any reasons not raised. See 65 P.S. §
67.903(2). It notes that Section 1102(a)(1) provides that the appeals officer set a schedule for the parties
to submit documents “in support of their positions,” which it views as not limited to previously “stated”
positions. The Senate further notes that the proceeding before the appeals officer is “the first neutral
review of an agency's denial” and more “akin to the trial court process of any ordinary dispute where no
one party is yet entrenched in a position or could be prejudiced by ‘new’ arguments.” Brief of Senate at
25. It suggests that the written denial stage is more akin to the period before a plaintiff files a complaint
in an ordinary lawsuit. The Senate, nevertheless, asserts that an agency must raise all its challenges
before “the appeals officer closes the time for submissions” and “takes the matter under advisement.”
Brief for Senate at 25–26 n. 17.
The Senate also rejects the Commonwealth Court's suggestion in Signature Information that, if allowed
to later amend its rationales, agencies will assert improper reasons for denial initially and “would not
have to provide an arguably valid reason unless and until the requester filed an appeal.” 995 A.2d at
514. The Senate notes that the rule is not needed to counteract this argument because the RTKL
specifically provides sanctions for bad faith actions of agencies which would cover the situation
envisioned.
The Senate responds to another premise of Signature Information: that permitting an agency to raise
additional reasons for denial will result in delay and prejudice. The Senate contends that the addition of
new arguments on appeal will not result in additional prejudice and delay because, regardless of the
number or age of the reasons for denial of access, the appeals officer must render his or her decision
within thirty days of the appeal pursuant to Section 1101(b)(1). Further, the Senate contends that the
Signature Information Rule will add delay because an agency will be forced to utilize the thirty-day
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extension of time allowed for legal review under Section 902(a)(4) to ensure that it includes all possible
reasons for denial in its written denial, rather than merely offering an immediately apparent reason for
denial within the initial five-day period. Moreover, the Senate maintains that a requester would not be
prejudiced by the addition of new reasons for denial because the appeals officer may set a schedule to
allow the requester to submit documents. It maintains that “[t]here is nothing to prevent the appeals
officer from soliciting briefing first from the agency, and thereafter permitting the requester to fully
respond.” Brief for Senate at 28 (emphasis removed).
The Senate also contends that the Commonwealth Court's rule has created an improper two-track
appeals process for written denials versus deemed denials. It observes that, in at least one decision, the
OOR refused to apply the Signature Information Rule to a case involving a deemed denial where no
reasons had previously been asserted, but instead held that the rule only prevented agencies from
changing their reasons for non-disclosure on appeal. See Brief of Senate at 22 (citing Bray v.
Montgomery County, No. AP 2010–1218, slip op. (OOR Jan. 24, 2011)).12 It argues that the Signature
Information Rule provides an incentive for agencies to remain silent and deem a request denied rather
than risk waiver of reasons not raised in a written denial, which is contrary to the disclosure purposes of
the RTKL.
Moreover, the Senate continues that the per se Signature Information Rule results in the forced
disclosure of records which the General Assembly specifically shielded from disclosure under the RTKL,
such as those protected by a privilege, citing 65 P.S. §§ 67.102, 67.305(b)(2), 67.506(c)(2).13 Indeed, it
maintains that the rule led to an absurd result in Signature Information when the court ordered the
agency to create a record, despite the contrary provisions of Section 705, because the agency failed to
assert initially that the requested record did not exist in a single source. As a second example, the
Senate contends that it would be irrational to allow privileges to be overcome by a ministerial act of
failing to list a privilege in the written denial when the agency is otherwise forbidden from intentionally
disregarding the privileges under Section 506(c)(2). 65 P.S. § 67.506(c)(2). Accordingly, the Senate
asserts that the Signature Information Rule is misguided and unnecessary and should be overturned.14
Levy, in contrast, urges that we affirm the Commonwealth Court's continued application of the
Signature Information Rule and find any reasons not raised in the agency's initial written denial waived.
He argues that the language of the statute provides that the written denial “shall include ․ [t]he specific
reasons for the denial,” which Levy views as requiring the Senate to raise all the specific reasons at that
stage. 65 P.S. § 67.903(2). Levy rejects the argument that the language does not specify waiver as a
sanction for failing to raise all reasons for nondisclosure. Instead, Levy focuses on the mandatory term
“shall” and argues that if we adopt the Senate's reading of the statute, we will be in essence reading
“shall include..[t]he specific reasons for the denial” to have no meaning. Levy contends that the
Signature Information Rule is consistent with Section 1101(a)(1) which provides that the requester “shall
address any grounds stated by the agency for delaying or denying” the request. Levy maintains that this
section would be rendered meaningless if the agency can assert new reasons for denying the records
after the requester has filed its appeal. Additionally, Levy looks to the next section, Section 1102(a),
providing that an appeals officer shall set a schedule for the parties “to submit documents in support of
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their positions.” Levy argues that this language clearly refers to their established positions and not to
new arguments raised before the appeals officer.
Levy rejects the Senate's arguments as hinging on flawed policy-based concerns. Levy first attempts to
undermine the Senate's argument that the Signature Information Rule improperly creates a two-track
system of appeals of written versus deemed denials. Levy contends that this conundrum does not
actually exist because the Commonwealth Court has not addressed the question of waiver of reasons for
denial in a standard deemed denial case, even if the OOR is permitting supplementation in such cases.
Moreover, Levy contends that there is no threat that agencies would methodically utilize the deemed
denial option because of the potential for sanctions to agencies acting in bad faith, 65 P.S. § 67.1305(a).
Levy also rejects the Senate's implication that the period for the initial written denial of the agency is a
rushed period involving ministerial acts similar to the pre-complaint period in a standard trial, such that
waiver should not apply. Instead, Levy observes that this stage is not ministerial but a critical function of
the RTKL, involving twelve statutory sections. Additionally, he argues that the initial denial period is not
so brief as to forbid the imposition of a waiver rule, noting that agencies have up to thirty-five days to
determine if reasons for denial exist, whereas civil defendants are subject to waiver of any defenses not
raised within twenty days of the filing of a complaint.
To the extent the Senate contends that waiver should not be imposed until the parties come before a
neutral arbitrator at the appeals officer stage, Levy argues that the position is undercut by the fact that
in the instant case the appeals officer is not neutral but rather is the Secretary of the Senate. Under the
Senate's logic, Levy asserts that waiver would therefore not occur until after the proceedings before the
Commonwealth Court in this case, which is clearly contrary to the statutory scheme of the RTKL.
Instead, Levy contends that the per se waiver rule supports the RTKL's goal of prompt disclosure of
public records. He asserts that the Senate's interpretation allowing agencies to raise new reasons for
denial will lead to delay as it would render the initial denial period unnecessary and start the case “from
scratch on appeal.” Brief for Levy at 36. Citing several Commonwealth Court cases, Levy avers that the
Signature Information Rule provides necessary flexibility to prevent unjust results in cases involving
unique circumstances, such as when a request is insufficiently specific or when an agency merely refines
its reasons on appeal. He notes, however, that no unique circumstances are present in this case.
Trib Total Media (TTM) files an amicus curiae brief in support of Levy, stressing its interest in expedient
access to public information, which it believes is promoted by the Signature Information Rule requiring
all reasons for denial to be raised in the initial written denial thus preventing piecemeal litigation. TTM
emphasizes the remedial purpose of the RTKL and argues that any ambiguity in the statute should be
resolved in favor of the purpose of the RTKL: “open access to information, at a reasonable cost, and in a
timely manner.” Brief for TTM at 5. TTM rejects the argument that the RTKL's bad faith provisions
imposing fees and costs on agencies provide the necessary deterrence because the bad faith provisions
require the requester to hire attorneys and pursue further litigation in derogation of the purpose of the
RTKL. TTM also emphasizes that the RTKL classifies the proceeding before the appeals office as an
appeal, noting that the General Assembly is well aware of the “elementary principle of law that a party
cannot raise issues on ‘appeal’ that were not preserved.” Brief of TTM at 18.
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Our review of the Signature Information Rule requires us to interpret language of several provisions of
the RTKL. As with any question of statutory interpretation, our object is to “ascertain and effectuate the
intention of the General Assembly” and “if possible, to give effect to all [a statute's] provisions.” 1
Pa.C.S. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). When the statutory
language is ambiguous, however, we may ascertain the intention of the General Assembly by
considering such things as “[t]he occasion and necessity for the statute,” “[t]he mischief to be
remedied,” “[t]he object to be attained,” and “[t]he consequences of a particular interpretation.” 1
Pa.C.S. § 1921(c). In interpreting a statute, we presume that the General Assembly does not intend an
absurd result, to violate the Constitution, nor to favor a private interest over the public interest. 1
Pa.C.S. § 1922. Additionally, we interpret remedial legislation liberally to effect its object and promote
justice. See, e.g., 1 Pa.C.S. § 1928(c). Statutes and parts of statutes that relate to the same persons or
things must be read in pari materia. 1 Pa.C.S. § 1932.
In this case, we must determine whether the language of the RTKL addresses whether an agency waives
any reasons not raised in its initial denial of a RTKL request, specifically Section 903, addressing an
agency's denial, and Sections 1101 and 1102, governing the appeal of the decision of an open records
officer. Section 903 provides in relevant part, “If an agency's response is a denial of a written request for
access, whether in whole or in part, the denial shall be issued in writing and shall include ․ (2) The
specific reasons for the denial, including a citation of supporting legal authority.” 65 P.S. § 67.903.
Section 1101 provides that if a request is denied or deemed denied, the requester may appeal the
decision within fifteen days, and “[t]he appeal shall state the grounds upon which the requester asserts
that the record is a public record, legislative record or financial record and shall address any grounds
stated by the agency for delaying or denying the request.” 65 P.S. § 67.1101(a)(1). In turn, Section 1102
requires the appeals officer to “[s]et a schedule for the requester and the open-records officer to submit
documents in support of their positions.” 65 P.S. § 67.1102.
Analyzing the plain language of these statutes, we acknowledge that both sides present meritorious
positions. Section 903's language requires agencies to include “[t]he specific reasons for the denial.” As
noted by the Senate and its amici, the section does not specify that the agency must include “all” the
specific reasons in its initial written denial nor does it indicate that any reasons not listed are waived.
Conversely, the statute has no language to suggest that the agency may provide only some or initial
reasons for denial, nor does the RTKL provide any particular opportunity to raise additional reasons for
denial. A similar analysis can be applied to Section 1101's requirement that the requester address “any
grounds stated by the agency” and Section 1102's provision for the submission of documents “in
support of their positions.” Accordingly, we fail to ascertain from the plain language whether waiver
applies to all reasons for nondisclosure not included in an agency's Section 903 written denial and
instead determine that the language is ambiguous. Therefore, we must consider other indicators of
legislative intent including “[t]he occasion and necessity for the statute,” “[t]he mischief to be
remedied,” “[t]he object to be attained,” and “[t]he consequences of a particular interpretation.” 1
Pa.C.S. § 1921(c).
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We have recently held that the objective of the RTKL “is to empower citizens by affording them access
to information concerning the activities of their government.” SWB Yankees LLC v. Wintermantel, 45
A.3d 1029, 1042 (Pa.2012). As the Commonwealth Court has noted, the enactment of the RTKL in 2008
was a dramatic expansion of the public's access to government documents. Whereas before a requester
had the burden to prove that documents should be disclosed, the RTKL presumes documents in the
possession of an agency are public records subject to disclosure, unless protected by a specific
exception. 65 P.S. § 67.305. Indeed, Section 708 places the burden of proving an exception squarely on
the agency by a preponderance of the evidence. 65 P.S. § 67.708. These significant changes demonstrate
a legislative purpose of expanded government transparency through public access to documents.15 The
Commonwealth Court has aptly recognized that courts should liberally construe the RTKL to effectuate
its purpose of promoting “access to official government information in order to prohibit secrets,
scrutinize actions of public officials, and make public officials accountable for their actions.” Allegheny
County Dept. of Admin. Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa.Cmwlth.2011) (citation
omitted).
Additionally, as emphasized by amicus TTM, various provisions of the RTKL demonstrate an intent for an
expedited determination of RTKL requests. As noted, the agency has five days to issue its initial
determination, subject to a thirty-day extension. 65 P.S. §§ 67.901, 67.902. If the agency does not act or
receive the agreement of the requester, the request is deemed denied at the expiration of the five or
thirty-five days. Id. The requester then must appeal any denial within fifteen days, and the appeals
officer must make a final determination within thirty days. 65 P.S. § 67.1101. Again, if the appeals officer
does not act, the decision is deemed denied unless the requester agrees otherwise. 65 P.S. § 67.1101(b).
Moreover, the appeals officer is not required to hold a hearing. 65 P.S. §§ 67.1101(b), 1102(a)(2). Any
appeals from the final determination (or deemed denial) of the appeals officer must be filed within
thirty days to the Commonwealth Court or the local Court of Common Pleas. 65 P.S. §§ 67.1301, 1302.
Together, these sections provide that the parties will have the request resolved or be before an
appellate court within less than four months from the initial filing of the request for public access,
absent an agreement for an extension from the requester. The legislative intent for efficient resolution
is justifiable given that the public's interest in government documents is often time dependent.
Given the overriding legislative intent of transparency of government and speedy resolution of requests,
Levy and his amici have strong arguments in favor of the Signature Information Rule. Interpreting the
language to require an agency to raise all its reasons in its initial written denial subject to waiver
promotes increased disclosure of documents, as documents that might be protected by an exception
not initially raised will be disclosed to the requester. Moreover, waiver provides that there will be no
need for briefing or hearings on additional reasons for non-disclosure raised at subsequent stages of the
RTKL process, allowing for a speedier final determination.
Conversely, while the overriding purpose of the RTKL may relate to ensuring expanded and expedited
transparency in our government, the RTKL, nonetheless, protects from disclosure documents subject to
a privilege, exempt from disclosure under another federal or state law, or subject to any of the
exceptions expressly and painstakingly listed in Section 708(b). 65 P.S. §§ 67.102, 67.305, 67.708(b). In
these provisions, we recognize a legislative intent to shield numerous categories and subcategories of
13c-24
documents from disclosure in order to protect, inter alia, the Commonwealth's security interests and
individuals' privacy rights. As noted by the Senate and its amici, adoption of the Signature Information
Rule undermines the specific legislative intent to shield these documents from disclosure, merely as a
consequence of an open records officer's failure to list a legitimate reason for nondisclosure on the
agency's initial written denial. Indeed, the officer may have asserted what he or she thought were the
most obvious reasons for denial, and failed to consider the other eight pages of potential exceptions.
Additionally, given the specified statutory time frame for each stage of the RTKL process, there is little
concern that the addition of new reasons for non-disclosure at the appeals officer stage will effect the
speed of any ultimate decision as the appeals officer's decision must be issued within thirty days
regardless of the number of asserted reasons for denial.
Moreover, we are cognizant that the efficiency of the RTKL process arguably results in informality
bordering on lack of due process regarding the protections provided by the RTKL. Indeed, neither
hearings nor written decisions with factual findings and legal conclusions are required at any point prior
to the Commonwealth Court or the Court of Common Pleas. Members of this Court have expressed
concern over the due process afforded by the system to individuals whose private information may be
disclosed through documents in an agency's control. See Pennsylvania State Educ. Assn. v. Com., Dept. of
Community and Economic Development, 50 A.3d 1263, 1278 (Pa.2012) (Castille, J., concurring). Justices
have also noted that private entities intervening later in the proceedings as interested parties may be
limited in their ability to raise defenses to disclosure separate from the reasons originally raised by the
agency, even though the private entities were provided no notice of the original request. SWB Yankees,
45 A.3d at 1048 (Castille, J., concurring). While a person with direct interest in the record may file “a
written request to provide information or to appear before the appeals officer,” the hearing officer may
only grant the request if no hearing has been held, no decision issued, and the appeals officer believes
the information will be probative. 65 P.S. § 67.1101(c). Accordingly, there is no guarantee that
interested individuals will be heard or their objections to disclosure addressed. We note a recent
decision of the Commonwealth Court, interestingly without reference to the Signature Information Rule,
in which the court directed the OOR to remand to the relevant agency, the Gaming Control Board, to
address substantive defenses of a third party which had not been raised by the Board in its original
denial because the Board “did not have the right or authority to waive applicants' interest in keeping
their application information confidential,” pursuant to the Gaming Act. Pa. Gaming Control Bd. v. Office
of Open Records, 48 A.3d 503, 513–14 (Pa.Cmwlth.2012).
Given the ambiguity of the statutory language, the competing statutory purposes, and in light of this
Court's concern for individuals' due process rights under the RTKL, we determine that the
Commonwealth Court erred in holding that an agency waives any reasons for non-disclosure not raised
in its initial Section 903 written response. We conclude that the per se waiver rule set forth in Signature
Information and its progeny is unnecessarily restrictive. Accordingly, we reverse the Commonwealth
Court.
In sum, we affirm the decision of the Commonwealth Court regarding the applicability of the attorneyclient privilege to client identities and descriptions of legal services, but reverse the decision of the court
to the extent it applied the Signature Information Rule and found waiver of any reasons for non13c-25
disclosure not raised in the Senate's original Written Denial. Consequently, we remand for consideration
of the additional reasons for denial raised by the Senate to the Senate Appeal's Officer.
Justice BAER.
13c-26
Notes:
1. Although we also granted review to consider whether the Commonwealth Court could
supplement the factual record before it rather than remanding for additional factfinding, we
determine that the Senate waived that issue by failing to object to the Commonwealth Court's
in camera review proceedings. Moreover, we recognize that the issue of supplementation of the
record and the proper standard of review is currently pending before this Court in Bowling v.
Office of Open Records, J–71–2011.
2. While Levy initially questioned whether the Senate provided documents related only to
“employees of Senator Mellow” as opposed to “any current or former employee of the Senate
Democratic Caucus” as Levy requested, further proceedings not relevant to the issues before
this Court reveal that the Senate supplied the appropriate documents.
3. The Appeals Officer rejected Levy's assertion that the attorney-client privilege was waived when
the invoices were forwarded to the Chief Clerk of the Senate for payment. The Commonwealth
Court affirmed this determination, and the issue has not been raised before this Court. Levy v.
Senate of Pennsylvania, 34 A.3d 243, 254–5 (Pa.Cmwlth.2011).
4. The Senate does not appear to have objected to the process of in camera review generally.
Therefore, although we granted review in part to consider the Senate's challenge to this
process, we now determine that the Senate waived this issue.
5. A legislative record includes, inter alia, financial records. 65 P.S. § 67.102.
6. The Senate refers specifically to documents 140a–41 a, 143a, 144a, 145a–46a in the Reproduced
Record.
7. Numerous amici curiae have filed briefs in this case. The Pennsylvania School Boards Association
takes a more extreme position than does the Senate, arguing that an entire document is exempt
from disclosure if part of it is privileged because the RTKL defines a “public record,” which is
subject to disclosure, as a document that is “not protected by a privilege.” 65 P.S. § 67.102.
While we note that this argument would seemingly make the redaction provisions of the RTKL
superfluous, we do not address this argument as it was not raised by the Senate. The Republican
and Democratic Caucuses of the Pennsylvania House of Representatives also file an amicus brief
concurring with the Senate on this issue.
8. The Pennsylvania Newspaper Association submits an amicus curiae brief in support of Levy on
this issue.
9. The Republican and Democratic Caucuses of the Pennsylvania House of Representatives file a
brief addressing this issue. The Caucuses raise the concern that if attorney-client privilege does
not extend to legal descriptions in invoices then there will be an unnecessary tension between a
desire to have detailed billing statements permitting agencies to scrutinize the expenses paid
with public funds versus an inclination toward summary invoices to prevent the disclosure of
privileged information. To prevent the need for attorneys to review the invoices for privileged
information, the Caucuses recommend a prophylactic rule that all descriptions of legal services
should be redacted. Amicus curiae Pennsylvania School Boards Association also files a brief on
this issue.
10. The RTKL currently includes only odd numbered chapters.
13c-27
11. For appeals related to local agencies, the agency or requester may file a petition for review or
other document with the court of common pleas of the relevant county. 65 P.S. § 67.1302.
12. The Bray decision is available on the OOR website at: http:// dced.state.pa.us/openrecords/final-determinations/ FileHandler.ashx? ID=4208.
13. See supra at 9–10.
14. The Pennsylvania School Boards Association and the Governor's Office of General Counsel file
separate amicus curiae briefs, each voicing a concern, inter alia, that the Signature Information
Rule could allow the disclosure of individuals' personal information, arguably violating
constitutional rights, due to a ministerial mistake of an agency's open records officer failing to
raise the appropriate exception. The Republican and Democratic Caucuses of the House of
Representatives also submit a brief in support of the Senate on this issue.
15. We have previously observed that the following sections of the RTKL have also been cited as
supporting a legislative intent for broader public access: §§ 67.1101(a) (providing for the OOR,
as a new administrative agency, to hear requesters' challenges without prior court action);
67.506(d)(1) (expanding the types of documents discoverable to include documents not in the
agency's possession); 67.1304, 67.1305 (increasing the civil penalties recoverable against an
agency acting in bad faith), and 67.901 (reducing the agency's time for responding to a RTKL
request). See SWB Yankees, 45 A.3d at 1034 n. 7.
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2013 WL 3156520; 1527 C.D. 2012
June 12, 2013
Reporter’s summary: An agency may not withhold records on the sole basis of the requestor
owing a disputed fee for a previous request for records.
Headnotes:
Section 901: This section requires that the fees be paid for the current request and does not allow an
agency to withhold records from a requestor for prior unpaid balances owed on records requested.
14c-29
Commonwealth Court
Borough of West Easton v. Tricia J. Mezzacappa
THE COMMONWEALTH COURT OF PENNSYLVANIA
Submitted: February 15, 2013
Filed: June 12, 2013
OPINION NOT REPORTED
BY JUDGE LEAVITT
The Borough of West Easton (Borough) appeals an order of the Court of Common Pleas of Northampton
County (trial court) denying the Borough’s appeal of a final determination of the Office of Open Records
(Open Records). In its final determination, Open Records held that the Borough improperly denied Tricia
Mezzacappa’s (Requester) request for public records under the Right-to-Know Law1 for the stated
reason that Requester had not paid $30.25 in fees owed for a previous records request. Finding no error
by the trial court in affirming Open Records’ final determination, we affirm.
On June 17, 2011, Requester submitted a request (June Request) with the Borough’s Open Records
Officer for copies of 11 records. On June 22, 2011, Requester sent an e-mail to the Borough’s clerk
explaining that she wanted a copy of only two of the 11 records; the remaining records were requested
for inspection only.
One month later, on July 22, 2011, Kelly Gross, the Borough’s Open Records Officer, sent a letter to
Requester acknowledging receipt of her June Request. The letter acknowledged that the requested
documents were public records and stated that they would be made available upon payment of $30.25
for the cost of copying. Gross’s letter noted that the documents were pulled on July 13, 2011. The letter
also acknowledged Requester’s June 22 e-mail.
On September 16, 2011, Requester submitted a new request (September Request) to the Borough for
records, which is the subject of the present appeal. On September 20, 2011, the Borough denied
Requester’s September Request because she had not yet paid the outstanding $30.25 invoice for
copying the records that were the subject of the June Request. Requester appealed the Borough’s denial
to Open Records.
Open Records granted Requester’s appeal and ordered the Borough to provide the documents
requested in the September Request. Open Records acknowledged that Section 901 of the Right-toKnow Law2 requires a requester to pay all applicable fees for access to requested public records;
however, Open Records held that this requirement was inapplicable. Further, because the Borough had
not responded to Requester’s June Request within five days, as required by Section 901, the request was
deemed denied. Open Records held that Requester was not required to pay fees for a request that was
deemed denied. The Borough appealed to the trial court.
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Commonwealth Court
The trial court agreed with Open Records’ determination that the Borough could not deny Requester’s
September Request for non-payment of the $30.25 invoice that related to the June Request because the
June Request was deemed denied. The trial court also rejected the Borough’s argument that Requester
was barred by the doctrine of res judicata from questioning the $30.25 invoice because she had not
appealed an entirely separate denial of the Borough of her August 2011 request for records. The
Borough’s appeal to this Court followed.3
On appeal, the Borough raises two arguments. First, the Borough challenges, as not supported by the
record, the trial court’s finding that the Borough did not copy any records responsive to the June
Request prior to July 22, 2011. The Borough also contends that the trial court erred in concluding that
the Borough violated the five-day deadline in Section 901 of the Right-to-Know Law. Second, the
Borough argues that Requester was precluded from contesting whether she owed $30.25 for her June
Request because Open Records had previously denied as untimely Requester’s appeal of a request filed
on July 13, 2011, that the Borough had denied for non-payment of the same $30.25.4
Having reviewed the record and the arguments of the parties, we hold that the trial court properly
denied the Borough’s appeal because Requester did not owe fees from her June Request that had
resulted in a deemed denial. Because the trial court has thoroughly analyzed the issues, and correctly
applied the law, this Court affirms the trial court’s order on the basis of the well-reasoned opinions of
the Honorable Anthony S. Beltrami in Borough of West Easton v. Tricia J. Mezzacappa, (Northampton
County Court of Common Pleas, No. C-48-CV-2011-11066, filed September 24, 2012) and Borough of
West Easton v. Tricia J. Mezzacappa, (Northampton County Court of Common Pleas, No. C-48-CV-201111066, filed July 3, 2012).5
MARY HANNAH LEAVITT, Judge
Notes
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2. Section 901 provides:
Upon receipt of a written request for access to a record, an agency shall make a good
faith effort to determine if the record requested is a public record, legislative record or
financial record and whether the agency has possession, custody or control of the
identified record, and to respond as promptly as possible under the circumstances
existing at the time of the request. All applicable fees shall be paid in order to receive
access to the record requested. The time for response shall not exceed five business
days from the date the written request is received by the open-records officer for an
agency. If the agency fails to send the response within five business days of receipt of
the written request for access, the written request for access shall be deemed denied.
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Commonwealth Court
65 P.S § 67.901 (emphasis added).
3. This Court’s review is limited to determining whether findings of fact are supported by
competent evidence or whether the trial court committed an error of law, or an abuse of
discretion in reaching its decision. Kaplin v. Lower Marion Township, 19 A.3d 1209, 1213 n.6 (Pa.
Cmwlth.), appeal denied, 612 Pa. 693, 29 A.3d 798 (2011).
4. Mezzacappa v. West Easton Borough, OOR Dkt. AP 2011-1090.
5. Requester asks this court to impose sanctions and award costs. Not finding the Borough’s appeal
was frivolous, this Court will not impose sanctions. See Section 1304 of the Right-to-Know Law,
65 P.S. § 67.1304(b) (stating that “[t]he court may award reasonable attorney fees and costs of
litigation or an appropriate portion thereof to an agency or the requester if the court finds that
the legal challenge under this chapter was frivolous.”). Further, to petition for costs, Requester
“shall state [costs] in an itemized and verified bill of costs which [she] shall file with the
Prothonotary within 14 days after entry of the judgment or other final order.” PA. R.A.P. 3751.
Here, Requester has not followed the proper procedure for petitioning for costs, and therefore
her request is denied.
13c-32
74 A.3d 378
August 9, 2013
Reporter’s summary: If a request is deemed denied, the agency may still raise valid reasons for
the denial of the request on appeal by the requestor.
Headnotes:
Section 901: An agency may provide reasons for a denial on appeal when a request is merely deemed
denied due to the passage of five days from the initial request.
14c-33
Commonwealth Court
Robert T. McClintock v. Coatesville Area School District
June 19, 2013, Argued
August 9, 2013, Filed
OPINION BY JUDGE COHN JUBELIRER
Robert T. McClintock (Requester) filed four Right-to-Know Law1 (RTKL) Requests for records from the
Coatesville Area School District (District). The District did not respond to his Requests within five
business days; therefore, under the RTKL,2 his Requests were “deemed denied.” Receiving no response,
Requester first appealed to the Office of Open Records (OOR), which partially granted his Requests, and
then to the Court of Common Pleas of Chester County (trial court), which affirmed the OOR’s Final
Determination, and now to this Court. Requester argues that the District’s failure to respond at all to his
initial RTKL Requests should result in the waiver of the District’s right to raise any exceptions set forth in
Section 708(b) of the RTKL3 as defenses to his Requests on appeal. However, based upon our Supreme
Court’s recent decision in Levy v. Senate of Pennsylvania, ___ Pa. ___, 65 A.3d 361 (2013), we conclude
that a deemed denial does not result in a deemed waiver. Accordingly, we affirm.
Requester submitted four Requests for records to the District on March 10, 2011, seeking documents
relating to Graystone Academy Charter School (Graystone).4 The District did not respond to the
Requests within five business days as required by Section 901 of the RTKL; Requester therefore filed four
separate appeals with the OOR dated March 18, 2011. (Appeals to OOR, R.R. at 23a-31a.) The OOR
consolidated the appeals and invited the parties to submit information in support of their respective
positions regarding the Requests. (OOR Letter to Parties, April 7, 2011, at 1-2.)
Responding to the appeal, the District: (1) agreed to provide some of the requested documents; (2)
stated that some of the requested documents did not exist; and (3) refused to produce the remaining
requested documents based upon the noncriminal investigation exception of the RTKL,5 the
predecisional deliberations exception of the RTKL,6 and attorney-client privilege.7 (Final Determination at
2; District Letter to OOR, March 28, 2011, C.R. at Item 13; District’s Brief in Opposition to OOR Appeal at
2, C.R. at Item 16.) The District provided the affidavit of Dr. Angelo Romaniello, Jr., Assistant
Superintendent and Administrative Liaison to the Board, in support of its refusal to provide Requester
access to the requested documents. (Final Determination at 3; District’s Brief in Opposition to OOR
Appeal, Ex. A, C.R. at Item 16.)
Requester filed a reply with the OOR. (Final Determination at 4; Requester’s Reply Brief, C.R. at Item 17.)
Among other arguments, Requester contended that the District had waived all exceptions from
disclosure as provided for in Section 708(b) of the RTKL as a result of the deemed denial of the Requests,
or, in the alternative, that the District had not proven that the records were not subject to disclosure
under the RTKL. (Final Determination at 4-5; Requester’s Reply Brief, C.R. at Item 17.)
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Commonwealth Court
Upon review, the OOR first held that the District’s failure to respond to the Requests did not result in
the waiver of the District’s right to assert a reason for denying the Requests on appeal. (Final
Determination at 7.) Based upon this Court’s decision in Signature Information Solutions, LLC v. Aston
Township, 995 A.2d 510 (Pa. Cmwlth. 2010), the OOR rejected Requester’s contention that permitting
the District, after it failed to timely respond to the Requests, to assert reasons for denying the Requests
on appeal to the OOR “‘does not allow for an expeditious resolution of the dispute.’” (Final
Determination at 5 (quoting Signature Information, 995 A.2d at 513).) Recognizing that, pursuant to
Signature Information, an agency may not alter its reason for a denial between the initial denial and the
appeal, the OOR determined that because the denial in this matter was a “deemed” denial, the District
did not alter its grounds for denial, but instead “set forth grounds during the appeal that the Requester
had the opportunity to address.” (Final Determination at 7.)
The OOR then evaluated the merits of the denial of the Requests and ordered the disclosure of some,
but not all, of the records to which the District had denied access. (Final Determination at 8-9.)
Requester appealed the OOR’s Final Determination to the trial court, again contending that all records
sought had to be provided because the District waived all exceptions from disclosure provided by the
RTKL when its failure to timely respond to the Requests resulted in an automatic deemed denial. The
trial court distinguished this Court’s decision in Signature Information and rejected Requester’s
contention. The trial court further held that the OOR properly denied the Requests for the records that
remained in dispute. This appeal followed.8
On appeal, Requester does not challenge the OOR’s Final Determination on the merits of the District’s
denials. The only issue before us is whether a failure to respond to a RTKL request, which is considered a
“deemed denial” under Section 901, results in a deemed waiver by an agency of all the exceptions set
forth in Section 708(b) as defenses on appeal to the OOR.9 Section 901 provides that the time for an
agency to respond to a RTKL request “shall not exceed five business days from the date the written
request is received” and if the agency fails to respond within five business days, “the written request for
access shall be deemed denied.” 65 P.S. § 67.901.
In Signature Information, the requester submitted a request to the township seeking real estate tax
information. The township denied the request, giving as its reason that the information was available on
the county’s website. The requester appealed the denial to the OOR, which permitted the parties to
submit additional information. At that point the township asserted, for the first time, that it denied the
request pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, and alleged that it was not required to
create a record that did not exist. The OOR ordered the township to disclose the records and the
township appealed to the trial court, which held, inter alia, that the township was not limited to its
initial reason for denying the RTKL request.
On appeal, we reversed the decision of the trial court, holding that the RTKL does not permit an agency
that has given a specific reason for a denial to assert a different reason on appeal. Signature
Information, 995 A.2d at 514. We pointed out that an agency must include specific reasons for denying a
RTKL request pursuant to Section 903(2) of the RTKL,10 and that an appeal of such denial to the OOR
must address any grounds set forth by the agency for the denial pursuant to Section 1101(a)(1) of the
RTKL.11 Id. at 513. We reasoned that “[if] an agency could alter its position after the agency stated it and
13c-35
Commonwealth Court
the requester addressed it in an appeal, then the requirements in [S]ections 903(2) and 1101(a)(1) of the
[RTKL] would become a meaningless exercise.” Id. at 514. We further reasoned that “permitting an
agency to set forth additional reasons for a denial at the appeal level does not allow for an expeditious
resolution of the dispute” as required by Section 1102(b)(3) of the RTKL.12
After the current matter was appealed to this Court, our Supreme Court issued its decision in Levy.13
There, a journalist sought, through a RTKL request, “documents relating to the legal representation of
Senate Democratic Caucus employees.” Levy, ___ Pa. at ___, 65 A.3d at 363. The Senate open records
officer provided the documents with portions redacted based upon attorney-client privilege. Id. at ___,
65 A.3d at 364. On appeal to the Senate Appeals Officer, the Senate, for the first time, asserted
additional alternate reasons for non-disclosure of the redacted portions. Id. at ___, 65 A.3d at 365. The
Senate Appeals Officer determined that portions of the redacted documents were protected by
attorney-client privilege but “that the Senate failed to demonstrate the necessary factual predicate for
assertion of” the alternate reasons for non-disclosure. Id.
Upon review by this Court, we held, based upon Signature Information, that the Senate had waived all
its alternate reasons for redacting documents relating to Senate members’ hiring outside attorneys by
failing to raise them in its initial written denial of Levy’s RTKL request. Id. at ___, 65 A.3d at 367. The
Supreme Court reversed our holding and held that this Court’s “per se waiver rule set forth in Signature
Information and its progeny is unnecessarily restrictive.” Id. at ___, 65 A.3d at 383. The Levy decision
specifically abrogated our holding in Signature Information that “an agency waives any reasons for nondisclosure not raised in its initial . . . written response” to a RTKL request. Id.
Although Requester recognizes the Supreme Court’s decision in Levy, he urges this Court to revive the
Signature Information waiver rule for this case because, here, the District ignored the RTKL Requests and
provided no reason at all for its failure to provide the requested documents. Requester argues that
where an open records officer acknowledges receipt of a request, yet ignores the request and provides
no response, such blatant disregard for the right of public access to public records must be sanctioned
by applying the Signature Information rule. Requester also argues that by permitting the District to
assert the exceptions set forth in Section 708(b) of the RTKL on appeal of a deemed denial violates the
RTKL’s requirements that procedural matters be resolved fairly and expeditiously, and that the open
records officer make a good faith effort in responding to a RTKL request.
In reaching its holding in Levy, the Supreme Court thoughtfully considered the concerns that Requester
now raises before this Court. Finding the statutory language ambiguous, the Supreme Court weighed the
“overriding purpose of the RTKL” of “ensuring expanded and expedited transparency in our
government” and the “legislative intent to shield numerous categories and subcategories of documents
from disclosure in order to protect, inter alia, the Commonwealth’s security interests and individuals’
privacy rights.” Levy, ___ at ___, 65 A.3d at 382. The Supreme Court reasoned that “adoption of the
Signature Information [r]ule undermines the specific legislative intent to shield these documents from
disclosure, merely as a consequence of an open records officer’s failure to list a legitimate reason for
non[-]disclosure on the agency’s initial written denial.” Id. Recognizing that the deemed denial
provisions, inter alia, set forth in Sections 901, 90214 and 1101(b)15 of the RTKL “demonstrate an intent
for an expedited determination of RTKL requests,” id. at ___, 65 A.3d at 381, the Supreme Court
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Commonwealth Court
explained that given the specified statutory time frame for each stage of the RTKL process, there is little
concern that the addition of new reasons for non-disclosure at the appeals officer stage will effect the
speed of any ultimate decision as the appeals officer’s decision must be issued within thirty days
regardless of the number of asserted reasons for denial.
Id. at ___, 65 A.3d at 382. The Supreme Court also expressed due process concerns related to the
Signature Information waiver rule with respect to interested third parties because they “may be limited
in their ability to raise defenses to disclosure separate from the reasons originally raised by the agency,
even though the [interested parties] were provided no notice of the original request.” Id. The Supreme
Court concluded that, given the efficiency of the RTKL process, “there is no guarantee that interested
individuals will be heard or their objections to disclosure addressed.” Id.
The reasoning in Levy applies with as much force where an open records officer fails to list a reason for
non-disclosure on the agency’s initial written denial as when it fails to provide a written denial at all for
non-disclosure. The specific legislative intent to shield certain documents or information from disclosure
and the due process concerns are the same in both situations. The General Assembly specified that
failure to respond to a RTKL request would result in a deemed denial of the request; it did not also
sanction that failure with the waiver of otherwise legitimate reasons for non-disclosure.16
Accordingly, pursuant to Levy, we hold that a deemed denial of a RTKL request, as provided for in
Section 901 of the RTKL, does not result in a deemed waiver of an agency’s right to raise the exceptions
set forth in Section 708(b) of the RTKL, 65 P.S. § 67.708(b), as defenses on appeal to the OOR. Therefore,
the trial court’s Order is affirmed.
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Commonwealth Court
Notes
2. See Section 901 of the RTKL, 65 P.S. § 67.901.
3. 65 P.S. § 67.708(b). Section 708(b) sets forth 30 exceptions that exempt public records from
access by a requester. Id.
4. The documents sought by Requester were:
a. All correspondence regarding Graystone between the Superintendent and/or Assistant
Superintendent and the School Board of Directors;
b. All records prepared by School personnel during, after, or in conjunction with School
personnel’s visits to Graystone;
c. All records regarding Graystone provided to the School Board of Directors for their review in
preparing for any public meeting;
d. All records regarding the renewal of Graystone’s Charter;
e. All 2010 School Board minutes that included references to Graystone;
f. All tapes or recording of 2010 School Board meetings that reference Graystone;
g. All approved 2011 School Board minutes;
h. All tapes or recordings of 2011 School Board meetings;
i. All draft minutes of 2011 School Board meetings where the minutes have not been
approved by the School Board and another School Board meeting has taken place.
(OOR Letter to Parties, April 7, 2011, at 1.)
5. See Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17) (providing that certain records
relating to a noncriminal investigation, including “[i]nvestigative materials, notes,
correspondence and reports,” are exempt from disclosure).
6. See Section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A) (providing that a record
that reflects “[t]he internal predecisional deliberations of an agency” is exempt from disclosure).
7. The District provided the following factual background regarding Graystone:
Graystone is a charter school located within the District. Graystone’s initial charter was granted
to begin in the 200[0]-2001 school year for a five year period and renewed by the Board on
September 26, 2006 for another five year period. The Board is statutorily required to ensure
that charter schools within the District are in compliance with their respective charters, the
Charter School Law and the applicable provisions of the Pennsylvania Public School Code of
1949[, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702]. See 24 P.S. §§
17-1728-A, 17[-]1729-A. As a result of receiving correspondence that Graystone intended to
seek a renewal of its charter, the Board, through designated agents, began to conduct the
required review of Graystone. After evaluating the results of the review, the Board determined
that there existed causes for nonrenewal or termination of the Graystone charter and issued a
Notice of Revocation of Charter listing the reasons for revocation and scheduling a public
hearing.
(OOR Final Determination at 3.)
8. This Court’s standard of review is limited to determining whether the trial court committed an
error of law, violated constitutional rights, or abused its discretion. SWB Yankees LLC v. Gretchen
13c-38
9.
10.
11.
12.
13.
14.
15.
16.
Commonwealth Court
Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, ___ Pa. ___, 45 A.3d 1029
(2012). “‘The scope of review for a question of law under the [RTKL] is plenary.’” Id. (quoting
Stein v. Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)).
We note that this is the only issue raised in Requester’s “Pa. R.A.P. 1925(b) Statement of Errors
Complained of on Appeal” (C.R. at Item 35) and in the briefs filed with this Court.
65 P.S. § 67.903(2) (providing that a denial shall be in writing and include “[t]he specific reasons
for the denial, including a citation of supporting legal authority”).
65 P.S. § 67.1101(a)(1) (providing that an appeal “shall address any grounds stated by the
agency for delaying or denying the request”).
65 P.S. § 67.1102(b)(3) (providing that an “appeals officer shall rule on procedural matters on
the basis of justice, fairness and the expeditious resolution of the dispute”).
In light of the issuance of the Supreme Court’s opinion in Levy, this Court, by Order of April 25,
2013, directed the parties to file supplemental briefs addressing the impact of Levy on the issue
of whether a deemed denial of a RTKL request results in a deemed waiver of an agency’s right to
raise the exceptions set forth in Section 708(b) of the RTKL, 65 P.S. § 67.708(b), as defenses on
appeal to the OOR. We also invited the Pennsylvania NewsMedia Association to file an amicus
brief, which it timely filed with this Court in support of the District’s position. The OOR and the
Pennsylvania School Boards Association, in support of the District, had previously filed amicus
briefs.
65 P.S. § 67.902 (providing that a request for access shall be deemed denied, absent an
agreement by the requester, if the response by the open records officer is expected to exceed
35 days).
65 P.S. § 67.1101(b) (providing that “[u]less the requester agrees otherwise,” “[i]f the appeals
officer fails to issue a final determination within 30 days, the appeal is deemed denied”).
We note that a requester can seek penalties in the form of attorney fees and costs under
Sections 1304(a) and 1305(a) of the RTKL, 65 P.S. §§ 67.1304(a), 1305(a), if access to a public
record is denied in bad faith. Section 1304 provides for the award of attorney fees and costs:
a. Reversal of agency determination.— If a court reverses the final determination of the appeals
officer or grants access to a record after a request for access was deemed denied, the court may
award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a
requester if the court finds . . . .
1. the agency receiving the original request willfully or with wanton disregard deprived the
requester of access to a public record subject to access or otherwise acted in bad faith under the
provisions of this act[.]
65 P.S. § 67.1304(a)(1). Section 1305(a) provides “[a] court may impose a civil penalty of not
more than $1,500 if an agency denied access to a public record in bad faith.” 65 P.S. §
67.1305(a).
13c-39
74 A.3d 417
September 6, 2013
Report’s Summary: A second request for the same records does not constitute a disruptive
request. Limited staffing is not a valid argument to prove a request is an unreasonable burden.
Headnotes:
Section 506: It is not disruptive to request the same record twice. The number of staff members working
for an agency does not impact the level of disruption a request is for the purposes of section 506.
Case law: “An agency must demonstrate that (1) ‘the requester has made repeated requests for th[e]
same record[(s)]’ and (2) ‘the repeated requests have placed an unreasonable burden on the agency.’”
Office of the Governor v. Bari, 20 A.3d 634, 645 (Pa. Cmwlth. 2011) (quoting 65 P.S. §67.506).
14c-40
Commonwealth Court
Borough of West Easton v. Tricia J. Mezzacappa
July 19, 2013, Submitted
September 6, 2013, Filed
OPINION BY SENIOR JUDGE FRIEDMAN
The Borough of West Easton (Borough) appeals from the January 9, 2013, order of the Court of Common
Pleas of Northampton County (trial court) denying the Borough’s appeal of the June 11, 2012, final
determination of the Office of Open Records (OOR), which granted in part and denied in part Tricia J.
Mezzacappa’s (Requestor) request for records pursuant to the Right-to-Know Law (RTKL).1 We affirm.
Requestor submitted a request for records to the Borough on May 8, 2012, seeking the following
documents:
[1.] All 1099s issued to McFall, Layman and Jordan from 2000 – present
[2.] Year to Date Check Register for 2011
[3.] Minutes of 11/14/2011 council meeting
[4.] All Statements of Financial Interest for Kelly Gross and Tom Nodoline for each year served on council
[5.] Payroll Summaries/Journals for 12/2011 to 2/2012 showing employee names and pay rates, hours
worked, gross pay. I would like copies of all records[.]
(RTKL Request, 5/8/2012, at 1.)
On June 7, 2012, the Borough granted Requestor access to the February 2012 payroll journal, but denied
the remainder of her request, alleging that it was disruptive pursuant to section 506 of the RTKL, 65 P.S.
§67.506. The Borough responded in pertinent part as follows:
After legal review, it does appear that the records you have requested are identical to records you
requested by requests received February 21, 2012, February 22, 2012, and February 27, 2012 with the
exception of your request for the February 2012 payroll journal which was not available and did not
exist at that time. . . .
Your February requests were granted and you were informed that you could inspect the records at
Borough Hall . . . by appointment. With regard to the requested Minutes, you were informed that you
could pick up a copy at a cost of .25 per page but you insisted that the Borough email the Minutes to you
at no cost.
You chose not to inspect the Borough records or pick up the Minutes. Instead, by email dated April 4,
2012, you withdrew all your outstanding [RTKL] requests. . . .[2]
Your request, therefore, constitutes a disruptive request under Section 506 of the [RTKL]. It is a request
for identical records which were requested and provided – which you chose not to inspect or pick up.
(Borough’s Letter, 6/7/2012, at 1.)
13c-41
Commonwealth Court
On June 18, 2012, Requestor appealed the Borough’s decision to the OOR, challenging the denial with
respect to items one through four. On June 21, 2012, Requestor supplemented the record with
correspondence between her and the Borough. On June 28, 2012, the Borough provided an affidavit
indicating that Requestor filed three previous RTKL requests that encompassed items one through four.
The affidavit granted Requestor access to inspect the requested records, but Requestor had refused.
On July 11, 2012, the OOR determined that item one was not subject to public access because it was
exempt under federal law. Further, the OOR denied access to item three. The OOR determined that
Requestor made repeated requests for item three and that her request was, therefore, disruptive. The
OOR granted access to items two and four, concluding that Requestor had only made one prior request
for those items and, therefore, those requests were not disruptive. The Borough appealed to the trial
court.
On January 9, 2013, the trial court denied the Borough’s appeal and affirmed the decision of the OOR.
The Borough now appeals to this court.3
The Borough contends that the trial court erred in concluding that Requestor’s request for items two
and four was not a “disruptive request” under section 506 of the RTKL because a second request is a
“repeated request” and responding to the request was an “unreasonable burden” for the Borough.
Section 506 of the RTKL provides in pertinent part as follows:
(a) Disruptive requests.—
(1) An agency may deny a requester access to a record if the requester has made repeated requests for
that same record and the repeated requests have placed an unreasonable burden on the agency.
65 P.S. §67.506. “Under this section, therefore, an agency must demonstrate that (1) ‘the requester has
made repeated requests for th[e] same record[(s)]’ and (2) ‘the repeated requests have placed an
unreasonable burden on the agency.’” Office of the Governor v. Bari, 20 A.3d 634, 645 (Pa. Cmwlth.
2011) (quoting 65 P.S. §67.506). Here, we need not address whether Requestor’s request was repeated
because the trial court determined that Requestor’s request did not place an “unreasonable burden” on
the Borough. We agree with the trial court.
Before the trial court, the Borough argued that the request was unreasonably burdensome because the
Borough has a small staff responsible for attending to Borough matters rather than responding to RTKL
requests.4 The trial court, in rejecting the Borough’s assertion and finding the request not unreasonably
burdensome, noted that the Borough, as a “governmental agency in a constitutionally established
representative democracy, is in the business of public service.” (Trial Ct. Op. at 10.) Moreover, merely
because the Borough has a small part-time staff, it does not follow that the Borough is unreasonably
burdened by an RTKL request. See Bari, 20 A.3d at 645-46 (stating that “[t]he duplicative expenditure of
an agency’s resources . . . is true of any repetitive request” and does not establish that the request is
unreasonably burdensome; further, staffing constraints do not establish a disruptive request).
The Borough further contends that the trial court erred in finding that Requestor’s failure to attach a
signed verification to her answer did not result in the dismissal of the averments made in that answer.
We disagree.
13c-42
Commonwealth Court
The Pennsylvania Rules of Civil Procedure do not apply to statutory appeals, such as an appeal under the
RTKL. See Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d
1025, 1033 (Pa. Cmwlth. 2011). Thus, Requestor’s failure to attach a signed verification to her answer is
immaterial.
Accordingly, we affirm.
13c-43
Commonwealth Court
Notes
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2. The February 2012 requests for inspection indicated that Requestor sought inspection between
9:00 a.m. and 11:00 a.m. due to her work schedule. (RTKL Request, 2/27/12, at 1.) The
Requestor withdrew the February requests for inspection after the Borough provided access
only between 1:00 p.m. and 5:00 p.m. (Requestor’s Email, 4/4/12, at 1.) The Borough responded
to the notice of withdrawal by advising Requestor to submit a new RTKL request, setting forth
“which requests for inspection [Requestor] wish[ed] to convert to request[s] for copies.”
(Borough’s Email, 4/6/12, at 1.) Subsequently, Requestor filed the instant request for copies of
the records.
3. This court’s standard of review is limited to determining whether the trial court committed an
error of law, violated constitutional rights, or abused its discretion. SWB Yankees LLC v.
Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, __ Pa. __, 45 A.3d 1029 (2012).
“‘The scope of review for a question of law under the [RTKL] is plenary.’” Id. (quoting Stein v.
Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)).
4. We note that the Borough indicated in its denial letter that “because the estimated number of
copies of records is approximately 50, it would impose a significant burden on the Borough to
again comply with this request.” (Borough’s Letter, 6/7/12, at 1.)
13c-44
Jason Kokinda v. County of Lehigh
1146 C.D. 201
January 8, 2014
Reporter’s Summary: After an appeal is denied due to a technical error by the requestor, a trial
court may not rule on substantive issues surrounding the initial request. For a trial court to rule on
substantive matters, the request must be heard by an appellate agency.
Headnotes:
Caselaw: Interim guidelines promulgated outside of the Commonwealth Documents Law do not have the
full force and effect of law and a violation of the interim guidelines does not constitute a violation of
regulations. Cmty. Country Day School v. Dep’t of Educ., 414 A.2d 428, 431 (Pa. Cmwlth. 1980).
In order for a court to have jurisdiction over the appeal, the appeal must first be decided by the
path set forth in the Right to Know Law. An appeals officer must hear the appeal before the court can
rule on the matter. Barnett v. Department of Public Welfare, 71 A.3d 399 (Pa. Cmwlth. 2013).
14c-1
Commonwealth Court
Jason Kokinda v. County of Lehigh,
September 27, 2013, Submitted
January 8, 2014, Filed
MEMORANDUM OPINION BY JUDGE COVEY1
Jason Kokinda (Requester) appeals, pro se, from the Lehigh County Common Pleas Court’s (trial court)
April 25, 2013 order denying his Right-to-Know Law (RTKL)2 request. Requester presents one issue for
this Court’s review: whether records exist if they substantially, but not fully, match the initial, narrow
request. We vacate and remand.
By letter dated July 3, 2012, Requester made a RTKL request to the Lehigh County Prison seeking “Lehigh
Co. Attorney visitation log book entries of Dennis G. Charles of 441 Linden St., Allentown, PA visiting
Jason Kokinda #0141075 of L.C.P., from July 21, 2009 to February 17, 2010. Or certification that the only
entries are during Nov. 9-12, 2009; twice.” Lehigh County Right-To-Know Request Form. On July 11,
2012, Lehigh County (County) responded to the request, in accordance with Sections 901 and 902 of the
RTKL, 65 P.S. §§ 67.901 and 67.902, stating that certain factors applied and that there would be a formal
written response approving or denying the request on or before August 10, 2012. On August 9, 2012,
the County issued its formal response denying Requester’s request pursuant to Sections 708(b)(3) and
102 of the RTKL, 65 P.S. §§ 67.708(b)(3) and 67.102. Specifically, the County denied the request because
the disclosure creates a reasonable likelihood of endangering the safety and physical security of
the prison. . . . [and] because the log book does not list who Attorney Charles was going to see
releasing the document would violate the attorney-client privilege of whomever he was there to
see . . . .
County’s Formal Response. The County advised Requester of his right to appeal its response to the
Pennsylvania Office of Open Records (OOR) within 15 business days.
On August 20, 2012, Requester appealed to the OOR. On August 23, 2012, the OOR issued a Final
Determination dismissing Requester’s appeal because he failed to include a copy of his request and/or
the County’s response. The OOR’s Final Determination advised Requester that he could re-file the
appeal, including all required documents, unless the 15-day appeal period had expired. It also notified
Requester that he could file an appeal with the trial court within 30 days of the mailing date of the Final
Determination.
On September 21, 2012, Requester appealed to the trial court.3 On April 25, 2013, the trial court held
that although Requester did not include a copy of his request and the OOR’s response, those documents
were not needed because the trial court conducted a de novo review. The trial court denied Requester’s
request pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, because the records did not exist, and the
County was not required to create them. Requester appealed from the trial court’s order to the Superior
Court. By July 2, 2013 order, the Superior Court transferred the matter to this Court.4
14c-2
Commonwealth Court
Requester argues that records exist under the RTKL if the requested records substantially, but not fully,
match the initial, narrow request. The County asserts that because Requester failed to include a copy of
his original RTKL request and a copy of the County’s response when he filed his appeal with the OOR,
and did not do so when the OOR gave him the opportunity to correct the deficiency, Requester has
failed to exhaust his administrative remedies, and accordingly, the trial court lacked jurisdiction to
consider the appeal on its merits.
Initially, we note that the OOR’s Final Determination dismissed Requester’s appeal for failure “to include
a copy of the Request and/or agency Response.” OOR’s Final Determination. However, the Final
Determination also included the following paragraph:
You may re-file the appeal unless fifteen (15) business days have elapsed since the denial or
deemed denial of your request for records. You must include all required
components/documents, including any submitted in this case, if the appeal is re-filed. Within
thirty (30) days of the mailing date of this Final Determination, you may appeal or petition for
review to the [trial court]. . . .
Id. (second emphasis added). Consequently, the OOR provided Requester the option of either re-filing
his appeal with the OOR or appealing to the trial court. Requester chose to appeal to the trial court. The
sole issue before the trial court should have been whether Requester’s appeal was properly dismissed
for failure to include a copy of the request and/or agency response. The trial court ruled that “since [its]
standard of review is de novo in nature, [Requester’s] failure to include a copy of his request does not
divest [it] of jurisdiction.” Trial Ct. Op. at 5. Thereafter, the trial court ruled on the merits of the appeal
and held that “[s]ince [the County] is not required to create a record which does not already exist,
[Requester’s] request must be denied.” Trial Ct. Op. at 6.
The County argues here, as it did before the trial court, that because the OOR adopted Interim
Guidelines which require appeals to include the request and the response thereto, Requester has failed
to perfect his appeal by not adhering to the OOR Interim Guidelines. See County Br. at 6. We disagree.
“It is well settled that regulations not promulgated pursuant to the Commonwealth Documents Law[5]
have no force or effect and may not form the basis of an agency’s action.” Cmty. Country Day School v.
Dep’t of Educ., 414 A.2d 428, 431 (Pa. Cmwlth. 1980). Our Supreme Court expressly held: “The OOR, has
not adopted regulations . . . rather, it has only adopted ‘Interim Guidelines’ that do not constitute duly
promulgated regulations.” Bowling v. Office of Open Records, ___ Pa. ___, ___, 75 A.3d 453, 471 n.20
(2013) (emphasis added). Thus, the OOR’s dismissal of Requester’s appeal on the ground that he failed
to follow the OOR’s Interim Guidelines was without any legal basis.
The trial court, relying on Chester Community Charter School v. Hardy ex rel. Philadelphia Newspaper,
LLC, 38 A.3d 1079 (Pa. Cmwlth. 2012), determined that it had jurisdiction to hear the appeal because its
standard of review is de novo. Although a de novo review may cure certain defects, it cannot remedy the
OOR’s legal errors in dismissing Requester’s appeal and not fulfilling its statutory obligation to review
the merits of the case. Id.
14c-3
Commonwealth Court
The issue of whether an appellate court can address the merits of a RTKL case without the OOR first
considering the merits was addressed by this Court in Barnett v. Department of Public Welfare, 71 A.3d
399 (Pa. Cmwlth. 2013), wherein this Court explained:
We recognize that this Court has concluded that, when reviewing an OOR appeal from a Commonwealth
agency’s denial of a RTKL request in our appellate jurisdiction, we subject the matter to independent
review, and that we are ‘entitled to the broadest scope of review.’ Bowling [v. OOR, 990 A.2d 813, 820
([Pa. Cmwlth.] 2010), aff’d, ___ Pa. ___, 75 A.3d. 453 (2013)]. However, this Court’s decision in Bowling
does not mandate that we eliminate the statutory requirement that the OOR first consider a requester’s
appeal on the merits before we undertake appellate review. A final determination on the merits permits
this Court to perform effective appellate review in accordance with the standard and scope of review set
forth in Bowling. Here, there is no final determination on the merits, but merely a summary dismissal of
Requester’s OOR Appeal. There was no opportunity for either Requester or [the agency] to present any
evidence to support each party’s respective position. Under these circumstances, we believe that the
better approach in this matter is to permit the OOR the opportunity to follow the procedures set forth in
the RTKL and issue a final determination on the merits before we exercise review.
Id. at 407 (emphasis added). Here, the OOR dismissed the case giving Requester the option to refile with
it or appeal to the trial court. Requester appealed from the OOR’s decision. On appeal, the trial court
addressed the filing requirements then proceeded to decide the merits notwithstanding the fact that
the OOR never disposed of, or ruled on the merits. Because there is a “statutory requirement that the
OOR first consider a requester’s appeal on the merits before . . . appellate review[,]” the trial court’s
order is vacated. Id. at 407 (emphasis added). Accordingly, we remand this matter to the OOR for the
parties to present evidence so the OOR can make a determination on the merits of Requester’s appeal.
For all of the above reasons, the trial court’s order is vacated and the matter is remanded to the OOR to
allow the parties the opportunity to present evidence in support of their respective positions upon
which the OOR can make a determination on the merits.
14c-4
Commonwealth Court
Notes
1. This opinion was reassigned to the Authoring Judge on October 30, 2013.
2. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
3. Requester erroneously listed the OOR as the defendant, but this error was subsequently
remedied by the trial court’s January 8, 2013 order which substituted the County as the
defendant.
4. This Court’s standard of review is limited to determining whether the trial court committed an
error of law, violated constitutional rights, or abused its discretion. SWB Yankees LLC v. Gretchen
Wintermantel, 999 A.2d 672, 674 n. 2 (Pa.Cmwlth.2010), aff'd, 615 Pa. 640, 45 A.3d 1029 (2012).
‘The scope of review for a question of law under the [RTKL] is plenary.’ Id. (quoting Stein v.
Plymouth Township, 994 A.2d 1179, 1181 n. 4 (Pa.Cmwlth.2010)).
McClintock v. Coatesville Area Sch. Dist., 74 A.3d 378, 381 n.8 (Pa. Cmwlth. 2013).
5. Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102–1602, 45 Pa.C.S. §§ 501–907.
14c-5
94 A.3d 436
June 16, 2014
Reporter’s Summary: After an in camera review, it was determined that most of the redactions were
merely billing related and that though nothing confidential under the attorney-client privilege or work
product doctrine could be revealed, most of the redactions did not fall into those categories.
Headnotes:
Privilege: Privileged documents are not publicly accessible under the Right-to-Know Law and documents
may be exempted under the work-product doctrine or the criminal investigation exception. In this case,
however, client names and detailed billing could not be used as reasons to exempt an otherwise public
record.
In camera reviews: Unredacted documents may be reviewed by a special master to determine if the
documents are covered by any type of privilege.
See, also, Levy v. Senate of Pa. (Pa. Cmwlth., No. 2222 C.D. 2010, filed August 5, 2013) and Levy v.
Senate of Pa., 65 A.3d 361 (Pa 2014)
14c-6
Commonwealth Court
Marc Levy v. Senate of Pennsylvania
November 1, 2013, Submitted
January 15, 2014, Filed
OPINION BY JUDGE SIMPSON
This Right-to-Know Law (RTKL)1 case, which involves a journalist’s request for legislative records2 relating
to the legal representation of Senate Democratic Caucus employees, is before us following a remand
from our Supreme Court in Levy v. Senate of Pennsylvania, __ Pa. __, 65 A.3d 361 (2013). In Levy, the
Supreme Court affirmed our decision3 regarding the applicability of the attorney-client privilege to client
identities and descriptions of legal services; however, it reversed our decision to the extent we
determined additional bases for nondisclosure were waived. On remand, we consider these alternate
bases for nondisclosure, specifically, the work-product doctrine, grand jury secrecy, and the criminal
investigation exception. After careful consideration, we hold none of these alternate grounds support
the Senate’s redactions of all client identities or general descriptions of legal services in the documents
requested.
I. Background
Marc Levy (Levy), a journalist, requested documents relating to the legal representation of Senate
Democratic Caucus employees under the RTKL. Specifically, the request sought all bills, contracts and
payment records relating to the hiring of any outside lawyer or law firm to represent Senator Robert. J.
Mellow and any current or former employee of the Senate Democratic caucus beginning January 1,
2009.
The Senate Open Records Officer responded to the request by producing five sets of financial records
relating to five clients employed by the Senate, who were provided with outside counsel pursuant to the
Senate Committee on Management Operations (COMO) Policy for the Payment of Legal Services.
However, the Senate Open Records Officer redacted portions of the documents, primarily, the names of
the five clients and the description of legal services, on the basis of attorney-client privilege.
Levy appealed to the Senate Appeals Officer and asserted the redacted information was not privileged.
The Senate responded the information was properly redacted under the attorney-client privilege, as
well as work-product doctrine, grand jury secrecy, and an exemption relating to criminal investigation.
The Senate Appeals Officer could not conclude whether the attorney-client privilege applied, and he
permitted the Senate to provide supplemental affidavits and unredacted records, but he did not specify
a time in which to do so. As for the other asserted grounds for redaction, the Senate Appeals Officer
determined that there was insufficient evidence to support a determination that the work-product
doctrine protected the client or the information in question, that grand jury secrecy should attach, or
that the records were exempt as relating to a criminal investigation.
14c-7
Commonwealth Court
On the 29th day after the Senate Appeals Officer’s final determination, Levy appealed to this Court. At
that point, neither supplemental affidavits nor unredacted records had been produced by the Senate.
On appeal, an en banc panel addressed the application of the attorney-client privilege to the
documents. However, relying on Signature Information Solutions v. Aston Township, 995 A.2d 510 (Pa.
Cmwlth. 2010), we did not address the remaining privileges and exceptions on the basis the Senate
waived these alternate reasons by not asserting them in its initial RTKL response.
In consideration of the attorney-client privilege, we received additional evidence in the form of an
affidavit and unredacted records, and we appointed a Special Master4 to review the unredacted
documents in camera. Ultimately, in accordance with the recommendations of the Special Master, we
determined the attorney-client privilege did not shield names of clients or general descriptions in the
legislative records, and we reversed this portion of the Senate Appeals Officer’s determination.
However, to the extent the redactions shielded specific descriptions of legal services that implicated
confidential communications, we upheld the redactions under the attorney-client privilege.5 Thus, we
affirmed in part and reversed in part the final determination of the Senate Appeals Officer.
The Senate petitioned for allowance of appeal to the Supreme Court. The Supreme Court affirmed our
decision regarding the applicability of the attorney-client privilege to client identities and descriptions of
legal services. However, to the extent we determined that any reasons for denial not raised in the initial
written denial of a RTKL request were waived and could not be raised at a later stage of the RTKL
process, the Supreme Court reversed and abrogated this Court’s holding in Signature Information. Levy;
see McClintock v. Coatesville Area Sch. Dist., 74 A.3d 378 (Pa. Cmwlth. 2013) (recognizing abrogation).
The Supreme Court remanded to this Court for consideration of the additional reasons for denial raised
by the Senate before the Senate Appeals Officer. Levy.
On remand, the Senate requested this Court to further remand the matter to the Senate Appeals Officer
to allow it to supplement the evidentiary record in support of its argument that the records still at issue
are exempt or barred from disclosure by privilege or exception under the RTKL. This Court, speaking
through Senior Judge Colins, denied the request for further remand, explaining the Senate maintained
throughout the appeals process that the record before the Senate Appeals Officer was sufficient to
resolve its legal claims concerning the additional bases for non-disclosure. Levy v. Senate of Pa. (Pa.
Cmwlth., No. 2222 C.D. 2010, filed August 5, 2013) (single judge opinion). However, the Court allowed
the parties to file supplemental briefs on the application of the work-product doctrine, grand jury
secrecy and criminal investigation exemption to the RTKL to address recent developments in the RTKL.
Id.
We now consider the alternate reasons for nondisclosure raised by the Senate to the Senate Appeals
Officer in ascertaining the propriety of these redactions.6 At this juncture, the remaining redactions for
review fall into two categories: (1) client identity, and (2) general descriptions of the legal services
provided.
II. Issues
14c-8
Commonwealth Court
The Senate argues once a record is found to be privileged or exempt in part under the RTKL, then the
entire record is entitled to protection, and the Senate cannot be compelled to alter its redactions.
Additionally, the Senate contends the redactions to client identities and general description of legal
services are proper under the work-product doctrine, grand jury secrecy and criminal investigation
exemption.
III. Discussion
A. Records Not Public
First, the Senate argues once a record is found to be privileged or exempt in any part under the RTKL,
the Senate can withhold the entire record, and it cannot be compelled to alter its redactions. The
discretion to produce redacted versions of otherwise privileged or exempt records lies exclusively with
the agency possessing the records. In other words, once a record is determined to contain privileged or
exempt information under the RTKL, the agency does not need to produce it at all; but, if it chooses to
do so, then discretion to redact lies solely with the agency. Applied here, because the documents
contain protected information, the Senate cannot be compelled to produce the records in unredacted
form; consequently, the Senate cannot be directed to alter its voluntary redactions.
Levy counters the Senate’s argument is not only waived, but outside of the scope of the Supreme
Court’s remand, and it is wrong on the merits. The Senate argues for the first time that, to the extent
certain records at issue contain some material subject to exemption or privilege, they need not be
produced at all, whether in redacted form or otherwise. By not previously raising this argument at any
prior stage in the proceeding, the Senate waived this argument. Moreover, the issue is beyond the
scope of the Supreme Court’s remand order, which directed this Court to consider whether the
redactions can stand under the alternate reasons for denial raised by the Senate before the Senate
Appeals Officer. As the Senate did not raise this issue, it cannot be considered on remand. Finally, Levy
asserts, the Senate’s position is wrong as a matter of law because it would make the RTKL’s redaction
provisions superfluous.
1. Waiver
Before the Senate Appeals Officer, and before this Court previously on its initial appeal, the Senate
asserted four grounds in support of its redactions: attorney-client privilege; work-product doctrine;
grand jury secrecy; and criminal investigation exception. On remand, the Senate now asserts for the first
time that once a record is found to be privileged in part, the entire record can be withheld.7
In its decision in Levy, our Supreme Court abrogated the per se waiver rule previously embraced in
Signature Information (waiver if defense to disclosure not raised in initial denial letter) and its progeny.
However, the Court was careful not to totally reject waiver in RTKL proceedings. In fact, the Court
applied waiver to reject a challenge to the in camera review process that was not first raised in the
Commonwealth Court. Levy, ___ Pa. at ___, 65 A.3d at 366 n. 4. Thus, waiver may still be applied to RTKL
cases where appropriate.
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Before the Supreme Court in Levy, the Senate asserted “that an agency must raise all its challenges
before ‘the appeals officer closes the time for submissions’ and ‘takes the matter under advisement.’”
Id. at ___, 65 A.3d at 377 (quoting Senate Br. at 25-26 n.17). There is some merit to this assertion.
We agree that an agency must raise all its challenges before the fact-finder closes the record. This will
allow efficient receipt of evidence from which facts may be found to resolve the challenges. In the
ordinary course of RTKL proceedings, this will occur at the appeals officer stage, and a reviewing court
will defer to the findings of the appeals officer. See Bowling v. Office of Open Records, ___ Pa. ___, ___,
75 A.3d 453, 473-74 (2013) (describing success of administrative regime of RTKL; concluding most
disputes will end at appeals officer level); see also id. at ___, 75 A.3d at 477 (concurring op. by Saylor, J.,
favoring wide latitude in appeals officer discretion and deference to administrative-level developments);
id. at ___, 75 A.3d at 478-79 (dissenting op. by Castille, C.J., expressing concern about fact-finding in the
Commonwealth Court in RTKL cases). In the rare, extraordinary case in which the initial reviewing court
must act as a fact-finder, an agency must raise all its challenges before the close of evidence before the
court.
Here, this Court acted as a fact-finder when, on appeal from the Senate Appeals Officer, it conducted in
camera review of unredacted copies of the billing records in question. After review, the record was
closed, and a decision was issued. On remand, this Court declined to arrange for re-opening of the
record. Thus, the time to raise new challenges to disclosure of the billing records is past. Challenges not
previously raised before the fact-finder are waived. This resolution is consistent with our Supreme
Court’s application of waiver in this case, as described above.
2. Scope of Remand
Moreover, as an alternative procedural basis for our ruling, we conclude that the Senate’s new
challenge is beyond the scope of the Supreme Court’s remand order.
Where a case is remanded for a specific and limited purpose, “issues not encompassed within the
remand order” may not be decided on remand. In re Indep. Sch. Dist. Consisting of the Borough of
Wheatland, 912 A.2d 903, 908 (Pa. Cmwlth. 2006) (quoting Budd Co. v. Workers’ Comp. Appeal Bd.
(Kan), 858 A.2d 170, 180 (Pa. Cmwlth. 2004)). A remand does not permit a litigant a “proverbial second
bite at the apple.” Emery Worldwide v. Unemployment Comp. Bd. of Review, 540 A.2d 988, 990 (Pa.
Cmwlth. 1988).
Here, the Supreme Court remanded “for consideration of the additional reasons for denial raised by the
Senate to the Senate Appeal’s Officer.” Levy, __ Pa. at __, 65 A.3d at 383 (emphasis added). As
mentioned above, this new challenge was not submitted to the Senate Appeals Officer. Thus, it is
beyond the scope of our Supreme Court’s remand order.
Because of our holdings on the problems associated with the procedures of raising a new issue now, we
do not need to discuss at length the merits of the Senate’s new challenge. It is sufficient for current
purposes to note that the Supreme Court in this case expressed doubts about the merits, albeit in dicta.
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Thus, when the Supreme Court declined to consider this argument on appeal, it noted “this argument
would seemingly make the redaction provisions of the RTKL superfluous.” Levy, __ Pa. at __, 65 A.3d at
369 n.7.
B. Work-product doctrine
Next, the Senate asserts the redactions are proper under the work-product doctrine because the
withheld material reveals the attorneys’ mental impressions, theories, notes, strategies and research.
The Senate argues the work-product doctrine extends the general descriptions of work performed,
which were excluded from exemption under attorney-client privilege. According to the Senate, knowing
that an attorney made a telephone call, drafted a memo, reviewed a letter, or even reviewed the public
docket entries on a particular date reveals what the attorney was doing on a case and what he deemed
to be a vital activity in servicing the client’s needs. Therefore, these general descriptions are protected
by the work-product doctrine.
Levy counters that the work-product doctrine does not extend to the general descriptions of legal
services. Following the redactions to specific descriptions, all that remains is the general nature of
services performed, e.g., memo, telephone call, research, etc. Such general, non-substantive
descriptions do not reveal the attorneys’ mental, impressions, conclusion, opinions, memoranda, notes,
summaries, legal research or legal theories. Levy maintains the work-product doctrine is not intended to
protect such mundane and uninforming entries in billing records.
Section 102 of the RTKL, 65 P.S. §67.102, defines a “legislative record” to include the financial records of
the Senate. Pursuant to Section 305(b) of the RTKL, a legislative record in the Senate’s possession is
presumed to be available for disclosure under the RTKL, unless:
(1) the record is exempt under section 708;
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other Federal or State law, regulation or judicial
order or decree.
65 P.S. §67.305(b). In turn, the term “privilege” is defined in Section 102 of the RTKL as:
The attorney work-product doctrine, the attorney-client privilege, the doctor-patient privilege, the
speech and debate privilege or other privilege recognized by a court incorporating the laws of this
Commonwealth.
65 P.S. §67.102 (emphasis added). The burden of proving the privilege rests with the party asserting it.
Heavens v. Pa. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth. 2013).
Application of the attorney work-product doctrine is described in Pa. R.C.P. No. 4003.3, which precludes
“disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions,
memoranda, notes or summaries, legal research or legal theories.” In the RTKL context, the doctrine
protects the “mental impressions, theories, notes, strategies, research and the like created by an
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attorney in the course of his or her professional duties, particularly in anticipation or prevention of
litigation” from disclosure. Heavens, 65 A.3d at 1077 (citing Gillard v. AIG Ins. Co., 609 Pa. 65, 15 A.3d 44
(2011)).
The work-product doctrine, while closely related to the attorney-client privilege, provides broader
protection. Dages v. Carbon Cnty., 44 A.3d 89 (Pa. Cmwlth. 2012). “The doctrine protects any material
prepared by the attorney ‘in anticipation of litigation,’ regardless of whether it is confidential. Id. at 93
n.4 (quoting Nat’l R.R. Passenger Corp. v. Fowler, 788 A.2d 1053, 1065 (Pa. Cmwlth. 2001)). “The
underlying purpose of the work product doctrine is to guard the mental processes of an attorney,
providing a privileged area within which he can analyze and prepare his client’s case.” Commonwealth v.
Sandusky, 70 A.3d 886 (Pa. Super. 2013). The purpose is not to shield “mundane and uninforming
entries in ... billing records,” such as the bare fact that a telephone conference occurred. See Valenti v.
Allstate Ins. Co., 243 F.Supp.2d 200, 218 (M.D. Pa. 2003) (disapproving redactions asserted under the
work-product doctrine for “clearly non-privileged ... rote descriptive entries”).
Here, the Senate argues the general descriptions of legal services are entitled to protection under workproduct doctrine because the items reflect work performed by the attorney. We do not agree. Although
the general descriptions such as drafting a memo, making telephone call, performing research,
observing a trial, reflect work performed, without further detail8 they do not reveal an attorney’s
“mental impressions, theories, notes, strategies, research and the like.” Heavens, 65 A.3d at 1077.
Disclosure of the general tasks performed in connection with the fee charged reveals nothing about
litigation strategy. They simply explain the generic nature of the service performed and justify the
charges for legal services rendered. Where, as here, the taxpayers are footing the bill for the legal
services, they are entitled to know the general nature of the services provided for the fees charged. See
Tribune-Review Publ’g Co. v. Bodack, 599 Pa. 256, 268, 961 A.2d 110, 117 (2008) (providing “the public
has an interest in monitoring how public officials use public property”); Pa. State Univ. v. State Emps.’
Ret. Bd., 594 Pa. 244, 261, 935 A.2d 530, 540 (2007) (providing there “can be no reasonable expectation
that the Commonwealth will keep its finances secret from the general public”). Thus, we conclude such
rote entries regarding the general nature of legal services performed are not entitled to protection
under the work-product doctrine.
C. Grand Jury Secrecy
Next, the Senate claims redactions of client identities are protected by grand jury secrecy rules.
According to the Senate, the name of a witness before an ongoing grand jury investigation is protected
by grand jury secrecy. Although a witness is free to discuss his own testimony, he cannot be compelled
to reveal his testimony. Likewise, a witness cannot be compelled to reveal his appearance before a
grand jury. Therefore, grand jury secrecy demands redaction of the client identities from the
documents.
Levy counters that merely knowing that the communication between the attorney and client involved a
grand jury investigation does not disclose confidential communications between the client and the
attorney, regarding strategy or legal tactics. Levy also argues the mere fact that a client is seeking
counsel regarding a grand jury investigation does not implicate the client in criminal activity or reveal
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matters before the grand jury. As Levy points out, a client could be seeking legal advice to serve as a
grand jury witness, without being implicated in any criminal aspects of the grand jury investigation.
Under the RTKL, records are protected due to the presence of a “privilege recognized by a court
interpreting the laws of this Commonwealth” or an exemption from disclosure “under any other Federal
or State law.” Section 305(b) of the RTKL, 65 P.S. §67.305(b); accord Section 506(c)(1)(i) & (2), 65 P.S.
§67.506(c)(1)(i) & (2); see Section 102 of the RTKL, 65 P.S. §67.102 (definitions of “privilege” and
“legislative record”).
Proceedings before a grand jury are protected by a general rule of secrecy. Section 4549 of the
Investigating Grand Jury Act, 42 Pa. C.S. §4549; In re Dauphin Cnty. Fourth Investigating Grand Jury, 610
Pa. 296, 19 A.3d 491 (2011). The secrecy of grand jury proceedings is designed:
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost
freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their
friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the
witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to
encourage free and untrammeled disclosures by persons who have information with respect to the
commission of crimes; [and,] (5) to protect innocent accused who is exonerated from disclosure of the
fact that he has been under investigation, and from the expense of standing trial where there was no
probability of guilt.
Id. at 316-317, 19 A.3d at 503 (quoting In re Investigating Grand Jury of Phila. Cnty., 496 Pa. 452, 458,
437 A.2d 1128, 1130 (1981)).
While the veil of secrecy surrounding grand jury proceedings is broad, it is not absolute. See Section
4549 of the Investigating Grand Jury Act, 42 Pa. C.S. §4549. Secrecy applies only to prevent the
unauthorized disclosure of “matters occurring before the grand jury.” 42 Pa. C.S. §4549(b) (emphasis
added); see Com. v. Columbia Invest. Corp., 457 Pa. 353, 325 A.2d 289 (1974). Indeed, the act governing
grand jury proceedings provides “[n]o witness shall be prohibited from disclosing his testimony before
the investigating grand jury except for cause shown in a hearing before the supervising judge.” Section
4549(d) of the Investigating Grand Jury Act, 42 Pa. C.S. §4549(d). Participants “may disclose matters
occurring before the grand jury ... when so directed by the court.” 42 Pa. C.S. §4549(b). Additionally,
grand jury secrecy does not require the names of the grand jurors themselves be protected from
disclosure. See Petition of Grace, 397 Pa. 254, 154 A.2d 592 (1959) (expressing disapproval for
impounding the names of the grand jury); Commonwealth v. Wecht, 20 Pa. D. & C.3d 627 (C.P. Allegheny
1981) (same).
Relying on In re November, 1975 Special Investigating Grand Jury, 445 A.2d 1260 (Pa. Super. 1982), the
Senate argues grand jury secrecy protects the identities of the clients in the billing statements. In In re
November, a candidate for the Philadelphia City Controller’s office filed an action to compel testimony
by the opposing candidate regarding his prior grand jury testimony. The candidate-petitioner argued
that, because a grand jury witness is not prohibited from releasing his own testimony, the witness can
be compelled to appear at a hearing and questioned about his testimony. The Superior Court rejected
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this argument and held Section 4549(d) of the Investigating Grand Jury Act, “in permitting such
voluntary disclosure by a witness, simply cannot be construed to support the actions of another person
who institutes an action to force disclosure by compelling the witness to take the stand to declare in a
public forum whether or not he or she will disclose his or her testimony before the grand jury.” Id. at
1262.
The Senate argues the principles of the In re November decision should apply with equal force here. We
disagree. Unlike in In re November, Levy is not attempting to compel disclosure of the substance of a
witness’s grand jury testimony. Rather, he is merely attempting to obtain the client identities in the
Senate’s billing records. Moreover, in In re November, the witness’s identity was known, and there is no
discussion in that case regarding the need to protect the witness’s identity.
Whether or not the clients here are in fact grand jury witnesses is not clear from the record. To this
extent we agree with the Senate Appeals Officer that the Senate failed to prove the existence of facts
upon which this defense to disclosure is based. With the redactions at issue here (found in just a small
set of records: 140a-141a, 143a, 144a & 145a-146a), the only dispute is whether the clients who sought
legal advice regarding a grand jury investigation under the Senate’s COMO policy are protected by the
grand jury secrecy rules. Although the words “grand jury investigation” and “investigation” appear in the
redacted documents, there is nothing in the documents that connects the client identities to secret
grand jury material. Indeed, nothing in the record establishes that either the Senate itself or any of its
employees is subject to the grand jury secrecy requirement. See Castellani v. Scranton Times, L.P., 598
Pa. 283, 956 A.2d 937 (2008) (holding only the grand jury participants are bound by the oath of secrecy).
Simply stated, the billing statements do not implicate “matters occurring before a grand jury.” 42 Pa.
C.S. §4549(b).
As our Supreme Court observed, “[n]othing was revealed other than the fact of counsel’s engagement
and that it related to a grand jury investigation.” Levy, __ Pa. at __, 65 A.3d at 372. Thus, the Senate
Appeals Officer correctly concluded there is nothing in the record “to suggest, which, if any of the clients
or records, specifically pertain to grand jury proceedings or how or why such records must be secreted.”
Senate Appeals Officer Op., 9/16/10, at 12.
D. Criminal Investigation Exception
Finally, the Senate argues the criminal investigation exception protects client identities and general
description of legal services because the information related to or resulted in a criminal investigation.
The records at issue relate to two different criminal investigations, albeit not conducted by the Senate.
The Senate claims the client names and general activities taken by an attorney on a particular day would
improperly reveal the progress of the criminal investigation. According to the Senate, knowledge that an
attorney conducted research or observed a trial would reveal the progress of the criminal investigation
by showing the government’s continued focus on a particular witness or subject. Additionally, the
Senate contends disclosing the clients’ identities will reveal that a criminal inquiry has been opened, the
scope of the criminal probe, and perhaps how far it has progressed. As such, both client identities and
the general descriptions of legal services should be protected under the criminal investigation exception.
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Levy counters that the criminal investigation exemption does not extend to the Senate’s billing records.
The billing records are not records of a criminal investigation. The billing records do not relate to any law
enforcement functions of the Senate. To date, the exemption has only been extended to protect records
of the agency carrying out the investigation.
The criminal investigation exception is set forth in Section 708(b)(16) of the RTKL. In relevant part, the
exception provides that a record is exempt from access if it is:
A record of an agency relating to or resulting in a criminal investigation, including:
***
(iv) A record that includes information made confidential by law or court order.
***
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal
charges.
Section 708(b)(16)(iv) & (vi)(A) of the RTKL, 65 P.S. §67.708(b)(16)(iv) & (vi)(A). A record that is a
“financial record” must still be produced, but the criminal investigation information may be redacted. 65
P.S. §67.708(c). The legislative agency bears the burden of proving application of the exception to the
documents by a “preponderance of the evidence.” 65 P.S. §67.708(a)(2).
Here, the Senate asserts 10 records are subject to the criminal investigation exception because they
reference a grand jury investigation. Resp’t’s Br., App. A, at 2; R.R. at 114a, 115a-116a, 122a-124a, 128a132a, 135a-137a, 138a-139a, 140a-141a, 143a, 144a, 145a-146a. Of those 10, nine are financial records
and one is an engagement letter, R.R. at 140a-141a. The Senate argues the exception applies to some
records on the basis they are confidential by law under the grand jury secrecy rules, and to all records as
they would reveal the institution or progress of a criminal investigation.
As to the grand jury secrecy, for the reasons set forth above, the Senate did not establish an exemption
under this theory. By extension, the redactions cannot stand under the criminal investigation exception
as a “record that includes information made confidential by law or court order,” 65 P.S.
§67.708(b)(16)(iv), on the basis of grand jury secrecy.
As to revealing the institution or progress of a criminal investigation, neither the client identities nor the
general descriptions of services performed reveal the institution or progress of a criminal investigation.
The records at issue are bills or an engagement letter and do not relate to any “law enforcement
functions” of the Senate. Cf. Galloway v. Office of Pa. Atty. Gen., 63 A.3d 485, 487 (Pa. Cmwlth. 2013)
(records protected from disclosure under criminal investigation exception because the request
pertained to the law enforcement functions of the OAG).
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To the extent the documents reference and arguably “relate to” a criminal investigation conducted by
another agency, the records themselves do not contain any investigatory material. The Senate offered
no evidence linking these portions of the billing records to any criminal investigation. Contrary to the
Senate’s assertions, the general, non-substantive descriptions of legal services, such as making a
telephone call and drafting a memo, do not reveal the institution or progress of the grand jury
investigation. Rather, the descriptions merely reveal the attorneys’ general activities in providing legal
advice to the clients.
We are equally unpersuaded as to the Senate’s claims that the client identities would reveal the
government’s interest in a particular person. Although the Senate argues the client identities are
entitled to protection because the records were generated in connection with the legal defense
undertaken in response to a criminal investigation, this is not a fact in evidence. Again, the records
reveal nothing other than the fact of counsel’s engagement and that it pertained to a grand jury
investigation. Thus, we conclude the Senate failed to provide sufficient factual justification for the
redactions under the criminal investigation exception.
IV. Conclusion
For the reasons stated above, we determine that the Senate waived the issue that its records are
exempt from disclosure in their entirety by not raising it before the fact-finder and that the issue
exceeds the scope of the Supreme Court’s remand order. Additionally, we conclude none of the Senate’s
alternate grounds support the redactions of client identities or general descriptions of legal services.
Accordingly, we affirm the decision of the Senate Appeals Officer as to the additional reasons for denial
raised by the Senate to the Senate Appeals Officer.
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Notes
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 - 67.3104.
2. Section 102 of the RTKL, 65 P.S. §67.102, defines “legislative record” to include a financial record
relating to the legislative agency. Additionally, Section 102 defines “legislative agency” to
include the Senate.
3. Levy v. Senate of Pa., 34 A.3d 243 (Pa. Cmwlth. 2011) (en banc).
4. The Honorable James R. Kelley, Senior Judge, served as special master.
5. Specifically, the Special Master recommended:
To the extent that the documents specify the issues or laws researched by the
attorneys, specific services provided and the names of the individuals with whom the
attorneys communicated, ... such information has the potential to reveal the
confidential communications shared by attorney and client, the motive of the client in
seeking representation and litigation strategy, and is privileged.
Levy, 34 A.3d at 257.
6. For a question of law under the RTKL, our scope of review is plenary. Padgett v. Pa. State Police,
73 A.3d 644 (Pa. Cmwlth. 2013). In reviewing matters under Section 1301 of the RTKL, 65 P.S.
§67.1301 (pertaining to a Commonwealth agency, a legislative agency or a judicial agency), we
act in our appellate jurisdiction, but we independently review the agency’s orders, and we may
substitute our own findings of fact. Id.
7. Although the Pennsylvania School Boards Association attempted to raise this issue in its friendof-the-court brief before the Supreme Court, the Court refused to consider it because “it was
not raised by the Senate.” Levy, __ Pa. at __, 65 A.3d at 369 n.7.
8. The redactions pertaining to the specific descriptions of legal services, such as the subject of the
memo, who was called, the nature of the researched performed, identification of the trial
attended, were previously upheld under the attorney-client privilege.
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98 A.3d 1223
August 18, 2014
Reporter’s summary: The five-day time frame begins to run when an agency’s open records
officer receives the request, not when the agency in general receives the request.
Headnotes
Declaratory judgments: By issuing guidelines, the Office of Open Records has opened itself up to agencies
seeking declaratory judgments.
Section 901: The time period for calculating five business days does not start until the open records
officer receives the request.
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Commonwealth of Pennsylvania, Office of the Governor v. Sean Donahue and Office of Open Records
SUPREME COURT OF PENNSYLVANIA
November 20, 2013, Argued
August 18, 2014, Decided
OPINION BY JUSTICE BAER
In this matter, the Office of the Governor brought a declaratory judgment action in the Commonwealth
Court, challenging the Office of Open Records’ interpretation of 65 P.S. § 67.901, which addresses an
agency’s time frame for responding to written requests for documents made pursuant to the Right-toKnow Law.1 The Commonwealth Court granted the Office of the Governor’s request for declaratory
relief, and held that pursuant to 65 P.S. § 67.901, an agency must respond to a Right-to-Know Law
records request within five business days of receipt of the request by the agency’s respective openrecords officer. After explaining the procedural history of this case, we first consider whether the Office
of the Governor had standing to bring the declaratory judgment action and then whether the
Commonwealth Court had subject matter jurisdiction in this matter. Finally, we address the
Commonwealth Court’s interpretation of 65 P.S. § 67.901 of the Right-to-Know Law. For the reasons
that follow, we affirm the order of the Commonwealth Court.
I.
On March 7, 2012, Sean Donahue (Donahue) submitted to the Office of the Governor (OG) a Right-toKnow Law (RTKL) request via email, seeking various budgetary and employment records. OG’s openrecords officer did not receive the request until March 12, 2012; and five business days later, on March
19, 2012, the open-records officer proceeded to grant Donahue’s request in part and deny the request
in part.
On March 29, 2012, Donahue timely appealed to the Office of Open Records (OOR). OOR determined
that Donahue’s request was “deemed denied” because OG failed to respond to the request within a five
business day period as required by 65 P.S. § 67.901. According to OOR, Section 901 affords an agency
five business days to respond to a RTKL request after receipt of the request by any employee of the
agency. Instantly, OOR concluded that the five business day period for responding to Donahue’s request
began to run on March 7, the date on which an OG employee first received the request, and that the
request was therefore “deemed denied” when OG failed to respond within five business days, which
was by March 14.2 The fact that OG’s open-records officer did not receive the request until March 12
was immaterial to OOR’s analysis. Notwithstanding its holding that the request was “deemed denied,”
OOR issued a final order upholding OG’s substantive response and denying Donahue’s appeal on the
grounds that his records request was insufficiently specific.
Even though OG prevailed in the matter before OOR, it appealed OOR’s final order to the
Commonwealth Court, where it contested OOR’s interpretation of Section 901 of the RTKL. OG
contended that OOR wrongly concluded that an agency must respond to a RTKL request within five
14c-19
business days from the date any person within the agency receives such a request. To the contrary, OG
argued that an agency, including it, has five business days to respond from the date its RTKL openrecords officer receives the request for records. See 65 P.S. § 67.901 (stating that agencies must respond
to record requests within “five business days from the date the written request is received by the openrecords officer for an agency.”). On July 2, 2012, the Commonwealth Court issued a per curiam order
quashing OG’s petition for appellate review. The Commonwealth Court held that OG lacked standing to
appeal from the OOR order because OG was not “aggrieved” by the order, but merely disagreed with an
issue decided against it regarding the time frame for responding to RTKL records requests.
In addition to appealing OOR’s final order, OG simultaneously filed a declaratory judgment action in the
Commonwealth Court’s original jurisdiction, seeking a declaration that OOR misinterpreted Section 901
of the RTKL with respect to the commencement of the five business day period for responding to a RTKL
request under Section 901.3 As noted above, OG sought a holding from the court that the five business
day period for an agency to respond to a RTKL records request does not start running until receipt of the
request by an agency’s open-records officer, as opposed to receipt by any employee of the respective
agency.
In response to OG’s petition for declaratory judgment naming OOR as respondent, OOR filed preliminary
objections claiming, inter alia, that OG lacked standing to bring a declaratory judgment action against it
because, as found by the Commonwealth Court with regard to OG’s appeal in the Donahue matter, OG
was not aggrieved by OOR’s decision in Donahue and, therefore, lacked standing to bring an original
jurisdiction action raising an issue decided therein. OOR also claimed that the Commonwealth Court
lacked original jurisdiction to entertain OG’s petition for declaratory relief, because the General
Assembly specifically placed such matters in the judiciary’s appellate rather than original jurisdiction
through the statutory appeals process established in Chapter 13 of the RTKL. See 65 P.S. § 67.1101.
Finally, OOR averred that OG’s claim should be dismissed because the Commonwealth Court previously
held in Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503 (Pa.Cmwlth. 2012)
(“PGCB”) that an agency employee’s receipt of a RTKL request triggered in that case the five business
day period for responding to the request.
In a single-judge order, issued without opinion on August 28, 2012, the Commonwealth Court dismissed
OOR’s preliminary objections and proceeded to entertain OG’s declaratory judgment action against
OOR. Order of the Cmwlth. Ct., No. 376 M.D. 2012 (Aug. 28, 2012). As justification for its August 28, 2012
order dismissing OOR’s preliminary objections, the Commonwealth Court cited without explanation the
following two cases: Pennsylvania State Educ. Ass’n ex rel. Wilson v. Commonwealth, 50 A.3d 1263 (Pa.
2012) (permitting a teachers’ union to sue OOR in declaratory judgment in the Commonwealth Court,
where the teachers’ union raised substantial constitutional issues and was not a party to the underlying
RTKL request proceeding); and Pennsylvania State Lodge v. Commonwealth, 692 A.2d 609 (Pa.Cmwlth.
1997) (affirming the dismissal of a declaratory judgment action against the Pennsylvania Department of
Labor and Industry where the plaintiff failed to allege any facts demonstrating that it suffered actual and
immediate harm as a result of the department’s actions).
In an order and supporting opinion filed January 23, 2013, a three judge panel of the Commonwealth
Court granted OG its requested declaratory relief on the merits. Commonwealth v. Donahue, 59 A.3d
14c-20
1165 (Pa.Cmwlth. 2013). Notably, the court expressly declined to address the issues of standing or
jurisdiction raised by OOR in preliminary objections because these issues, in the court’s view, were
resolved by the single-judge August 28 order denying the preliminary objections. Id. at 1167 n.5.
Instead, the court proceeded directly to the merits.
The court rejected OOR’s determination that an agency’s five business day period for responding to a
RTKL request under Section 901 commences when any agency employee receives the request.
Specifically, the court held that OOR mischaracterized the Commonwealth Court’s holding in PGCB to
stand for the proposition that an agency employee’s receipt of a RTKL request triggers the five business
day period for responding to the request. Id. at 1169. In PGCB, an agency employee failed to forward a
records request to an open-records officer and, allegedly, ignored the request after deciding, in a
solitary act, that the request was defective. 48 A.3d at 504-05. The Commonwealth Court concluded in
PGCB that under these circumstances the records request was “deemed denied,” and held that,
generally, written requests for records do not need to be specifically addressed to the agency’s openrecords officer or follow certain formatting guidelines in order to be valid. Id. at 508-10.4 In its analysis of
the case before us, the Commonwealth Court limited its holding in PGCB to the substance and form of
RTKL requests, and refused to treat that case as dispositive with regard to the five day time frame for
responding to a RTKL request under Section 901. Donahue, 59 A.3d at 1169. Ultimately, the court held
that, according to the plain language of Section 901, an agency must respond to a written RTKL request
within five business days of the request’s receipt by the agency’s designated open-records officer. Id. at
1170.
II.
We first consider whether OG possessed standing to petition the Commonwealth Court for declaratory
relief given OOR’s interpretation of 65 P.S. § 67.901 enunciated in Donahue. The issue of standing is a
question of law; thus, our standard of review is de novo and our scope of review is plenary. Johnson v.
Am. Standard, 8 A.3d 318, 326 (Pa. 2010).
OOR argues that the Commonwealth Court’s decision granting declaratory relief should be vacated
because OG suffered no harm as a result of OOR’s final order in the Donahue case, and therefore lacked
standing to sue OOR. OOR reasons that just as the Commonwealth Court correctly found that OG lacked
standing to appeal OOR’s final order in Donahue because it was not aggrieved, the court should have
also held that OG lacked standing to sue OOR in declaratory judgment where it sought the same relief
(reversal of OOR’s holding in the Donahue matter) for the same reason (that OOR’s position was
contrary to the statutory language).
Specifically, OOR argues that OG failed to meet the required elements for standing in its declaratory
judgment action - namely, OG failed to demonstrate that its asserted interest was substantial, direct,
and immediate. See Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009). OOR avers that when it
rendered its order in Donahue it did not engage in any sort of “rulemaking” as defined by the
Commonwealth Attorneys Act, 71 P.S. §§ 732-101 et seq.; the Commonwealth Documents Law, 45 P.S.
§§ 1201-1208; or the Regulatory Review Act, 71 P.S. §§ 745.1 et seq. In the absence of official
rulemaking affecting OG, OOR contends that OG did not suffer any harm.
14c-21
OOR further argues that mere disagreement with a tribunal’s legal reasoning or conclusions of law does
not confer standing on a party. See ACS Enters. v. Norristown Borough Zoning Hearing Bd., 659 A.2d 651,
654 (Pa.Cmwlth. 1995) (“[A] prevailing party’s disagreement with the legal reasoning or basis for a
decision does not amount to a cognizable aggrievement necessary to establish standing.”). OOR
contends that any potential future adverse consequence of its interpretation of Section 901 is not
sufficiently immediate to confer standing on OG for purposes of declaratory relief, and that OG must
wait to make its challenge in a case where it is, in fact, aggrieved, at which point OG may pursue its
remedy through the specific statutory scheme for review established in Chapter 13 of the RTKL. See
Empire Coal Mining & Dev. v. Dep’t of Env’t Res., 623 A.2d 897, 900 (Pa.Cmwlth. 1993) (stating that the
mere possibility of a future adverse judicial ruling is not sufficient to establish an immediate injury for
purposes of standing); see also Yarmoski v. Lloyd, 531 A.2d 1169, 1171 (Pa.Cmwlth. 1987) (holding that
declaratory judgments “are not to be entered in anticipation of events that may never occur.”). Finally,
OOR avers that its interpretation of Section 901, where OOR would require agencies to respond to
record requests within five business days upon receipt by any agency employee, does not waste agency
time or resources.
In response, OG concedes that the Commonwealth Court properly dismissed its petition for appellate
review in Donahue after finding that OG lacked standing to appeal the OOR order. OG, however,
contends that it nonetheless possessed standing to petition the Commonwealth Court for declaratory
relief against OOR. OG observes that standing to bring an original complaint exists where a party asserts
a “discernible adverse effect” to an individualized interest. See William Penn Parking Garage, Inc. v. City
of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975) (plurality). Here, OG contends that, apart from the
Commonwealth Court’s declaratory order, OOR’s decision in Donahue, where OOR announced its
interpretation of Section 901, would force OG to alter both the manner in which it communicates with
the public and the manner in which it litigates RTKL matters, thus imposing significant administrative
burdens on OG.
In Pennsylvania, the doctrine of standing at issue in this matter is a prudential, judicially created
principle designed to winnow out litigants who have no direct interest in a judicial matter. In re Hickson,
821 A.2d 1238, 1243 (Pa. 2003). For standing to exist, the underlying controversy must be real and
concrete, such that the party initiating the legal action has, in fact, been “aggrieved.” Pittsburgh
Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659 (Pa. 2005). As this Court explained in William
Penn Parking Garage, “the core concept [of standing] is that a person who is not adversely affected in
any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a
judicial resolution to his challenge.” 346 A.2d at 280-81. A party is aggrieved for purposes of establishing
standing when the party has a “substantial, direct and immediate interest” in the outcome of litigation.
Johnson, 8 A.3d at 329 (quoting Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009)). A party’s
interest is substantial when it surpasses the interest of all citizens in procuring obedience to the law; it is
direct when the asserted violation shares a causal connection with the alleged harm; finally, a party’s
interest is immediate when the causal connection with the alleged harm is neither remote nor
speculative. Id.
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Thus, while the purpose of the Declaratory Judgment Act, 42 Pa.C.S. § 7531 et. seq., is to “settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and
is to be liberally construed and administered,” the availability of declaratory relief is limited by certain
justiciability concerns. 42 Pa.C.S. § 7541(a). In order to sustain an action under the Declaratory
Judgment Act, a plaintiff must allege an interest which is direct, substantial and immediate, and must
demonstrate the existence of a real or actual controversy, as the courts of this Commonwealth are
generally proscribed from rendering decisions in the abstract or issuing purely advisory opinions. See
Pittsburgh Palisades Park, 888 A.2d at 659; see also In re Hickson, 821 A.2d at 1243.
OOR’s contention that its newly announced interpretation of Section 901 does not waste agency time or
resources or otherwise harm OG’s interests borders on the frivolous. Pursuant to OOR’s interpretation
of Section 901, the five business day period for responding to a RTKL record request triggers upon
receipt by any one of OG’s employees, as opposed to the date of receipt by OG’s respective openrecords officer.5 The effect of OOR’s interpretation is to shorten the window for responding to RTKL
record requests, thereby making it more difficult for OG to comply with the time requirements of
Section 901. With less time to respond to record requests, the likelihood of deemed denials is higher,
which will increase the number of RTKL matters that OG is forced to adjudicate with the OOR. See 65
P.S. § 67.1101. OG’s allegation of harm is neither remote nor speculative, and as an administrative
agency of the Commonwealth charged with complying with the statutory directives of the RTKL, OG
possesses a cognizable interest in the outcome of this dispute that surpasses the interest of all citizens.
Moreover, OOR’s insistence that OG is not aggrieved in the absence of OOR engaging in official
rulemaking is misguided. Notably, the RTKL authorizes OOR to adopt regulations and issue advisory
opinions to facilitate the implementation of the statute. See 65 P.S. § 67.504(a); 65 P.S. § 67.1310(a).
While the Donahue decision is neither a regulation nor an advisory opinion, and although OOR’s
discussion of Section 901 in Donahue was essentially dicta (in that OOR upheld OG’s dismissal of
Donahue’s record request for being insufficiently specific), OOR has proceeded to defend its
interpretation of Section 901 in this appeal and has otherwise indicated that it intends to enforce
Section 901 in accordance with the position it took in Donahue. Brief of OOR at 17-18. Thus, OOR’s initial
adjudication in this matter and subsequent advocacy serves to enunciate sufficiently its position on this
issue which adversely, directly and immediately impacts OG.
For these reasons we conclude that OG possesses standing to challenge in a declaratory judgment action
OOR’s interpretation of Section 901. Our position in this respect is consistent with similar decisions
where we have recognized the justiciability of declaratory judgment actions seeking pre-enforcement
review of an administrative agency’s interpretation and enforcement of a governing statute. See Arsenal
Coal Co. v. Commonwealth, 477 A.2d 1333 (Pa. 1984) (upholding a pre-enforcement challenge of agency
regulations that had a direct and immediate effect on the party seeking declaratory relief); Bayada
Nurses, Inc. v. Commonwealth, 8 A.3d 866 (Pa. 2010) (affirming the justiciability of a declaratory
judgment action challenging an agency’s interpretation of a provision in a governing statute). The fact
that OOR has not engaged in official rulemaking with respect to its interpretation of Section 901 is a
distinction without a difference. By setting forth and defending its interpretation of Section 901, OOR’s
14c-23
conduct under the facts herein adversely, directly and immediately impacts OG, thus conferring on OG
standing to challenge OOR’s interpretation in declaratory judgment.
III.
Next, OOR argues that the Commonwealth Court lacked jurisdiction over OG’s declaratory judgment
action. OOR phrases the issue as “[w]hether the Commonwealth Court erred by finding it had
jurisdiction over the Governor’s original jurisdiction complaint alleging a misinterpretation of statutory
law in the absence of any harm or constitutional question?” Brief of OOR at 4. We note that in so
arguing, OOR conflates the distinct notions of jurisdiction, standing, and exhaustion of statutory
remedies.6 Notwithstanding, we will summarize and respond to OOR’s posited argument.
OOR claims that, in rendering its order of August 28, 2012, denying OOR’s preliminary objections to
jurisdiction, the Commonwealth Court erroneously relied upon Pennsylvania State Educ. Ass’n ex rel.
Wilson v. Commonwealth, 50 A.3d 1263 (Pa. 2012) (“PSEA”) for the proposition that a party aggrieved by
OOR’s interpretation of the RTKL may file an action for declaratory relief in the Commonwealth Court’s
original jurisdiction. See PSEA, 50 A.3d 1263 (Pa. 2012) (permitting a teachers’ union to sue OOR seeking
declaratory judgment in the Commonwealth Court, where the teachers’ union raised substantial
constitutional issues and was not a party to the underlying RTKL request proceeding). OOR asserts that
our holding therein did not provide a grant of jurisdiction over it for purposes of the Declaratory
Judgment Act generally, but rather was limited to circumstances where the administrative process
involving OOR was inadequate to address a party’s claim and where substantial constitutional issues
were raised. OOR distinguishes PSEA from the instant case, pointing out that, unlike PSEA, this case does
not involve a party left with no administrative or statutory process for pursuing a claim against OOR, and
does not implicate a substantial constitutional issue.
OOR thus contends that the Commonwealth Court lacked subject matter jurisdiction to entertain OG’s
declaratory judgment action because OG did not raise an issue with constitutional overtones and, more
importantly, because OG failed to exhaust its available statutory remedies.7 OOR would have OG
disallowed from challenging its interpretation of Section 901 until a future case arises where OG is
actually aggrieved, at which point, OG will be able to pursue fully its available statutory remedies,
including appellate review as provided for in Chapter 13 of the RTKL. See 65 P.S. §§ 67.1101, .1301.8
OG responds that the Commonwealth Court properly exercised its original jurisdiction in OG’s
declaratory judgment action because its petition for declaratory relief sought review of what OG viewed
as an interpretation of the RTKL which would continuously place OG, as well as all other Commonwealth
agencies subject to the RTKL, at jeopardy. Specifically, OG asserts that OOR redefined the limits of its
own jurisdiction to entertain RTKL appeals when it clarified the time frame within which an agency must
respond to a RTKL record request, given that OOR lacks jurisdiction over RTKL appeals until a request has
been “deemed denied.” See 65 P.S. § 67.1101. OG thus characterizes its petition for declaratory relief as
an action seeking to define the proper reach of OOR’s authority in RTKL matters, which, according to
OG, properly falls within the Commonwealth Court’s original jurisdiction.
14c-24
Before turning to OOR’s arguments, we initially reject OG’s argument that OOR’s announced
interpretation of Section 901 purporting to clarify the time frame within which an agency must respond
to RTKL record requests impermissibly redefined the scope of OOR’s authority and thus widened the
breadth of its jurisdiction over RTKL matters. Various provisions of the RTKL clearly confer upon OOR the
authority to construe RTKL provisions and to decide RTKL matters. See 65 P.S. § 67.504 (authorizing OOR
to “promulgate regulations relating to appeals involving . . . Commonwealth agenc[ies].”); 65 P.S. §
67.1310(a)(2) (directing OOR to issue advisory opinions); 65 P.S. § 67.1310(a)(5) (granting OOR authority
to review and decide appeals of decisions by Commonwealth agencies). Whether OOR advanced a
correct interpretation of Section 901 in deciding the Donahue matter is a separate question with no
jurisdictional overtones related to OOR’s interpretation and enforcement of the RTKL generally.
We next turn to OOR’s argument that, apart from an inadequate statutory or administrative remedy and
the presence of substantial constitutional concerns, a declaratory judgment action addressed to the
Commonwealth Court’s original jurisdiction is an improper vehicle for challenging OOR’s interpretation
of the RTKL. PSEA serves as the basis of OOR’s argument.
In PSEA a labor union representing public school employees filed an original jurisdiction action against
OOR, seeking preliminary and permanent injunctions prohibiting the disclosure of the school employees’
personal information after OOR ordered the release of these records pursuant to a series of RTKL
requests filed with various school districts across Pennsylvania. 50 A.3d at 1266. The teachers’ union
premised its claims upon the right to due process. Notably, the teachers’ union was not a party to the
RTKL requests adjudicated before the OOR, and therefore had no administrative or judicial method
under the RTKL by which to seek redress for its members’ grievances. Id. at 1275.
While noting the general rule requiring the exhaustion of statutory remedies, this Court in PSEA held
that a declaratory judgment action against OOR was appropriate under the circumstances, where the
union raised substantial due process concerns and lacked a reliable administrative or alternative judicial
remedy. Id. at 1275-76. Moreover, notwithstanding that the OOR is a quasi-judicial tribunal, we further
held that it was an indispensable and proper party to an action brought under the Declaratory Judgment
Act, 42 Pa.C.S. § 7541(a), seeking an order regarding its interpretation of the RTKL, particularly when the
aggrieved party lacked an adequate administrative or alternative judicial forum for obtaining relief, as
was the case in PSEA. Id. at 1277.9
OOR’s attempt to limit the Commonwealth Court’s jurisdiction over it to the facts of PSEA understates
the reach of the Commonwealth Court’s original jurisdiction over a Commonwealth agency like OOR.
The Commonwealth Court has original jurisdiction over any action brought against the “Commonwealth
government,” as well as the authority to grant declaratory relief to the same. 42 Pa.C.S. §§ 761(a),
7541(a); Vine v. Commonwealth, 9 A.3d 1150, 1165 (Pa. 2010). The Judicial Code defines the
“Commonwealth government” as including “ @ the departments, boards, commissions, authorities and
officers and agencies of the Commonwealth.” 42 Pa.C.S. § 102. The OOR, as a Commonwealth agency,
plainly falls within the statutory definition of “Commonwealth government” and is therefore subject to
the original jurisdiction of the Commonwealth Court in any action properly brought against it. See 65
P.S. § 67.1310 (placing the Office of Open Records in the Department of Community and Economic
Development, charged with implementing and enforcing the RTKL); see also Vine, 9 A.3d at 1165
14c-25
(jurisdiction “relates solely to the competency of the particular court or administrative body to
determine controversies of the general class to which the case then presented for its consideration
belongs”). The fact that OG is bringing a declaratory judgment action against the OOR, a Commonwealth
agency, to challenge its interpretation of Section 901, places this matter squarely within the scope of the
Commonwealth Court’s original jurisdiction.
We therefore reject OOR’s contention that the absence of a substantial constitutional issue in this action
deprives the Commonwealth Court of jurisdiction. While in PSEA this Court expressly held that a
declaratory judgment action against OOR in the Commonwealth Court’s original jurisdiction was
appropriate where the aggrieved party lacked an available administrative remedy and raised a
substantial constitutional issue, we never indicated that the facts of PSEA represented the extent of the
Commonwealth Court’s jurisdiction. See PSEA, 50 A.3d at 1275-77. To the contrary, in PSEA we cited
with approval Pentlong Corp. v. GLS Capital, Inc., 820 A.2d 1240 (Pa. 2003) (superseded by statute on
other grounds, 53 P.S. § 7106) where we endorsed a “relatively flexible” approach in determining
whether the Commonwealth Court should entertain a declaratory judgment action when the aggrieved
party possesses an alternative legal remedy. PSEA, 50 A.3d at 1277; Pentlong Corp., 820 A.2d at 1245-46,
1248 n.16 (citing Borough of Green Tree v. Bd. of Prop. Assessments, 328 A.2d 819, 824 (Pa. 1974).
Specifically, in Pentlong Corp., this Court, notwithstanding the absence of a substantial constitutional
question, sanctioned the exercise of jurisdiction by the Commonwealth Court over a declaratory
judgment action involving allegations of fraud and unjust enrichment against a private entity engaged in
municipal tax lien collections. Pentlong Corp., 820 A.2d at 1248 n.16.
We further reject OOR’s contention that the rule requiring the exhaustion of statutory remedies
effectively precludes OG from challenging OOR’s interpretation of Section 901 by means of a declaratory
judgment action brought in the Commonwealth Court’s original jurisdiction. While it remains unclear
whether the rule requiring the exhaustion of statutory remedies is jurisdictional or prudential (see supra
note 7), even assuming, arguendo, one cast an exhaustion discussion in jurisdictional terms, there is no
doubt a court may properly exercise its jurisdiction in the face of an existing legal or statutory remedy
when that remedy is either inadequate or incomplete. Pentlong Corp., 820 A.2d at 1245. Specifically
“[w]here, for instance, a legal remedy would result in a multiplicity of duplicative lawsuits and, in
contrast, an action in equity would provide a tidy global resolution, this Court has found the legal
remedy to be inadequate.” Id. at 1245-46; Kowenhoven v. County of Allegheny, 901 A.2d 1003, 1010 (Pa.
2006).
Here, OOR, an administrative agency, proffered an interpretation of Section 901 of the RTKL in its
Donahue decision that immediately and detrimentally impacted OG. Nonetheless, OOR challenged OG’s
standing to appeal from OOR’s Donahue decision because, as the Commonwealth Court noted, OG was
the prevailing party therein.10 OOR now argues that OG must first exhaust its statutory remedies under
the RTKL before pursuing declaratory relief in the Commonwealth Court. OOR essentially advocates that
OG await the following scenario: a future RTKL requestor challenges OG, or another entity subject to the
RTKL, for violating OOR’s interpretation of Section 901 articulated in Donahue; OOR resolves the dispute
in favor of the requestor, consistent with Donahue; and OG, or the alternative entity, challenges OOR’s
interpretation of Section 901 before the Commonwealth Court in its appellate capacity. Meanwhile,
14c-26
OOR presumably expects OG and every other Commonwealth agency to act in accord with its Donahue
decision, and thus face the direct and immediate administrative burden of complying with this
pronouncement, unless and until the aforementioned scenario unfolds.
It is precisely under such circumstances, where a party is in need of relief from “uncertainty and
insecurity with respect to rights, status, and other legal relations,” and where a legal or administrative
remedy is inadequate, that declaratory relief is warranted. See 42 Pa.C.S. §7541(a); Kowenhoven, 901
A.2d at 1011. As previously noted, OOR’s construction of Section 901 announced in Donahue affects
numerous parties, all of whom are burdened with the task of either complying with OOR’s interpretation
or challenging the same when they are found to have violated it. Accordingly, declaratory relief is
appropriate in the Commonwealth Court’s original jurisdiction to avert the potential “multiplicity of
duplicative lawsuits” with regard to the same issue OG raised in its declaratory judgment action. See
generally Pentlong Corp., 820 A.2d at 1245-46; Kowenhoven, 901 A.2d at 1011.
Moreover, as we recognized in Borough of Green Tree, the rule requiring the exhaustion of statutory
remedies need not apply where “the administrative process has nothing to contribute to the decision of
the issue and there are no special reasons for postponing its immediate decision.” Borough of Green
Tree, 328 A.2d at 824 (internal quotation marks omitted). Given that OOR has stated its position with
regard to Section 901 in its Donahue decision and defended the same on appeal to this Court, it is
unlikely that awaiting formal consideration of the question in a future controversy between OOR and
OG will provide further insight. See Id.
Thus, contrary to OOR’s contention, OG’s declaratory judgment action addressed to the Commonwealth
Court’s original jurisdiction was a proper vehicle for challenging OOR’s interpretation of the RTKL. Our
position is consistent with other decisions where we have permitted declaratory judgment actions
brought in the Commonwealth Court’s original jurisdiction against Commonwealth agencies acting
within their adjudicatory or regulatory capacities. See Arsenal, 477 A.2d 1333 (declaratory judgment
action brought against the Department of Environmental Resources seeking to enjoin the agency from
implementing regulations); Rendell v. Pennsylvania State Ethics Comm’n, 983 A.2d 708 (Pa. 2009)
(declaratory judgment action against the Pennsylvania State Ethics Commission challenging an advisory
opinion announcing the agency’s interpretation of a governing statute); PPL Generation, LLC v.
Commonwealth, 986 A.2d 48 (Pa. 2009) (declaratory judgment action against the Department of
Environmental Protection seeking to invalidate the agency’s emissions regulation promulgated pursuant
to the Pennsylvania Air Pollution Control Act, 35 P.S. §§ 4001-4015); Bayada, 8 A.3d 866 (declaratory
judgment action brought against the Department of Labor and Industry challenging the agency’s
proffered interpretation of a provision in the Pennsylvania Minimum Wage Act, 43 P.S. §§ 333.101333.115).
Finally, as with our discussion of OG’s standing, we view it immaterial that OOR’s path to its construction
of Section 901 of the RTKL was first its adjudication of a case before it as a quasi-judicial tribunal, and
then its position as an advocate. Of consequence is that OOR has adopted an interpretation of the
statute in question and stated its intention to apply that interpretation prospectively to the apparent
detriment of OG (as well as other Commonwealth agencies). Under these circumstances, we conclude
that the Commonwealth Court properly exercised its original jurisdiction over OOR in this matter.
14c-27
IV.
With standing and jurisdiction concerns aside, we turn to our analysis of when the five business day
period for responding to RTKL record requests begins pursuant to Section 901 of that act. OOR contends
that the Commonwealth Court erred as a matter of law by interpreting Section 901 to provide that the
five business day period for responding to RTKL record requests does not begin to run until the agency’s
respective open-records officer receives the request. First, citing to the Commonwealth Court’s holding
in PGCB, OOR argues that the court failed to follow its precedent establishing that an agency employee’s
receipt of a RTKL request triggers the five business day period for responding under Section 901. See
Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503 (Pa.Cmwlth. 2012) (“PGCB”)
appeal granted, 74 A.3d 1027 (Pa. 2013). In PGCB, the Commonwealth Court treated a RTKL request as
“deemed denied” when an agency employee failed to forward the request to an open-records officer.
Id. OOR contends that the outcome should be no different in the instant case.
According to OOR, the plain language of Section 901 requires that an agency respond to all RTKL record
requests within five business days of receipt by any agency employee. OOR points to the first and last
sentence of Section 901 which refer to “an agency’s” receipt and response to RTKL records requests, and
argues that the language necessarily implies that the five business day period for responding to a
records request begins to run upon receipt by any employee of an agency. Moreover, OOR argues that
the Commonwealth Court adopted an overly narrow interpretation of Section 901, specifically with
regard to the language from Section 901 that reads: “[t]he time for respon[ding to a records request]
shall not exceed five business days from the date the written request is received by the open-records
officer for an agency.” According to OOR, this language simply means that if the agency’s open-records
officer is the first employee to receive a RTKL records request, then the officer’s response is not to
exceed five business days.
OOR further argues that its interpretation of Section 901 is the only one that gives full effect to the
express language of the RTKL. OOR notes that Section 703 of the RTKL contemplates the receipt of
requests by any agency employee, because it directs such employees to forward all requests for records
to the respective agency’s open-records officer. 11 OOR further notes that Section 502 instructs openrecords officers to “compute the day on which the five business day period under Section 901 will
expire,” and contends that the open-records officer should base the computation on when the first
agency employee received the RTKL request.12
OOR places significance on the fact that various sections of the RTKL refer to an agency’s determination
of whether to grant or deny access to records as the “agency’s response,” as opposed to the “openrecords officer’s response.” See 65 P.S. §§ 67.706, .903, .904, .905, .1101, and .1303. OOR contends that
an open-records officer’s duties are merely administrative while it is the agency that performs all critical
decision-making functions with respect to the RTKL, and reasons that the five business day period for
responding to a RTKL request necessarily begins to run when any agency employee first receives the
request.
Finally, OOR argues that the Commonwealth Court’s interpretation of Section 901 runs counter to the
overriding legislative intent in enacting the RTKL, which is government transparency and the speedy
14c-28
resolution of requests for information. See Levy v. Senate, 65 A.3d 361, 368 (Pa. 2013). OOR warns that,
pursuant to the Commonwealth Court’s interpretation of Section 901, an agency will be inclined to act
in bad faith by delaying the transmission of RTKL requests from its employees to its open-records officer.
Moreover, OOR contends that the Commonwealth Court’s holding will inhibit parties requesting records
from knowing when the fifteen day window for appealing from a deemed denial begins to run, since
they will have no reliable method for determining when an agency’s open-records officer first received a
record request. See 65 P.S. § 67.901 (stating that when an agency fails to respond timely to a RTKL
record request, the request is “deemed denied”); 65 P.S. § 67.1101 (conferring the right to file an appeal
with the OOR within fifteen days of either a denial or a deemed denial).
In response, OG contends that the plain language of Sections 901, 703, and 502 of the RTKL establish
that agencies must respond to RTKL requests within five business days from the date the written
request is received by an open-records officer for the agency, as opposed to any agency employee. OG
argues that OOR’s interpretation of Section 901 would require a result that is both impossible in
execution and absurd in implementation. OG warns that if Section 901 is interpreted as to require an
agency response within five business days of receipt by any agency employee, then agencies will be
confronted with the impossible task of averring that no agency personnel are in receipt of a request.
Finally, OG submits that if OOR’s interpretation of Section 901 is upheld, agencies will experience
“shotgun” RTKL record requests where duplicate requests are submitted to multiple agency employees.
Accordingly, OG would have us affirm the Commonwealth Court’s grant of declaratory relief.
As our analysis involves interpreting a provision from the RTKL, we necessarily begin by considering the
Statutory Construction Act of 1972. 1 Pa.C.S. § 1501 et seq. The Statutory Construction Act directs that
the object of all interpretation and construction of statutes is to ascertain and effectuate the
legislature’s intent. 1 Pa.C.S. § 1921(a); Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. of
Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). Generally, the best indicator of legislative intent is the plain
language of the statute. Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). In construing statutory language,
“[w]ords and phrases shall be construed according to rules of grammar and according to their common
and approved usage[.]” 1 Pa.C.S. § 1903(a).
When the words of a statute are clear and unambiguous, there is no need to look beyond the plain
meaning of the statute “under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b); Commonwealth v.
Conklin, 897 A.2d 1168, 1175 (Pa. 2006). Only “[w]hen the words of the statute are not explicit” may a
court resort to the rules of statutory construction including those provided in 1 Pa.C.S. § 1921(c);13
Chanceford, 923 A.2d at 1104. The statute must “be construed, if possible, to give effect to all its
provisions,” so that no provision is reduced to mere surplusage. 1 Pa.C.S. § 1921(a); Walker, 842 A.2d at
400. Finally, it is presumed “[t]hat the General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1).
The RTKL requires all agencies to designate an open-records officer, who is tasked with handling RTKL
record requests. 65 P.S. § 67.502(a)(1), (b). The RTKL further obliges agency employees who receive
RTKL requests to forward the requests to the agency’s open-records officer. 65 P.S. § 67.703. While
there is no specified time frame for forwarding a request to the agency’s open-records officer, Section
901 of the RTKL directs agencies to make a good faith effort to respond as promptly as possible, and in
14c-29
any event to respond no later than “five business days from the date the written request is received by
the open-records officer for an agency.” 65 P.S. § 67.901. Section 901 provides more fully:
Upon receipt of a written request for access to a record, an agency shall make a good faith effort
. . . to respond as promptly as possible under the circumstances existing at the time of the
request . . . . The time for response shall not exceed five business days from the date the written
request is received by the open-records officer for an agency. If the agency fails to send the
response within five business days of receipt of the written request for access, the written
request for access shall be deemed denied.
Id. (emphasis added).
As noted above, in construing a statute, a reviewing court’s objective is to discern the intent of the
legislature, which is best indicated by the plain language of the statute. The language of this passage is
clear and unambiguous. Simply put, agencies must respond to RTKL record requests within five business
days after the agencies’ respective open-records officer first receives the request. The five business day
period plainly begins when the open-records officer receives a request. Because the directive in Section
901 is neither vague nor subject to more than one reasonable interpretation, there is no need to look
beyond the plain meaning of the statute and resort to other indicia of legislative intent. See 1 Pa.C.S. §
1921(c). The Commonwealth Court thus properly concluded that Section 901 of the RTKL requires an
agency to respond to a written request for records within five business days of the request’s receipt by
an agency’s open-records officer.
OOR’s insistence that Section 901 requires agencies to respond to RTKL record requests within five
business days of receipt by any agency employee has no basis in the text of the statute. To defend its
interpretation, OOR looks, in isolation, at the first and last sentences of Section 901 which refer to “an
agency’s” receipt and response to RTKL records requests, and argues that the language necessarily
implies that the five business day period for responding to a records request begins to run upon receipt
by any agency employee. OOR’s interpretation, however, does not provide a satisfactory explanation of
the language in Section 901 that specifically directs agencies to respond within “five business days from
the date the written request is received by the open-records officer for an agency.” While OOR
acknowledges that the plain language of Section 901 affords an agency’s open-records officer five
business days to respond to a RTKL records request, OOR adds, without any basis, that this holds true
only if the officer is the first agency employee to receive the request. Because OOR’s interpretation does
not give effect to all the language contained in Section 901, and otherwise inserts language that does
not appear in the text of the statute, we reject OOR’s construction of Section 901. See 1 Pa.C.S. §
1921(a), 1922(2).
We also reject OOR’s attempt to analogize this case to the Commonwealth Court’s prior holding in
PGCB. In PGCB, an agency employee failed to forward a records request to an open-records officer,
supposedly ignoring the request after deciding, in a solitary act, that the request was defective. 48 A.3d
at 505. The Commonwealth Court in PGCB concluded that the records request was “deemed denied”
because the agency refused to respond, and further held that written requests for records do not need
to be specifically addressed to the agency’s open-records officer or follow specific formatting guidelines
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in order to be valid. Id. at 508-10. While the outcome in PGCB (a deemed denial) is consistent with
OOR’s contention that the five business day response period under Section 901 commences when any
agency employee receives a records request, the cases are factually distinct. The issues raised in PGCB
and the Commonwealth Court’s analysis therein did not focus on the language of Section 901 pertaining
to the five business day period for responding to RTKL requests. Indeed, the Commonwealth Court only
mentioned Section 901 in passing. Id. at 511. Because of the different factual matrixes and given that
the interpretation of Section 901 was not at issue in PGCB, the Commonwealth Court’s holding in that
case simply has no bearing on our analysis in the one before us.
Finally, we reject the various policy arguments that OOR raises in opposition to the Commonwealth
Court’s plain language reading of Section 901. Primarily, OOR argues that if the five business day
response period under Section 901 commences upon receipt of a written record request by an agency’s
open-records officer, a Commonwealth agency like OG will be inclined to act in bad faith by delaying the
transmission of RTKL requests from its employees to its open-records officer, and thus frustrate the goal
of the RTKL to facilitate the speedy resolution of requests for information.
We presume that Commonwealth agencies will act in good faith in discharging their statutory duties
under the RTKL. See In re Redevelopment Auth. of Philadelphia, 938 A.2d 341, 345 (Pa. 2007) (citing
Robinson v. City of Philadelphia, 161 A.2d 1, 5 (Pa. 1960) (“Public officials are presumed to have acted
lawfully and in good faith until facts showing the contrary are averred, or in a proper case averred and
proved.”); In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 594 A.2d 1375, 1380 (Pa.
1991) (noting that a city planning commission, like a government agency, is “presumed to perform its
duties in good faith and according to law.”). Section 703 of the RTKL obliges agency employees who
receive RTKL record requests to forward the requests to the agency’s open-records officer. Further,
Section 901 specifically directs agencies to make a good faith effort to respond to RTKL requests as
promptly as possible, and in any event to respond within “five business days from the date the written
request is received by the open-records officer.” The fact that the RTKL leaves Commonwealth agencies
a measured amount of discretion in handling RTKL record requests before the requests reach the
agency’s open-records officer does not alter our presumption that Commonwealth agencies will follow
the directives in Section 901 and make a good faith effort to respond promptly to RTKL requests, in
keeping with the RTKL’s purpose of facilitating the speedy resolution of record requests submitted to
government bodies.
OOR also argues that the Commonwealth Court’s plain language reading of Section 901 will inhibit RTKL
requestors from exercising their statutory appeal rights under Section 1101 in the event that a deemed
denial occurs. Specifically, OOR contends that the Commonwealth Court’s holding will deny RTKL
requestors a reliable method for determining when their statutory appeal rights under Section 1101 are
triggered in the event that a deemed denial occurs. Section 1101 confers upon requestors the right to
file an appeal with the OOR within fifteen days of either a denial or a deemed denial; while according to
Section 901, a deemed denial occurs when an agency fails to respond timely to a RTKL record request.
Compare 65 P.S. §§ 67.1101 and .901. As OOR points out, if pursuant to Section 901, the five business
day period for responding to RTKL record requests begins to run from the date that a request is
submitted or forwarded to an agency’s open records officer, then a requestor cannot know with
14c-31
certainty (absent inquiry) when a deemed denial may occur and, correspondingly, when the fifteen day
window for appealing from a deemed denial will open and close.14
We recognize that the interplay between Section 901 and Section 1101 of the RTKL highlights what
appears to be a gap in the statutory scheme for processing RTKL record requests and appeals.15
However, while it appears that the RTKL may not sufficiently apprise requestors of the timing of their
statutory appeal rights under Section 1101, this does not serve as a valid basis for rejecting the plain
meaning of Section 901. See Walker, 842 A.2d at 400 (the best indicator of legislative intent is the plain
language of the statute). Indeed, notwithstanding the merits of either policy argument advanced by
OOR, we cannot re-construe Section 901 because we believe an alternative interpretation would
address certain unintended consequences of the law. See 1 Pa.C.S. § 1921(b) (when the words of a
statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute
“under the pretext of pursuing its spirit”). We leave the task of rectifying perceived deficiencies in the
statutory scheme of the RTKL to the legislature.16
In light of the foregoing, we conclude that pursuant to the plain language of Section 901 of the RTKL,
Commonwealth agencies must respond to RTKL record requests within five business days of the
request’s receipt by the agency’s open-records officer. The order of the Commonwealth Court is
therefore affirmed. Jurisdiction relinquished.
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Notes
1. Providing in relevant part:
Upon receipt of a written request for access to a record, an agency shall make a good faith effort
. . . to respond as promptly as possible under the circumstances existing at the time of the
request . . . . The time for response shall not exceed five business days from the date the written
request is received by the open-records officer for an agency. If the agency fails to send the
response within five business days of receipt of the written request for access, the written
request for access shall be deemed denied.
65 P.S. § 67.901.
2. A deemed denial furnishes the requestor the right to file an appeal with the OOR within fifteen
business days that the deemed denial becomes effective. See 65 P.S. § 67.1101(a).
3. OG named both OOR and Donahue as respondents in its declaratory judgment action. The
Commonwealth Court dismissed Donahue as a party to the declaratory judgment action on the
grounds that the Commonwealth Court is an improper forum for OG to file an original action
against Donahue.
4. This Court granted allocatur to consider this issue, namely whether the Commonwealth Court in
PGCB erred by holding that RTKL records requests do not need to be either specifically
addressed to the agency’s open-records officer or follow certain formatting guidelines in order
to be valid. PGCB, 48 A.3d 503 (Pa.Cmwlth. 2012), appeal granted 74 A.3d 1027 (Pa. 2013).
5. The impact of OOR’s interpretation of Section 901 extends to every Commonwealth agency,
which are all subject to the directives of the RTKL. See 65 P.S. §§ 67.302, .303, and .304
(providing that Commonwealth agencies, local agencies, legislative agencies, and judicial
agencies shall provide public records in accordance with the RTKL); see also 65 P.S. § 67.102
(defining Commonwealth agencies, local agencies, legislative agencies, and judicial agencies for
the purposes of the RTKL). Thus, while OG is not especially populous, we take judicial notice that
OOR’s interpretation of Section 901 would pose significant administrative challenges to agencies
such as the Department of Corrections or the Department of Public Welfare, which collectively
employ over 30,000 employees, any of whom, according to OOR, could serve as proper
recipients of RTKL record requests for the purpose of triggering the time requirements of
Section 901. See 2013 State Government Workforce Statistics, PENNSYLVANIA OFFICE OF
ADMINISTRATION,
http://www.oa.state.pa.us/portal/server.pt/community/workforce_statistics_(new)/20613/wor
kforce_statistics_new/1054504 (last visited Jan. 24, 2014).
6. The terms “exhaustion of statutory remedies” and “exhaustion of administrative remedies” are
at times used interchangeably in our decisional law. Compare Pennsylvania State Educ. Ass’n ex
rel. Wilson v. Commonwealth, 50 A.3d 1263, 1276-77 (Pa. 2012); Kowenhoven v. Cnty. of
Allegheny, 901 A.2d 1003, 1010-12 (2006); Pentlong Corp. v. GLS Capital, Inc., 820 A.2d 1240,
1245 (Pa. 2003); Borough of Green Tree v. Bd. of Prop. Assessments, Appeals & Review of
Allegheny Cnty., 328 A.2d 819, 824 (Pa. 1974). Given that the alternative to OG’s declaratory
judgment action is a statutory remedy as provided for in the RTKL, rather than an administrative
appeals process created by agency rules and regulations, for the sake of clarity we will utilize the
term “exhaustion of statutory remedies” in our analysis of this issue.
14c-33
7. OOR presumes that the rule requiring the exhaustion of statutory remedies operates to divest a
court of its subject matter jurisdiction. As we have recently noted, our decisional law is not clear
as to whether the exhaustion of statutory remedies doctrine implicates a court’s jurisdiction, or
whether the rule is a prudential concern serving as a pre-requisite to a court’s exercise of its
jurisdiction. See White v. Conestoga Title Ins. Co., 53 A.3d 720, 726 n.11 (Pa. 2012). It is
unnecessary to resolve this question in our disposition of this matter before the Court.
8. Additionally, OOR likens this matter to Marin v. Sec’y of Commonwealth., 41 A.3d 913
(Pa.Cmwlth. 2012) which this Court recently affirmed in a per curiam order. 66 A.3d 250 (Pa.
2013). OOR’s reliance on Marin is misplaced, as Marin does not address the jurisdiction of the
Commonwealth Court to entertain declaratory judgment actions over OOR. Rather, in Marin an
individual, allegedly attempting to register as a candidate in the 2010 congressional election,
petitioned the Commonwealth Court for a declaratory judgment proclaiming Section 910 of the
Election Code, 25 P.S. § 2870, unconstitutional, while also seeking an injunction barring OOR
from allowing public access to petitioner’s home address in accord with pertinent sections of
that code. The Commonwealth Court dismissed the portion of the action seeking to hold Section
910 of the Election Code unconstitutional, concluding that OOR had no role in the enactment or
enforcement of the Election Code, and was therefore neither a necessary nor appropriate party
to the case. Marin, 41 A.3d at 915.
9. Unlike in PSEA, there is no argument posited herein that, assuming the Commonwealth Court’s
jurisdiction and OG’s standing, OOR is not an indispensable party to this dispute, as indeed it
obviously is.
10. As it is unnecessary to the disposition of this present matter, we take no position with regard to
the Commonwealth Court’s order quashing OG’s direct appeal from the Donahue decision,
where the Commonwealth Court relied on its precedent in Ridgway’s Magnetics Co. v.
Commonwealth, 577 A.2d 969 (Pa.Cmwlth. 1990) (holding that a prevailing party’s mere
disagreement with a tribunal’s legal reasoning does not grant standing for purposes of appellate
review under Pa.R.A.P. 501). Order of the Cmwlth. Ct., No. 376 M.D. 2012 (July 2, 2012).
11. Section 703 provides in relevant part:
A written request must be addressed to the open-records officer designated pursuant to
section 502. Employees of an agency shall be directed to forward requests for records to
the open-records officer.
65 P.S. § 67.703.
12. Section 502 provides in relevant part:
(b) Functions. ...
(2) Upon receiving a request for a public record, legislative record or financial record, the
open-records officer [for an agency] shall do all of the following:
(i) Note the date of receipt on the written request.
(ii) Compute the day on which the five-day period under section 901 will expire and
make a notation of that date on the written request.
65 P.S. § 67.502.
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13. The factors in § 1921(c) are:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921(c).
14. In its opinion, the Commonwealth Court notes that Section 502 of the RTKL directs open-records
officers who are in receipt of a request for public records to note the date that a record request
is received for the purpose of computing the five day period under Section 901. Donahue, 59
A.3d at 1169 n.6. However, the fact that the open-records officer notes the date of receipt on
the record request does not aid the requestor in readily determining when a deemed denial
might occur and when his or her statutory appeal rights are triggered under Section 1101.
15. Indeed this is not the first time that this Court has noted a gap in the administrative and judicial
review process existing in the RTKL. See PSEA, 50 A.3d at 1278-81 (Castille, C.J., concurring);
SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012).
16. To the extent the RTKL is unclear and in need of interpretation, the legislature delegated to OOR
authority to promulgate regulations and issue advisory opinions, consistent with the act. See 65
P.S. § 67.504(a); 65 P.S. § 67.1310(a). OOR seems, however, to desire to employ these functions
as well as its adjudicatory role to alter its legislative underpinning, when it dislikes it. This it
cannot do. If OOR disagrees with the legislature’s intentions as set forth in the RTKL, its only
remedy is to seek an amendment to that act.
14c-35
706 C.D. 2013
February 20, 2014
Reporter’s summary: Requester appealed from a Department of Public Welfare denial of e-mail
addresses and direct phone numbers for certain Adams County Assistance Office workers. The court held
that although landlines and official government issued e-mail addresses are public, cellular telephones
and other e-mail addresses, even if used for official business as well as personal matters, are not.
Headnotes:
Personal identifying information: Information that is unique to a particular individual or which may be
used to identify or isolate an individual from the general population. It is information which is specific to
the individual, not shared in common with others; that which makes the individual distinguishable from
another. Delaware Cnty. v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1153 (Pa. Cmwlth. 2012).
Government issued cellular phones: “[T]he fact that government business may be discussed over an
employee’s government-issued personal cellular telephone does not make that telephone any less
‘personal’ within the meaning of the RTKL. Based on that reasoning and the absence of any indication in
the statute that the personal identification information exception does not apply to government-issued
personal or cellular telephone numbers, those numbers are not subject to disclosure,” quoting Office of
Governor v. Raffle, 65 A.3d 1105, 1111 (Pa. Cmwlth. 2013).
14c-36
Department of Public Welfare v. Robert Clofine
November 27, 2013, Submitted
February 20, 2014, Filed
BY JUDGE BROBSON
Petitioner Department of Public Welfare (DPW) petitions for review of a final determination of the
Office of Open Records (OOR). OOR granted Robert Clofine’s (Clofine) appeal from DPW’s partial denial
of his request for records under the Right-to-Know Law (RTKL).1 For the reasons set forth below, we
reverse.
On January 23, 2013, DPW received a RTKL request from Clofine, seeking the direct phone number and
e-mail address for Adams County Assistance Office income maintenance caseworker Vicki Miller, as well
as the names and direct phone numbers of all Adams County Assistance Office income maintenance
caseworkers. (Reproduced Record (R.R.) at 27a-28a.) DPW granted Clofine’s request as to the names of
all Adams County Assistance Office income maintenance caseworkers, but otherwise denied Clofine’s
request. (Id. at 28a.) DPW based its denial on its assertion that agency-issued telephone numbers and email addresses are personal information protected from disclosure by Section 708(b)(6)(i)(A) of the
RTKL.2 (Id.).
Clofine then appealed to OOR, challenging the partial denial. By final determination issued on March 27,
2013, OOR granted the appeal. Relying primarily on its own precedent, OOR concluded that agencyissued telephone numbers and e-mail addresses did not constitute personal identification information
that is exempt from disclosure under Section 708(b)(6)(i)(A) of the RTKL. With regard to agency-issued
telephone numbers, OOR reasoned that the term “personal telephone number” as used in Section
708(b)(6)(i)(A) could have many meanings and that OOR does not interpret a direct-dial agency-issued
telephone number to be one of the types of telephone numbers that falls within the definition of
“personal.” (Id. at 31a-32a.) OOR further reasoned that an agency-assigned and owned direct-dial
telephone number, unlike an employee identification number, is not “an inexorably connected identifier
to an agency employee in which the employee has a vested interest in its personal and confidential
nature.” (Id. at 32a.) OOR further explained that it has repeatedly held that agency-issued e-mail
addresses are not protected from disclosure under the RTKL. (Id.) OOR, therefore, required DPW to
provide all responsive records to Clofine’s request. (Id. at 33a.) DPW then petitioned this Court for
review.
On appeal,3 DPW argues that OOR erred in concluding that agency-issued direct-dial telephone numbers
and e-mail addresses do not fall within the personal identification information exemption set forth in
Section 708 of the RTKL. In short, DPW argues that the resolution of this matter is controlled by this
Court’s recent decisions in Office of the Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013)
(en banc), and Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013) (en banc).4 More
specifically, DPW argues that the holdings of those cases clearly establish that the information sought by
14c-37
Clofine on appeal is protected from disclosure under the personal identification information exemption
in Section 708(b)(6)(i)(A).
In Mohn, the requester submitted a RTKL request to the Office of the Lieutenant Governor (OLG),
seeking, inter alia, all agency-issued e-mail addresses for the Lieutenant Governor and two Board of
Pardons’ employees. Mohn, 67 A.3d at 125. “The OLG provided the government-issued e-mail addresses
. . . for the requested individuals that were held out to the public as e-mail addresses . . . at which the
public officials could be contacted but, citing the personal identification information exception to the
RTKL, denied the request to the extent it was seeking additional personal e-mail addresses for those
individuals used to communicate with other agency officials.”5 Id. at 126 (footnote omitted). The
requester appealed to OOR, which granted access to all agency-issued e-mail addresses for the
Lieutenant Governor. Id. The OLG appealed to this Court, arguing, in part, “that the Lieutenant
Governor’s secondary, government-issued e-mail addresses are exempt from disclosure under the
personal identification information exception to the RTKL.” Id. at 133.
This Court held in Mohn that the Lieutenant Governor’s secondary e-mail address fell within the
exemption provided in Section 708(b)(6)(i)(A) of the RTKL. Id. In so doing, we noted that the RTKL does
not define “personal identification information,” but that we have previously defined the term as
follows:
[I]nformation that is unique to a particular individual or which may be used to identify or isolate
an individual from the general population. It is information which is specific to the individual,
not shared in common with others; that which makes the individual distinguishable from
another.
Id. (alteration in original) (quoting Delaware Cnty. v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149,
1153 (Pa. Cmwlth. 2012)). Relying upon City of Philadelphia v. Philadelphia Inquirer, 52 A.3d 456 (Pa.
Cmwlth. 2012), wherein we explained that “[p]ersonal . . . does not mean that it has to involve a public
official’s personal affairs but also covers those documents necessary for that official that are personal to
that official in carrying out his public responsibilities,” this Court reasoned that while the secondary email address in question was used to conduct agency business, it was still personal to the Lieutenant
Governor. Id. (internal quotation marks omitted) (quoting City of Phila., 52 A.2d at 461). Thus, we
concluded that the e-mail address was exempt from disclosure.
In Raffle, a requester submitted a RTKL request to the Pennsylvania Office of the Governor (Governor’s
Office), seeking the government-issued telephone numbers of 56 Governor’s Office employees, among
other information. Raffle, 65 A.3d at 1107. The Governor’s Office provided the requester “with land-line
telephone numbers for each of those employees, but denied the request to the extent that it sought
additional cellular and/or personal telephone numbers.”
Id. at 1108. The requester appealed to OOR with regard to the information that was refused for 39 of
the Governor’s Office employees. Id. Subsequently, OOR ordered the disclosure of the requested
telephone numbers. Id. at 1108-09.
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On appeal to this Court, we held that the Governor’s Office was not required to disclose the “agencyissued cellular or personal telephone numbers of [the] 39 . . . employees.” Id. at 1111. In so doing, we
relied upon Mohn and noted that
the fact that government business may be discussed over an employee’s government-issued
personal cellular telephone does not make that telephone any less ‘personal’ within the
meaning of the RTKL. Based on that reasoning and the absence of any indication in the statute
that the personal identification information exception does not apply to government-issued
personal or cellular telephone numbers, those numbers are not subject to disclosure.
Id.
Here, we conclude that the information Clofine requests on appeal is protected from disclosure under
Section 708(b)(6)(i)(A) of the RTKL. Although there are facts in this case that, to a degree, distinguish it
from Mohn and Raffle, such distinctions do not warrant a different result given the binding precedent of
those en banc decisions. Specifically, Ms. Miller’s agency-issued e-mail address and the requested
agency-issued telephone numbers meet the definition of “personal identification information” as
previously interpreted by this Court, in that they constitute “information that is unique to a particular
individual,” “information which may be used to identify or isolate an individual from the general
population,” or “information which is specific to the individual, not shared in common with others; that
which makes the individual distinguishable from another.” Moreover, regardless of whether the agencyissued e-mail address or phone numbers in question are used to conduct agency business, they are still
personal to each Adams County Assistance Office income maintenance caseworker. OOR, therefore,
erred in concluding that such information does not fall within the personal identification information
exemption set forth in Section 708(b)(6)(i)(A) of the RTKL.6
Accordingly, we reverse the final determination of OOR.
14c-39
Notes:
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104. As previously explained by this Court,
[t]he RTKL was designed 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. The current version of the RTKL, passed in 2008, changed the method of access
to an individual’s personal information and set forth new criteria to determine whether
information is protected from disclosure. Under the current RTKL, a record in the possession of a
Commonwealth agency or local agency is presumed to be a public record unless (1) the record is
exempt under Section 708; (2) the record is protected by a privilege; or (3) the record is exempt
from disclosure under any other Federal or State law or regulation or judicial order or decree.
Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), entitled “Exceptions for public records,”
places the burden on the agency to prove by a preponderance of the evidence that a particular
record is exempt from public access.
Office of the Lieutenant Governor v. Mohn, 67 A.3d 123, 126 n.1 (Pa. Cmwlth. 2013) (en banc)
(citations omitted).
2. 65 P.S. § 67.708(b)(6)(i)(A). Section 708(b)(6)(i)(A) of the RTKL exempts, in part, the following as
“personal identification information”: “[a] record containing all or part of a person’s Social
Security number, driver’s license number, personal financial information, home, cellular or
personal telephone numbers, personal e-mail addresses, employee number or other
confidential personal identification number.”
3. Our standard of review of determinations made by appeals officers under the RTKL is de novo,
and our scope of review is plenary. Bowling v. Office of Open Records, __ Pa. __, __, 75 A.3d 453,
477 (2013).
4. Notably, both Mohn and Raffle were decided on April 24, 2013, nearly a month after OOR issued
its final determination in this matter.
5. Despite this denial, the OLG provided the personal e-mail addresses of the two Board of
Pardons’ employees, noting that it was doing so “outside of the RTKL,” by granting access to its
responses to another individual’s prior RTKL requests, as those responses already contained that
requested information. Mohn, 67 A.3d at 126 & n.4.
6. We decline the invitation of Clofine and OOR, which filed an amicus brief in this matter, to
overturn or otherwise “refine” this Court’s en banc decisions in Mohn and Raffle.
14c-40
Pennsylvanians for Union Reform v. State Employees’ Retirement System
113 A.3d 9
March 20, 2015
Reporter’s summary: This is a consolidated appeal which held that notice must be given to third
parties when personal information may be released to give the third party the opportunity to prove that
the information is exempt from release under a personal security exemption.
Headnotes:
Third Parties: When a request involves third party information which may be personal and not publicly
accessible, the third parties must be given notice and an opportunity to show why the information is
exempt from release.
Case law: This Court has held that neither the RTKL nor the courts have extended rights to discovery or to
due process to a requesting party under the RTKL. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 519 (Pa.
Cmwlth.), appeal denied, 31 A.3d 292 (Pa. 2011).
RTKL does not involve a property right because access to public records is a ‘privilege’ granted by the
General Assembly.” Prison Legal News v. Office of Open Records, 992 A.2d 942, 947 (Pa. Cmwlth. 2010).
14c-1
Pennsylvanians for Union Reform v. SERS
State Employee’s Retirement System v. Pennsylvanians for Union Reform
Argued: December 10, 2014
OPINION BY JUDGE BROBSON FILED: March 20, 2015
In this appeal from a final determination of the Pennsylvania Office of Open Records (OOR) under the
Right-to-Know Law1 (RTKL), we consider the merits of a request for names and home/mailing addresses
in the possession of a Commonwealth entity, in this case the State Employees’ Retirement System
(SERS).2 Both SERS and the requester, Pennsylvanians for Union Reform (PFUR), have appealed OOR’s
final determination. See Section 1301(a) of the RTKL, 65 P.S. § 67.1301(a) (granting right of appeal under
RTKL to requester or agency). We consolidated the appeals and designated PFUR as the petitioner. The
Pennsylvania Game Commission (Game Commission), the Pennsylvania Turnpike Commission (Turnpike
Commission), and the Pennsylvania State Education Association (PSEA) are participating as intervenors
in these consolidated appeals.3 For the reasons set forth below, we affirm in part, reverse in part, and
remand to OOR for further proceedings.
I. BACKGROUND
In a request dated August 23, 2013, PFUR sought the following from SERS: “The names and associated
home/mailing addresses of all active members, retired members (annuitants), and inactive vested
members of SERS.” (Reproduced Record (R.R.) 1a.) By letter dated August 30, 2013, SERS acknowledged
receipt of PFUR’s request and notified PFUR that it was extending the response period by an additional
thirty days pursuant to Section 902(b) of the RTKL, 65 P.S. § 67.902(b). By letter dated August 30, 2013,
PFUR informed SERS that it was narrowing its request to exclude information relating to employees of
OOR, judges of the Commonwealth Court, and justices of the Pennsylvania Supreme Court. (Id. 5a.) In
that same letter, PFUR expressed concern about and disagreement with the possibility that SERS, either
on its own or as a result of a directive issued by OOR, might attempt to notify individual SERS members
of PFUR’s request and invite objections by these “third parties.” (Id.)
In a letter dated September 30, 2013, SERS responded to PFUR’s request, granting it in part and denying
it in part. (R.R. 8a-10a.) SERS provided PFUR with the names and home addresses of 34,524 SERS
members. SERS, however, refused to provide access to the home addresses of law enforcement officers
and judges, citing the express exemption from access to this information set forth in Section
708(b)(6)(i)(C) of the RTKL, 65 P.S. § 67.708(b)(6)(i)(C). SERS also refused to provide the home addresses
of SERS members who reside in the same household as law enforcement officers and judges, reasoning
that the same exemption applies. SERS denied access to records of members seventeen years of age or
younger, citing the exemption from access set forth in Section 708(b)(30) of the RTKL, 65 P.S. §
67.708(b)(30) (“A record identifying the name, home address or date of birth of a child 17 years of age
or younger.”). SERS also denied access to information relating to retired members of SERS who have
attained superannuation age,4 citing the RTKL’s exemption from access under Section 708(b)(1)(ii), 65
P.S. § 67.708(b)(1)(ii), often referred to as the personal security exemption.5 Citing that same
exemption, SERS denied access to records relating to “approximately” 363 members who, either
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individually or through their employing agency, notified SERS of specific threats to their personal safety
and security.
Again citing the personal security exemption, SERS denied access to the records of another 78,784 active
SERS members employed by agencies under the jurisdiction of the Governor’s Office of Administration,
3,804 active members employed by “quasi-independent agencies,” and “approximately” 3,561 inactive,
vested members of SERS. SERS claimed that it was unable to determine whether any members within
these three groups had any particular security concerns and, therefore, invoked the exemption out of an
abundance of caution. SERS reasoned:
As you know, a blanket application of the personal security exception is not valid and will not withstand
judicial scrutiny. However, providing home addresses of all employees in those classes of members,
excepting no one based on the personal security exception, “would be reasonably likely to result in a
substantial and demonstrable risk of physical harm to or the personal security of” some of those
individuals.
(Id. 10a.) SERS, however, promised to continue its review of those records, anticipating that it may be
able to grant in part and deny in part that portion of the request by the end of the year or sooner. (Id.)
PFUR appealed the partial denial to OOR. Of the denials set forth in SERS’ response letter, PFUR
challenged the following:
(1) records of all law enforcement officers and family members within the same household;
(2) records of all judges (other than judges and justices of the Commonwealth Court and Pennsylvania
Supreme Court, respectively) and family members within the same household; and
(3) records of SERS members seventeen years of age or younger.
PFUR contended that because it did not seek any information that would identify any of these
individuals as law enforcement, judges and justices, or minors, SERS cannot claim that the records, on
their face, are exempt. (Id. 14a.)
PFUR also challenged SERS’ use of the personal security exemption to support denial of the records of
SERS members who have attained superannuation age. It also challenged SERS’ invocation of the same
exemption with respect to the 78,784 active SERS members employed by agencies under the jurisdiction
of the Governor’s Office of Administration, 3,804 active members employed by “quasi-independent
agencies,” and “approximately” 3,561 inactive, vested members of SERS. In the absence of specific
evidence of an individual concern for personal security, PFUR contended that SERS improperly invoked
the personal security exemption for these three classes of SERS members. (Id. 14a-15a.)
In addition to these specific objections, PFUR raised several additional points in its appeal to OOR. It
offered SERS additional time to respond to PFUR’s request and, concomitantly, offered to grant an
extension to OOR until December 31, 2013, to issue its final determination on PFUR’s appeal.6 PFUR also
noted that SERS’ response did not specifically mention members of SERS in the legislative branch. PFUR
contended that the names and addresses of those members should be released. Responding to a
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request made by a union to PFUR through PFUR’s web site, PFUR refused to exempt from its request
members of unions as a class. Finally, PFUR offered to exempt from its request any individual who
makes a request directly to PFUR, through a web link, to be exempted. (Id. 15a.)
On October 2, 2013, OOR acknowledged receipt of PFUR’s appeal. OOR gave PFUR and SERS seven days
to submit information and legal argument in support of their respective positions. In addition, OOR
advised SERS:
Agency Must Notify Third Parties: If records concern or pertain to an employee of the agency; constitute
confidential or proprietary or trademarked records of a person or business entity; or are held by a
contractor or vendor, the agency must notify such parties of this appeal immediately and provide proof
of that notice to the OOR within 7 business days.
Such notice must be made by 1) providing a copy of all documents included with this letter; and 2)
advising that interested persons may request to participate in this appeal (see 65 P.S. § 67.1101(c)).
(Id. 33a (emphasis in original).)7
Thereafter, the parties and OOR engaged in several communications relating to procedural matters,
mostly surrounding efforts to notify third parties of the PFUR appeal and an opportunity to participate.
On October 7, 2013, OOR informed the parties that it had established an email address that SERS
members could use to submit information to OOR regarding PFUR’s appeal. OOR refused to give SERS
additional time to notify its members of the appeal, absent good cause. OOR offered to provide SERS
with a link to its request to participate form, which SERS could send to its members. OOR, however, did
not require SERS to use the form. OOR gave SERS until October 11, 2013, to submit its evidence and
legal argument, at which point the record would be closed and only reopened for good cause. OOR,
however, also indicated that it would consider further extending the deadline in the future. (Id. 42a.)
OOR, over PFUR’s objection, later granted SERS additional time until December 6, 2013, to provide
notice to its members and agreed to keep the record open an additional ten business days. (Id. 46a.)
OOR granted requests to participate submitted by thirty Commonwealth agencies, four public employee
labor unions, and 3,851 individual SERS members who objected to the release of their information to
PFUR. OOR referred to these individuals and entities as “Direct Interest Participants.” After additional
sparring between SERS and OOR over procedure and the submission of additional information,
evidence, and legal arguments by SERS, PFUR, and others permitted by OOR to participate, PFUR, in a
reply to the third-party submissions, notified OOR on January 9, 2014, that it was withdrawing its appeal
in part. According to PFUR, as a result of this partial withdrawal, it sought names and home/mailing
addresses for only the following: (1) all individual members of SERS who notified OOR, directly or
indirectly, that they objected to the disclosure of their information (“Individual Objectors”); (2) all SERS
members who have an out-of-state or foreign country home/mailing address; (3) all members of the
Pennsylvania House of Representatives and Pennsylvania Senate; (4) individual members of SERS who,
in the course of the proceeding before OOR, were identified as members of the State College and
University Professional Association (SCUPA) and the Correctional Institutional Vocational Education
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Association (CIVEA), both of which are local association members of PSEA; (5) Governor Tom Corbett; (6)
Lieutenant Governor Jim Cawley; and (7) Pennsylvania Treasurer Rob McCord. (Id. 272a.)
OOR issued its final determination on the PFUR appeal on January 31, 2014.8 (Id. 307a-31a.) With
respect to the merits of PFUR’s appeal, OOR granted the appeal in part and denied the appeal in part.
OOR first rejected the argument, raised by several of the Direct Interest Participants, that there is a
constitutional right to privacy in one’s home address. OOR next rejected SERS’ argument that its
fiduciary duty to its members prevented SERS from releasing their names and home/mailing addresses.
OOR also held that SERS failed to meet its burden of proving that the records of SERS members who had
reached superannuation age are exempt from disclosure under the RTKL personal security exemption. In
a footnote, OOR also rejected SERS’ evidence as insufficient to support an exemption for the home
addresses of SERS members who are law enforcement officers or judges. OOR explained:
While SERS submitted an affidavit attesting that it is able to identify which SERS members are law
enforcement officers and judges, SERS’s affidavit failed to identify which SERS members fell into these
categories. Therefore, SERS has failed to meet its burden of proof that these exemptions shield the
requested records from disclosure.
(Id. 323a.) OOR also concluded that there was no evidence to support exemption of the home/mailing
addresses for the Governor, Lieutenant Governor, Treasurer, Senators, Representatives, and SERS
members with out-of-state or foreign country home/mailing addresses.
OOR rejected PSEA’s contention that the RTKL violated the due process rights of CIVEA and SCUPA
members, because it does not provide those members with notice and an opportunity to challenge
release of their personal information before an agency or a court. Although OOR sustained PFUR’s
appeal with respect to SCUPA members, it analyzed the issue of whether members of CIVEA should be
entitled to protection of their information under the personal security exemption (Section 708(b)(1) of
the RTKL) or the exemption from release of home addresses of law enforcement officers (Section
708(b)(6)(i)(C) of the RTKL). The Department of Corrections (Corrections) submitted affidavits to support
its contention that employees of Corrections, identified members of CIVEA, are entitled to the
protections of the personal security exemption. OOR agreed:
Individuals employed by [Corrections], including the identified members of CIVEA, are responsible for
the care, custody and control of over 50,000 inmates. While many of these inmates are non-violent
offenders, who may harbor no animosity to [Corrections’] employees and merely want to pay their debt
to society, [Corrections’] evidence makes clear that many inmates are violent individuals who would
harm not only Corrections Officers or their families, but also non-uniformed [Corrections’] employees,
such as those who provide educational services to inmates. Based on the evidence provided and the
record before . . . OOR, [Corrections] has met its burden of proof that the home/mailing addresses of
the identified members of CIVEA are exempt from disclosure.
(Id. 326-27a.)
Finally, OOR considered PFUR’s request for the names and home/mailing addresses of the Individual
Objectors, which number 3,851. Rather than address the merits of each of the individual objections,
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OOR held that PFUR waived any appeal with respect to the Individual Objectors. OOR reasoned that,
from the outset of its appeal, PFUR represented that it would withdraw its appeal with respect to any
SERS member who objected to the release of the member’s home/mailing address. OOR cited several
instances in the record where, OOR contended, PFUR made such a concession.
II. ISSUES ON APPEAL9
In its appeal, PFUR challenges OOR’s determination that PFUR waived its request for the Individual
Objectors’ home addresses. It challenges the procedures OOR implemented to allow individuals and
entities to participate in PFUR’s appeal under Section 1101(c) of the RTKL. PFUR specifically complains
that OOR violated both the RTKL and PFUR’s due process rights by allowing third parties to file
objections to PFUR’s appeal up to the date OOR issued its final determination in this matter, thereby
denying PFUR an opportunity to respond to those objections. PFUR also contends that OOR accepted
the Individual Objectors’ filings on an unverified form that lacked any evidentiary support. Because OOR
did not give PFUR an opportunity to challenge the Individual Objectors’ claims, OOR’s reliance on these
unverified filings is reversible error. PFUR’s third and final issue on appeal is whether OOR erred in
applying a blanket personal security exemption to the home/mailing addresses of all members of CIVEA
based on the evidence of record.
In its appeal, SERS contends that OOR erred in rejecting its contention that members of SERS who have
reached superannuation age are a vulnerable population, and, therefore, their home/mailing addresses
should be exempt from disclosure under the personal security exemption of the RTKL. SERS also
challenges OOR’s ruling with respect to applicability of the exemption for the home/mailing addresses of
law enforcement officers and judges.
Intervenors PSEA and Turnpike Commission press the argument that Pennsylvania citizens have a
constitutional right to privacy in their home addresses that must be considered before mandating
disclosure under the RTKL. They also raise concerns about the due process rights of individuals whose
personal information may be the subject of a request under the RTKL. PSEA also contends that OOR
erred when it failed to honor PSEA’s request, on behalf of all of its members, to withhold the release of
PSEA members’ home addresses.
Intervenor Game Commission contends that OOR failed to address two of its arguments. First, Game
Commission argues that one of its regulations, 58 Pa. Code § 131.9, exempts the release of the names
and home addresses of Game Commission employees. Second, Game Commission argues that all of its
employees’ home addresses should be protected under the RTKL personal security exemption.10
III. DISCUSSION
A. PFUR Appeal
1. The Individual Objectors
SERS provided notice of PFUR’s appeal to OOR to approximately 188,000 of its members. Nearly 4,000 of
those SERS members, active and retired, filed a form with OOR, objecting to the disclosure of their
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home/mailing address information. For the most part, it appears that these Individual Objectors used a
form created and made available by SERS (SERS Form). The form is titled “Request to Participate as a
Direct Interest Participant” and specifically references PFUR’s appeal before OOR. The form provides:
“Please accept this as a request to participate as a third party with a direct interest in a currently
pending appeal before [OOR] pursuant to 65 P.S. § 67.1101(c).” (R.R. 220a.)
The SERS Form includes five pre-printed bases to support SERS’ denial of access to the filer’s
home/mailing address: (1) the member or a household family member is or was a member of law
enforcement; (2) the member or a household family member is or was a judge; (3) the member is
seventeen years of age or younger; (4) the member has reached superannuation age; and (5) the
member has a personal security concern. In addition to selecting which of the pre-printed grounds the
member wishes to invoke, the SERS Form provides space for the member to describe how the member
believes his or her participation would assist OOR in rendering its final determination. It also invites the
member to attach additional information to the form. The form does not contain language to the effect
that the statements in the form are made under penalty of perjury—i.e., the SERS Form is not verified.
We first address whether OOR erred in concluding that PFUR waived or, more accurately stated,
withdrew its request for disclosure of the names and home/mailing addresses of the Individual
Objectors. Waiver, under the law, is the voluntary relinquishment of a known right or claim.
Commonwealth ex rel. Corbett v. Griffin, 946 A.2d 668, 679 (Pa. 2008). Waiver requires a “clear,
unequivocal[,] and decisive act” by the party asserting the right, evidencing the party’s intent to
surrender it. Id. In reviewing OOR’s stated bases for its conclusion and the record, we agree with PFUR
that OOR erred in concluding that PFUR withdrew its request for the Individual Objectors’ information.11
As noted above, PFUR modified its RTKL request on a couple of occasions. The last such filing with OOR
was on January 9, 2014. In that filing, PFUR clearly indicated that it was still seeking the names and
home/mailing address information for the Individual Objectors. In finding waiver/withdrawal, OOR
found that PFUR had made repeated and unequivocal statements that it would withdraw its appeal as to
any SERS members who objected to the release of their information. PFUR is correct, however, that it
never made this representation. At most, PFUR made an offer to all SERS members to withdraw its
request for their information if the SERS member registered at a PFUR-created web site. There is no
evidence in the record that all of the Individual Objectors accepted PFUR’s offer. Accordingly, OOR erred
in finding waiver. We remand this matter to OOR to consider whether the information submitted by the
Individual Objectors supports denial of PFUR’s request for any or all of the names and home/mailing
addresses of the Individual Objectors and to issue a final determination with respect thereto.
2. Procedural Challenges to Third Party Participation
We next address three procedural challenges to OOR’s handling of third-party participation requests.
PFUR first complains that OOR erred by allowing individuals and entities to file objections under Section
1101(c) of the RTKL up until the date OOR issued its final determination. Section 1101(c)(1) of the RTKL
provides that a written request to participate “may” be filed “within 15 days following receipt of actual
knowledge of the appeal.” PFUR argues that this means that if a third party fails to file the written
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request within this period of time, the third party is barred from submitting information to OOR under
Section 1101(c). This section of the RTKL also provides that a request to participate should be filed “no
later than the date the appeals officer issues an order.” Section 1101(c)(1) of the RTKL. It also provides
the OOR appeals officer the authority to grant a request to participate if, inter alia, a final decision has
not yet been issued and “the appeals officer believes the information will be probative.” Section
1101(c)(2) of the RTKL. We also find relevant Section 1102(b)(3) of the RTKL, 65 P.S. § 67.1102(b)(3),
which empowers the OOR appeals officer to “rule on procedural matters on the basis of justice, fairness
and the expeditious resolution of the dispute.” See Bowling v. Office of Open Records, 75 A.3d 453, 474
(Pa. 2013) (“All appeals officers are directed by the RTKL to make their decisions in an expedited fashion,
and they are given considerable discretion to achieve this goal.”).
In light of these provisions, the 15-day period in Section 1101(c)(1) of the RTKL, on which PFUR relies, is
more directory than mandatory. See Womak v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Phila.), 83 A.3d
1139, 1144 (Pa. Cmwlth.) (observing that time period in statute is mandatory where “essential to the
statutory purpose or where the statute itself indicates that performance within the time period is
mandatory”), appeal denied, 94 A.3d 1011 (Pa. 2014). As our Supreme Court recognized in Bowling, the
statutory procedures in the RTKL are “designed to dispose of most disputes in an efficient and timely
fashion.” Bowling, 75 A.3d at 474. For purposes of disposition of a requester’s appeal to OOR, the critical
and thus mandatory time period is the period within which the OOR appeals officer must render a final
determination. Section 1101(b)(1) of the RTKL requires an appeals officer to issue the final
determination within thirty days of receipt of the appeal, “[u]nless the requester agrees otherwise.”
Section 1101(b)(2) of the RTKL provides that failure of the appeals officer to issue a timely final
determination is treated as a deemed denial. The fact that the General Assembly chose to include the
deemed denial language in the statute bolsters our conclusion that the statutory deadline imposed on
OOR to issue a final determination is essential to the statutory purpose of the RTKL.
PFUR sought the names and home/mailing address of nearly 200,000 people, some of whom may have
adequate factual and legal bases to claim that their personal information should not be made public. In
our view, OOR took reasonable steps to ensure that these individuals had notice and an opportunity to
object to the disclosure of their personal information to PFUR. In so doing, the OOR appeals officer
acted within his statutory discretion. We see nothing in the record to indicate that OOR’s handling of the
third-party participation requests past the 15-day time period delayed resolution of PFUR’s appeal.
PFUR gave OOR until January 31, 2014, to issue its final determination, and OOR issued its final
determination on that date.
PFUR next argues that its due process rights were violated because OOR did not afford PFUR an
opportunity to challenge the submissions of the third parties. We reject this contention as well. This
Court has held that neither the RTKL nor the courts have extended rights to discovery or to due process
to a requesting party under the RTKL. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 519 (Pa. Cmwlth.),
appeal denied, 31 A.3d 292 (Pa. 2011). A requester has no right to a hearing before OOR and no right to
examine or cross-examine those who may oppose access to the requested records. Id. “[D]ue process
does not require a hearing because the right to information provided by the RTKL does not involve a
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property right because access to public records is a ‘privilege’ granted by the General Assembly.” Prison
Legal News v. Office of Open Records, 992 A.2d 942, 947 (Pa. Cmwlth. 2010).
Even if the RTKL did vest in a requester a right worthy of constitutional due process, due process is a
flexible concept, requiring only as much, or as little, as the situation warrants. See, e.g., Burger v. Bd. of
Sch. Dirs. of McGuffey Sch. Dist., 839 A.2d 1055, 1062 (Pa. 2003). As our Supreme Court acknowledged in
Bowling, the expedited procedures established by the General Assembly in the RTKL for review of
appeals before an OOR appeals officer are less formal and less robust than those that typically govern
the administrative agency adjudicatory process. See Bowling, 75 A.3d at 473. “[T]he essential elements
of due process in an administrative proceeding are notice and an opportunity to be heard.” McFadden v.
Unemployment Comp. Bd. of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). There can be no doubt that
the RTKL, even under its expedited framework, provides notice and an opportunity to be heard to a
requester. As for the ability to challenge written submissions from the agency or third parties under
Section 1101(c) of the RTKL, we have held:
[E]ven assuming arguendo that the RTKL does create a right that rises to the level of a property right in
the requested information, due process would not require a full-blown hearing. The private interest
affected—access to government documents—is relatively minor; the government’s interest in reducing
the fiscal and administrative burdens of responding to RTKL requests so that it can concentrate its
resources on its regular duties is high; and the likelihood that a full-blown hearing would lessen
erroneous deprivations of the right compared to reliance on written submissions is low.
Prison Legal News, 992 A.2d at 947. Accordingly, OOR did not violate PFUR’s procedural rights, either
under the RTKL or as a matter of due process, in accepting the third-party submissions without providing
PFUR an opportunity to respond.
PFUR’s third and final procedural challenge relates to the SERS Form. PFUR complains that the form has
no evidentiary value, because the form does not provide any indicia that the statements contained
therein are made under penalty of perjury. PFUR thus challenges the evidentiary weight that OOR could
afford these forms in evaluating the applicability of exemptions under the RTKL. As noted above,
however, OOR did not consider the merits of these submissions, choosing instead to find that PFUR
waived its request for the Individual Objectors’ information. Because we are reversing and remanding
that portion of OOR’s final determination, we will not rule on this particular procedural challenge. On
remand, OOR should consider PFUR’s objection to OOR’s reliance on any unsworn submissions of the
Individual Objectors.12
3. CIVEA—Personal Security Exemption
PFUR contends that the record before OOR is not sufficient to support application of the personal
security exemption under the RTKL to all members of CIVEA. This record appears to consist of a
submission, with accompanying affidavits, by Corrections. (R.R. 332a-436a.) In that submission,
Corrections contended that all of its employees’ names and home/mailing addresses should be exempt
under the RTKL on multiple grounds.
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An agency invoking the personal security exemption must establish on the record a reasonable
likelihood of a substantial and demonstrable risk to individual security if the requested information is
disclosed under the RTKL. Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 373 (Pa. Cmwlth. 2013). “Personal
security issues are of particular concern in a prison setting. Given the heightened risk associated with
prisons, representations regarding perceived threats to individual [Corrections] personnel posed by
inmates are persuasive.” Id. at 374. PFUR concedes in its brief that “there are positions within . . .
Corrections that would warrant consideration of personal security threats.” (PFUR Principal Br. at 50.) It
contends, however, that the affidavits submitted by Corrections are insufficient to establish that the
positions held by CIVEA members within Corrections fall within this sensitive class of Corrections
employees.
Corrections submitted several affidavits, many authored by Major Victor Mirarchi, Corrections’ Chief of
Security. In one particular affidavit, Major Mirarchi speaks to the safety of Corrections employees who
work within the agency’s prison facilities:
7. In [Corrections] we house more than 50,000 inmates and employ over 15,000 employees.
8. The inmates are committed to the care, custody, and control of [Corrections].
9. The inmates that are housed by . . . [Corrections] have been convicted of a variety of offenses, some
of which are the most violent and heinous.
10. Most of [Corrections’] employees are employed within a Correctional Institution or have regular
occasion to work in the correctional facilities and interact with inmates.
...
14. Agency employees are responsible to file misconducts against inmates when the inmates violate
prison policies and rules.
15. [Corrections] employees are subject to retaliation and harassment from inmates because they are
responsible for many decisions for which an inmate may harbor animosity towards them, such as the
promulgation of [Corrections] policy and decisions pertaining to housing, programming, classification,
employment, medical, mental health treatment, educational, etc., all of which have direct impact upon
inmates’ day to day life.
16. This retaliation takes the form of threats, harassment, assaults, or physical harm, or the filing of
fraudulent liens or other financially damaging documents.
17. After reviewing misconduct statistics from 2009-to the present, I have found that there were
approximately 314 misconducts filed by non-Corrections Officers [(non-CO)] against inmates for threats
made by inmates toward the employees and their families and assaults on non-CO staff. . . .
18. I have personal knowledge of instances of real harm done to employees’ physical person or finances,
or to the person or finances of those individuals closest to the employee, as a result of dissemination of
information such as what has been requested here.
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19. Unfortunately, incidents of physical and sexual threats and assaults against all levels of staff occur
periodically, both against staff inside and outside of the actual prison facilities. . . .
20. All employees within the confines of an institution have some level of contact with inmates.
(R.R. 347a-50a.) Major Mirarchi goes on to describe instances of brutal assaults by prisoners within
facilities on non-uniformed personnel. (Id. at 350a.) He also recounts an event, “years ago,” when an
upset family member of an inmate appeared at the home of a Corrections press secretary while the
employee was at work and his wife and young child were at home. (Id. at 351a.)
Major Mirarchi continues:
27. There are countless examples where administrative separations were required to be issued between
inmates and staff as a result of threats, stalking and physical assaults. Separations typically result in the
inmate being transferred to a different institution, which is often perceived negatively for the inmate
who must readjust to a new institution.
28. I am aware of many instances where [Corrections] employees have received threats from inmates
that upon their release from prison they will harm the employee and/or their families. These examples
extend to both uniform staff and non-security staff, including Central Office staff.
(Id.) Major Mirarchi concludes:
34. Because all Department employees have some level of interaction with inmates and all types of
employees have been involved in past instances of threats or physical harm, and for all of the foregoing
reasons, the disclosure of the home addresses of the [Corrections] staff is reasonably likely to result in a
substantial and demonstrable risk of physical harm to the staff members, their families, and/or other
residents of their homes.
(Id. 352a.) Other affidavits submitted by Corrections, authored by Major Mirarchi and others, express
similar concerns about personal security and safety of specific classes of employees within Corrections.
There is no single affidavit that addresses specifically members of CIVEA employed by Corrections.
Despite the lack of an affidavit tailored to CIVEA members, Major Mirarchi’s principal affidavit,
particularly the provisions recounted above, provides a sufficient basis upon which OOR could have
concluded that certain CIVEA members, those who are employed within correctional facilities and who
have regular and personal interaction with prisoners, are at a heightened risk of potential harm from a
disgruntled inmate. To be certain, this class of CIVEA members are subject to potential harm within the
prison walls. There is also sufficient, credible evidence within Corrections’ submission, however, to
support the conclusion that if these employees’ home addresses are readily available to disgruntled
prisoners through the RTKL, there is a reasonable likelihood of a substantial and demonstrable risk to
the individual security of these employees and their families beyond those walls.
For these reasons, we will affirm OOR’s determination with respect to members of CIVEA who are
employed within correctional facilities and who have regular and personal interaction with prisoners.
These employees’ names and home/mailing addresses are exempt under Section 708(b)(1)(ii) of the
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RTKL. Corrections, however, has failed to establish that the names and home/mailing addresses of CIVEA
members who do not meet these criteria should be exempt from disclosure under Section 708(b)(1)(ii)
of the RTKL.
B. SERS Appeal
1. Home/Mailing Addresses of Members of Superannuation Age
SERS asks that the Court apply the personal security exemption in Section 708(b)(1)(ii) of the RTKL to
exempt from disclosure the names and home/mailing addresses of those SERS members who are both
superannuated and retired. SERS contends that there is a “substantial and demonstrable risk that some
members of this class are especially vulnerable to fraud, financial exploitation, financial abuse or theft.”
(SERS Br. at 15.) As evidence of this age-related risk of harm, SERS submitted the affidavits of two
experts to OOR—Jason Karlawish, M.D., and J. Kenneth Brubaker, M.D.
In a separate appeal from OOR, this Court recently considered SERS’ argument and evidence, specifically
the Karlawish and Brubaker affidavits, with respect to this class of SERS members. For the reasons set
forth in State Employees’ Retirement System v. Fultz, ___ A.3d ___, ___ (Pa. Cmwlth., No. 206 C.D. 2014,
filed Jan. 9, 2015), slip op. at 11-20, we conclude that SERS has not met its burden of showing, through
the submission of competent evidence, the likelihood of a substantial and demonstrable risk to SERS
members and their beneficiaries who are superannuated and retired.
2. Law Enforcement Officers
SERS challenges OOR’s determination that SERS failed to establish that certain SERS members’ home
addresses are exempt under Section 708(b)(6)(i)(C) of the RTKL, relating to “[t]he home address of a law
enforcement officer or judge.” SERS argues that the affidavit of Joseph A. Torta, Director of SERS’ Office
of Member Services (Torta Affidavit), provides sufficient evidence to support application of the
exemption with respect to PFUR’s request. SERS believes that OOR’s analysis was erroneous, because it
was based on the idea that SERS had to identify each law enforcement officer and judge by name to
establish the exemption. In addition, SERS contends that evidence submitted by other agencies,
individuals, and entities before OOR supports the conclusion that this exemption is implicated by PFUR’s
request for SERS members’ home/mailing addresses.
In response, PFUR claims that it “does not seek the home addresses of law enforcement officers and
judges.” (PFUR Second Br. at 7.) Rather, PFUR complains that SERS improperly is withholding the names
and home addresses of SERS members who formerly served as law enforcement officers and judges.
PFUR also complains that SERS may be withholding the names and addresses of SERS members who
meet a broader definition of “law enforcement officers or judges” than contemplated by the RTKL
exemption. PFUR makes the following suggestion:
If the spreadsheet of names and home/mailing addresses to be disclosed by SERS contains home
addresses of individuals purported to be law enforcement officers or judges, SERS should not withhold
both the individuals’ names and home addresses, but rather redact the individuals’ home addresses.
[Section 706 of the RTKL,] 65 P.S. § 67.706. This will permit PFUR to identify the individuals and raise
15c-12
challenges to the individuals’ purported status as law enforcement officers or judges. There is no other
way to verify the accuracy of SERS’s assertions that an individual is a law enforcement officer or a judge.
Furthermore, there is no legitimate basis to withhold the names of law enforcement officers and judges.
(Id. at 7-8.) Section 706 of the RTKL provides, in relevant part:
If an agency determines that a public record, legislative record or financial record contains information
which is subject to access as well as information which is not subject to access, the agency’s response
shall grant access to the information which is subject to access and deny access to the information
which is not subject to access. If the information which is not subject to access is an integral part of the
public record . . . and cannot be separated, the agency shall redact from the record the information
which is not subject to access, and the response shall grant access to the information which is subject to
access.
The Torta Affidavit and other information before OOR are adequate to establish that SERS members
include law enforcement officers and judges. By law, the home addresses of law enforcement officers
and judges are exempt from disclosure. Accordingly, SERS may withhold from its response to PFUR the
home addresses of its member law enforcement officers and judges. In addition, we note our decision in
Fultz, where we opined:
By providing this blanket exemption [for home addresses of law enforcement officers and judges], the
General Assembly recognized that the home addresses of these at-risk individuals “should not and,
under law, will not be subject to disclosure.” It is clear that the purpose of this unconditional protection
afforded to the home addresses of law enforcement officers and judges is to reduce the risk of physical
harm/personal security to these individuals that may arise due to the nature of their job duties.
Permitting access to the home address of a law enforcement officer or judge in response to a RTKL
request seeking the address of a family member or beneficiary of one of these at-risk individuals would
erode the purpose of this express exemption. Thus, we hold that the specific exemption set forth in
Section 708(b)(6)(i)(C) exempts from access the home addresses of law enforcement officers and judges
even when the requester is seeking the address of an individual who also resides at the exempt address
....
Fultz, slip op. at 10-11 (quoting Delaware Cnty v. Schaefer, 45 A.3d 1149, 1153 (Pa. Cmwlth. 2012) (en
banc)). Accordingly, the home addresses of law enforcement officers and judges are exempt, regardless
of whether that address is tied directly to the law enforcement officer or judge or indirectly through the
record of a beneficiary or family member residing in the same household.
Names, however, are not protected under the Section 708(b)(6)(i)(C) exemption. As was the case in
Fultz, and with the exception of the class of CIVEA members discussed above, SERS here does not allege
that disclosure of the names of law enforcement officers and judges, or those within the same
household, would be reasonably likely to result in a substantial and demonstrable risk of harm to
personal security. Fultz, slip op. at 21-23. Accordingly, on remand, SERS shall provide PFUR a list of
member names responsive to PFUR’s request, as modified by PFUR on January 9, 2014, but whose
home/mailing addresses SERS is withholding pursuant to Section 708(b)(6)(i)(C). Before issuing its final
15c-13
determination on remand, OOR shall give PFUR an opportunity to object to this submission. If PFUR
objects, OOR shall address the objection(s) in its final determination on remand.
C. Right to Privacy in Home Address/Due Process
Intervenors PSEA and Turnpike Commission argue that Pennsylvania citizens have a constitutional right
to privacy in their home addresses that must be considered before mandating disclosure of this
information. This Court has already addressed and rejected this argument. See Office of Lieutenant
Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013) (en banc); Office of the Governor v. Raffle, 65 A.3d
1105 (Pa. Cmwlth. 2013) (en banc).
PSEA and Turnpike Commission also raise a concern about the due process rights of individuals whose
personal information may be the subject of a request under the RTKL. Based on the record before us, it
does not appear that PSEA or Turnpike Commission purport to represent the interests of any of the
34,524 SERS members whose names and home addresses SERS provided to PFUR in response to its RTKL
request without first providing its members with notice of and an opportunity to object to PFUR’s
request. Accordingly, PSEA’s and Turnpike Commission’s due process concern is not directed to any
particular disclosure by SERS in this case; rather, their concern is directed at the RTKL in general and its
processes, or lack thereof, to protect the interests of those individuals whose personal information is
the subject of a RTKL request.
We recently and thoroughly addressed this concern in Pennsylvania State Education Association ex rel.
Wilson v. Commonwealth, Department of Community and Economic Development, ___ A.3d ___ (Pa.
Cmwlth., No. 396 M.D. 2009, filed Feb. 17, 2015) (en banc) (PSEA IV). We will not restate the entirety of
the Court’s analysis in PSEA IV. The holding, nonetheless, bears repeating. After noting “the RTKL’s lack
of a mechanism to ensure that an affected individual has notice and an opportunity to be heard in order
to demonstrate that his or her personal information may be exempt from disclosure” under the
personal security exemption, we held:
[W]e declare that an agency, as defined in the RTKL, is prohibited from granting access to an individual’s
personal address information without first notifying the affected individual and providing that affected
individual with an opportunity to demonstrate that disclosure of the requested information should be
denied pursuant to the personal security exception as set forth in Section 708(b)(1)(ii) of the RTKL. We
further declare that . . . OOR is prohibited from granting access to personal address information of an
individual who objected to the disclosure of such information pursuant to the personal security
exception set forth in Section 708(b)(1)(ii) of the RTKL without first permitting that individual to
intervene as of right in an appeal from an agency’s denial of a requester’s request for access to such
information.
PSEA IV, slip op. at 12, 15-16 (footnotes omitted).
D. PSEA
In Part VII.C. of its brief, PSEA contends that OOR erred when it failed to honor PSEA’s request to
withhold the release of the home addresses of all PSEA members who are also members of SERS. The
15c-14
totality of SERS’ written argument on this issue comprises a single paragraph on approximately half of a
page of PSEA’s 26 page brief. PSEA does not cite to any record submission before OOR that would
support a blanket exemption for all PSEA/SERS members’ home/mailing addresses. Instead, PSEA
appears to contend only that because OOR denied access to the home/mailing addresses of the
Individual Objectors, even if they failed to provide a basis for their objection in their submission to OOR,
OOR should have done the same when PSEA lodged its objection.
PSEA misstates OOR’s ruling below with respect to the Individual Objectors. OOR did not hold that every
Individual Objector, regardless of the contents of their submission to OOR, was entitled to an exemption
under the RTKL with respect to their home/mailing addresses. As noted above, OOR never reviewed the
merits of the Individual Objectors’ objections to PFUR’s request, finding instead that PFUR had waived
its request for that information. For reasons set forth above, OOR erred in this regard, and we are
remanding to OOR to review the merits of each individual objection filed with OOR. PSEA’s contention,
then, that its class-based request for an exemption was treated differently than the requests for
exemptions filed by the Individual Objectors has no merit.
E. Game Commission
Game Commission contends that OOR failed to address the applicability of one of its regulations to
PFUR’s request. The regulation, which Game Commission promulgated in light of the passage of the
RTKL, provides, in relevant part:
Personal identifying information. Any request, the response to which includes personal identifying
information will be redacted so as to only provide that information necessary to identify the person to
[Game] Commission. Personal identifying information will not be disclosed as predeliberative,
proprietary or tending to result in a substantial and demonstrable risk of physical harm to the person or
the personal security of an individual and will not be disclosed without due process of law authorizing
and ordering the disclosure.
58 Pa. Code § 131.9. Game Commission argues that this regulation serves as an additional exemption
from disclosure of its employees’ home addresses under the RTKL. Specifically, it cites a portion of the
RTKL definition of “public record” that defines a public record to exclude a record that is “exempt from
being disclosed under any other Federal or State law or regulation or judicial order.” Section 102 of the
RTKL, 65 P.S. 67.102 (emphasis added).
There are several reasons why we reject Game Commission’s position. First, the regulation is poorly
drafted. As written, the first sentence appears to require the redaction of “[a]ny request” made to the
Game Commission under the RTKL if “the response . . . includes personal identifying information.” It
does not provide for the redaction or exemption of information responsive to a request under the RTKL.
Second, and assuming as Game Commission does that the language authorizes the redaction of
information from a RTKL response, the regulation mostly tracks exemptions that exist in the RTKL
relating to personal security (Section 708(b)(1)(ii) of the RTKL), predecisional deliberations (Section
708(b)(10)(i) of the RTKL, 65 P.S. § 67.708(b)(10)(i)), and proprietary information (Section 708(b)(11) of
the RTKL, 65 P.S. § 67.708(b)(11)). Accordingly, the regulation does not provide for an exemption in
15c-15
addition to and separate from the exemptions set forth in Section 708 of the RTKL.13 Finally, this
regulation only relates to how Game Commission handles a RTKL request. The request at issue here is a
request under the RTKL to SERS, not to Game Commission.
Next, Game Commission argues that all of its employees’ home addresses should be protected under
the RTKL personal security exemption. Because the home addresses of law enforcement officers
employed by Game Commission are exempt from disclosure under Section 708(b)(6)(i)(C) of the RTKL,
Game Commission’s personal security exemption argument relates to Game Commission’s other
employees. PFUR responds, however, that Game Commission’s submission to OOR is insufficient to
support an agency-wide exemption of the names and home/mailing addresses for Game Commission’s
employees. PFUR relies on reported decisions from this Court in Carey v. Department of Corrections, 61
A.3d 367 (Pa. Cmwlth. 2013), and Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013), in
support of its position.
Although OOR considered and ruled on the application of the personal security exemption to members
of CIVEA, OOR did not consider Game Commission’s request to exempt the names of all of its non-law
enforcement employees from disclosure under the same exemption. Accordingly, OOR should consider
on remand the adequacy of Game Commission’s submission and rule on the applicability of the
exemption to the names and home/mailing addresses of Game Commission’s non-law enforcement
employees.
IV. CONCLUSION
For the reasons set forth above, with respect to PFUR’s appeal, we reverse OOR’s determination that
PFUR waived its request for the names and home/mailing addresses of the Individual Objectors. We
remand to OOR to consider the merits of the Individual Objectors’ submissions. We conclude that
PFUR’s procedural challenges to OOR’s handling of third-party participation requests either lack merit or
are moot. We affirm OOR’s determination that the names and home/mailing addresses of members of
CIVEA are exempt under Section 708(b)(1)(ii) of the RTKL, but only with respect to the names and
home/mailing addresses of CIVEA members who are employed within correctional facilities and who
have regular and personal interaction with prisoners.
With respect to SERS’ appeal, we affirm OOR’s determination that SERS has not met its burden, through
the submission of competent evidence, that the names and home/mailing addresses of SERS members
and their beneficiaries who are superannuated and retired should be exempt under Section 708(b)(1)(ii)
of the RTKL. We reverse OOR’s determination that SERS failed to meet its burden of establishing
applicability of Section 708(b)(6)(i)(C) of the RTKL. On remand, SERS shall provide PFUR a list of member
names responsive to PFUR’s request, as modified by PFUR on January 9, 2014, but whose home/mailing
addresses SERS is withholding pursuant to Section 708(b)(6)(i)(C) of the RTKL. Before issuing its final
determination on remand, OOR shall give PFUR an opportunity to object to this submission. If PFUR
objects, OOR shall address the objection(s) in its final determination on remand.
The argument of Intervenors PSEA and Turnpike Commission that Pennsylvania citizens have a
constitutional right to privacy in their home addresses is rejected, consistent with this Court’s precedent
15c-16
on this question. Moreover, their concern regarding due process was addressed by the Court in PSEA IV.
PSEA’s argument that OOR erred when it failed to honor PSEA’s request to withhold the release of the
home addresses of all PSEA members who are also members of SERS is without merit.
Finally, we reject Game Commission’s contention that its regulation, 58 Pa. Code § 131.9, exempts the
names and home/mailing addresses of its employees from disclosure by SERS in response to PFUR’s
RTKL request. On remand, OOR is directed to consider Game Commission’s submission on the merits as
to the applicability of Section 708(b)(1)(ii) of the RTKL.
15c-17
Notes:
1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
2. Essentially, the RTKL request at issue here is for a list of names and home addresses. It is not a
request for a particular document(s) in the possession of an agency that happens to contain
name and home address information—e.g., a building permit, professional license, land
development plan, etc.—and that documents a particular transaction or activity of an agency.
This Court has held that not all information in an agency’s possession meets the definition of
“record” in Section 102 of the RTKL. See Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1262-64
(Pa. Cmwlth.) (holding personal emails on agency-owned computer not record under RTKL),
appeal denied, 54 A.3d 350 (Pa. 2012). Because the issue is not raised by any party, for purposes
of this appeal we assume that the list PFUR seeks in this matter is a “record” as defined under
Section 102 of the RTKL, 65 P.S. § 67.102.
3. The Office of General Counsel has filed a brief as amicus curiae in support of SERS’ position in
these consolidated appeals.
4. Depending on the employee’s class of service, “superannuation age” relates to either a
minimum number of years of credited service or an age threshold (e.g., 50, 55, or 60, depending
on class of service). 71 Pa. C.S. § 5102.
5. This provision exempts from disclosure “[a] record, 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.” Section 708(b)(1)(ii) of the RTKL.
6. Section 1101(b)(1) of the RTKL, 65 P.S. § 67.1101(b)(1), provides that the OOR appeals officer
must make a final decision on a RTKL appeal within thirty days of the receipt of the appeal,
“[u]nless the requester agrees otherwise.”
7. Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c), provides:
(c) Direct interest.-(1) A person other than the agency or requester with a direct interest in the record
subject to an appeal under this section may, within 15 days following receipt of actual
knowledge of the appeal but no later than the date the appeals officer issues an order, file a
written request to provide information or to appear before the appeals officer or to file
information in support of the requester’s or agency’s position.
(2) The appeals officer may grant a request under paragraph (1) if:
(i) no hearing has been held;
(ii) the appeals officer has not yet issued its order; and
(iii) the appeals officer believes the information will be probative.
(3) Copies of the written request shall be sent to the agency and the requester.
15c-18
8. PFUR again agreed to give OOR an extension of time to issue its final decision under Section
1101(b)(1) of the RTKL.
9. Our standard of review of determinations made by appeals officers under the RTKL is de novo,
and our scope of review is broad or plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477
(Pa. 2013).
10. Game Commission also asserts that SERS should not be required to respond to PFUR’s request,
because it would require SERS to create a new record. See Section 705 of the RTKL, 65 P.S. §
67.705 (providing that when responding to RTKL request, agency is not required to create record
that does not exist). In doing so, Game Commission raises a statutory protection that belongs to
the agency responding to a RTKL request. Because SERS did not raise this issue before OOR and
does not raise it on appeal to this Court, we will not address it.
11. Other than restating OOR’s waiver analysis, SERS does not attempt in its brief to defend OOR’s
waiver decision. Indeed, SERS notes that when OOR asked the parties for their position on the
possibility of waiver, SERS agreed with PFUR that PFUR had not waived its request for the
information about the Individual Objectors. (SERS Br. at 41.)
12. In Sherry, this Court held that testimonial affidavits could constitute sufficient evidence to
support the applicability of a RTKL exemption to a requested record. Sherry, 20 A.3d at 520.
13. It seems to us that in order for an agency to create by regulation an exemption for a record
that is otherwise subject to disclosure under the RTKL and that would apply to all RTKL
requests, regardless of the recipient of the request, the agency would need statutory
authority to create such an exemption. Because we do not construe Game Commission’s
regulation as creating a new exemption, we need not consider the question of whether
Game Commission has such authority.
15c-19
Table of Decisions
..................................................................13c-1
..................................................................13c-29
..................................................................13c-40
..................................................................10c-16
..................................................................12c-1
....................................................................10c-1
..................................................................14c-37
Joyce (House 2010-0010 JOY)
......................................................................10-7
..................................................................14c-1
Krawczeniuk (Senate, 03-2009)
....................................................................09-57
Krawczeniuk (Senate, 04-2009)
....................................................................09-61
Levy (Senate 01-2010)
....................................................................10-14
..................................................................11c-41
..................................................................13c-7
..................................................................14c-6
Lowell (House 2009-0008 LOW)
....................................................................09-44
..................................................................13c-33
Murphy (House 2010-0009 MUR)
......................................................................10-1
Nicholas (Senate, 05-2009)
....................................................................09-52
Noll (House, 2009-0004 NOL)
....................................................................09-25
..................................................................14c-18
Parsons (House, 2009-0005 PAR)
....................................................................09-31
Parsons (House, 2009-0007 PAR)
....................................................................09-35
..................................................................10c-37
..................................................................15c-1
TD-1
Signature Information Solutions, LLC v. Aston Township ..................................................................10c-31
Scolforo (Senate, 01-2009, 02-2009)
......................................................................09-1
Scolforo (House, 2009-0001 SCO)
......................................................................09-7
Scolforo (House, 2009-0002 SCO)
....................................................................09-13
Wolf (House, 2009-0003 WOL)
....................................................................09-19
TD-2

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