Office of the DA of Philadelphia v. R. Bagwell , 155 A.3d 1119 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Office of the District Attorney of :
Philadelphia , :
Appellant :
: CASES CONSOLIDATED
v. : Nos. 2627, 2641 C.D. 2015
: Submitted: October 7, 2016
Ryan Bagwell :
:
Office of the District Attorney of :
Philadelphia , :
Appellant :
:
v. :
:
Ryan Bagwell :
City of Philadelphia, :
Appellant :
: CASES CONSOLIDATED
v. : Nos. 435, 473 C.D. 2016
: Submitted: October 7, 2016
Ryan Bagwell :
:
City of Philadelphia :
:
v. :
:
Ryan Bagwell :
:
Appeal of: Office of District Attorney :
of Philadelphia :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: February 16, 2017
On February 17, 2016 Judge Linda Carpenter of the Court of
Common Pleas of Philadelphia County (Trial Court) issued an opinion and order
affirming the March 23, 2015 final determination of the Office of Open Records
(OOR) that ordered the production of certain documents responsive to a request
made by Ryan Bagwell (Requester) on September 29, 2014 (Request I) pursuant to
the Right to Know Law1 (RTKL). The City of Philadelphia (City) and the Office
of the District Attorney of Philadelphia (District Attorney) appealed the Trial
Court’s order to this Court and the appeals, docketed at Nos. 435 and 473 C.D.
2016, were consolidated for review.
Prior to the February 17, 2016 order, Judge Carpenter of the Trial
Court also issued orders on October 23, 2015 and on December 2, 2015 affirming a
separate but related request for records made by Requester on October 2, 2014
(Request II), and issued a civil penalty pursuant to Section 1305(a) of the RTKL.
The District Attorney appealed the October 23, 2015 and December 2, 2015 orders
issued by the Trial Court to this Court and the appeals, docketed at Nos. 2627 and
2641 C.D. 2015, have been consolidated for review.
On October 7, 2016, the two sets of consolidated appeals from the
Trial Court were submitted on briefs2 for disposition by this Court and, due to the
interrelated nature of the consolidated appeals, the following opinion will address
this Court’s reasons for affirming the Trial Court’s orders in the two consolidated
appeals.3
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
By order of this Court, Requester was precluded from filing a brief in these matters for failure
to comply with this Court’s scheduling orders.
3
Under the RTKL, when the request for records was directed to a local agency, the court of
common pleas is the “Chapter 13” court and reviews the determination issued by OOR with a de
2
I. Background
Request I
On September 29, 2014, Requester submitted the following
enumerated request for records to the City pursuant to the RTKL:
1. a document or documents that identify all backups of
the [City’s] Lotus Notes e-mail system that were created
between January 1, 2013, and August 31, 2013 and
currently exist;
2. all policies and procedures in effect from January 1,
2013 through August 31, 2013 that pertain to the backup
and archiving of the [City’s] Lotus Notes e-mail system;
3. all policies pertaining to [City] Internet and e-mail use
that were in effect from January 1, 2013 through August
31, 2013;
4. all letters, e-mails and memos sent to the [District
Attorney] in July and August 2013 regarding the [District
Attorney’s] conversion from using the Lotus Notes e-
mail system to the Microsoft Exchange e-mail system;
5. all records of network traffic emanating from the
workstation of [District Attorney] employee Frank Fina
between July 1, 2013 and September 31, 2013, including,
but not limited to, website browsing history;
6. records of inquiries from the [District Attorney]
about searching the [City’s] Lotus Notes and
novo standard and a plenary scope; the court of common pleas may substitute its own findings of
fact for that of the agency or rely upon the record created below. Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013) (Bowling II). When the court of common pleas is the
“Chapter 13” or reviewing court, our appellate review is limited to whether the trial court has
committed an error of law and whether the findings of fact are supported by substantial evidence.
Township of Worcester v. Office of Open Records, 129 A.3d 44, 49 n.2 (Pa. Cmwlth. 2016).
3
Exchange e-mail systems between July 1, 2013 and
September 31, 2014;
7. all records of technical support inquiries by [District
Attorney] employee Frank Fina from January 1, 2013
through September 31, 2013, and;
8. all [City] record retention policies in effect from
January 1, 2013, through September 31, 2014.
(Nos. 435/473 C.D. 2016: Certified Record (C.R.) Records Request I, Reproduced
Record (R.R.) at 14a (emphasis added).) Following an extension, the City denied
the request as a whole as “an improper attempt to circumvent the Court’s
jurisdiction over the discovery process,” and as relating to a judicial order, and
denied Item Nos. 1, 2, a portion of 5, 6 and 7 on the basis that no records existed
which were within the City’s possession, custody or control, and further denied
Item No. 5 on the basis that the use of the term “network traffic” was insufficiently
specific. (Nos. 435/473 C.D. 2016: C.R. November 19, 2014 City Response to
Records Request, R.R. at 16a-23a.) On November 20, 2014, Requester appealed
the City’s denial to OOR.4
On December 10, 2014, the City alerted Requester and OOR that
records responsive to Item Nos. 1, 2 and portions of 5 and 7 do not exist, but that
records responsive to Item No. 6 had been located; however, the City stated that
the records responsive to Item No. 6 were protected from disclosure by the
attorney work product doctrine and attorney-client privilege, as well as the internal
predecisional deliberations exception and due to the fact that the records were
created in connection with litigation. (Nos. 435/473 C.D. 2016: C.R. December
4
The District Attorney was permitted to participate along with the City in the proceedings before
OOR. Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c); State Employees’ Retirement System
v. Pennsylvania for Union Reform, 113 A.3d 9, 15, 19-21 (Pa. Cmwlth. 2015).
4
10, 2014 City Letter Brief to OOR.) On December 11, 2014, OOR required the
City to submit a privilege log no later than December 16, 2014 identifying the
records responsive to Item No. 6 and the reason for withholding each record. (Nos.
435/473 C.D. 2016: C.R. OOR Email Request for Privilege Log and City
Response.) On December 19, 2014, the City asserted in an email response to OOR
that OOR was without authority to require the City to submit a privilege log,
however, the City produced a privilege log nonetheless; the City also withdrew its
assertion of attorney-client privilege.5 (Id.; C.R. Privilege Log.) On January 5,
2015, OOR required the City to produce the records responsive to Item No. 6 for in
camera inspection by the close of business on January 16, 2015. (Nos. 435/473
C.D. 2016: C.R. OOR January 5, 2015 order.)
On March 23, 2015, OOR issued a decision granting Requester’s
appeal in part and denying it in part. (Nos. 435/473 C.D. 2016: C.R. OOR
Decision, R.R. at 24a-37a.) In its decision, OOR rejected the City’s assertion that
litigation between Requester and the District Attorney served as a bar to
production of documents responsive to Requester’s RTKL request and that a
judicial order denying access to documents sought through the discovery process
5
Office of Open Records v. Center Township, 95 A.3d 354 (Pa. Cmwlth. 2014) (en banc) was
decided June 24, 2014. In Center Township, we held that OOR has subject matter jurisdiction to
determine whether a record is exempt as privileged and that OOR has authority to request
production of a privilege log and to conduct in camera review of documents where a privilege
has been asserted. See also Township of Worcester v. Office of Open Records, 129 A.3d 44 (Pa.
Cmwlth. 2016) (accord); Bagwell v. Department of Education, 103 A.3d 409 (Pa. Cmwlth. 2014)
(en banc) (accord); Heavens v. Department of Environmental Protection, 65 A.3d 1069 (Pa.
Cmwlth. 2013) (accord). Moreover, this Court reaffirmed in Center Township that our decision
in City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012), had no bearing upon whether
OOR had subject matter jurisdiction to determine whether a record is exempt as privileged and
that Silver’s holding was strictly limited to the precept that OOR cannot order the disclosure of
records that fall within the ethics-based rule of confidentiality in Pennsylvania Rule of
Professional Conduct 1.6.
5
was determinative of whether the same documents were publicly accessible under
the RTKL. (Id. at 6-8, R.R. at 29a-31a.) OOR also concluded that Item No. 5 in
Requester’s request for responsive documents was sufficiently specific under the
RTKL. (Id. at 9-11, R.R. at 32a-34a.) Furthermore, OOR concluded after in
camera review of the records responsive to Item No. 6 that six of the documents
were subject to redaction under the work product doctrine but that the remainder
must be disclosed. (Id. at 11-14, R.R. at 34a-37a.) Finally, OOR concluded that
the City had met its burden of demonstrating that records responsive to Item Nos.
1, 2 and portion of 5 and 7 do not exist. (Id. at 8, R.R. at 31a.) The City and the
District Attorney appealed OOR’s decision to the Trial Court.6
The Trial Court affirmed OOR’s decision in a February 17, 2016
decision and order holding that OOR did not err in concluding that Item Nos. 5 and
6 were not protected from disclosure, and ordering disclosure of all documents
responsive to Items No. 5 and 6 of Requester’s September 29, 2014 RTKL request
to the City.7 (Nos. 435/473 C.D. 2016: Trial Court Decision and Order.) The City
and the District Attorney appealed the Trial Court’s order to this Court and have
limited the issue for our review to whether emails responsive to Item No. 6 of
Requester’s September 29, 2014 RTKL request are attorney information related to
pending or impending litigation. The Trial Court issued a 1925(a) opinion on
March 31, 2016.
Request II
6
On appeal to the Trial Court, the District Attorney filed a motion to intervene and the District
Attorney’s motion was granted by August 10, 2015 order of the Trial Court.
7
The parties reached an agreement regarding the remainder of the documents responsive to the
items requested and, accordingly, the Trial Court limited its holding to Items Nos. 5 and 6.
6
On October 2, 2014, Requester submitted the following enumerated
request for records to the District Attorney pursuant to the RTKL:
1. All record retention policies followed by the [District
Attorney] between January 1, 2013 and October 1, 2014;
2. All policies and procedures pertaining to the backup
and archiving of [District Attorney] e-mail servers that
were in effect between July 1, 2013 and October 1, 2014;
3. All policies governing employee use of [District
Attorney] computers and e-mail systems between July 1,
2013 and October 1, 2014;
4. All e-mails BJ Graham Rubin and Frank Fina
exchanged with each other between July 1, 2013 and
November 30, 2013 pertaining to my RTKL request that
was received by the [District Attorney’s] Open Records
Officer on July 22, 2013;
5. All e-mails BJ Graham Rubin and Seth Williams
exchanged with each other between July 1, 2013 and
November 30, 2013 pertaining to my RTKL request that
was received by the [District Attorney’s] Open Records
Officer on July 22, 2013;
6. All e-mails sent between Seth Williams and Frank
Fina between July 1, 2013 and October 1, 2014 regarding
Mr. Fina’s correspondence with Judge Barry Feudale;
7. All e-mails, memos and letters exchanged by the
[District Attorney] and the [City’s] Office of
Innovation and Technology between July 1, 2013 and
October 1, 2014 pertaining to searching for e-mails on
the [City’s] e-mail servers and/or backup copies of the
[City’s] e-mail servers;
8. All e-mails, letters and memos pertaining to the
[District Attorney’s] transition from Lotus Notes e-
7
mail platform to the Microsoft Exchange e-mail
platform between January 1, 2013 and December 31,
2013;
9. All e-mails sent or received by Seth Williams between
January 1, 2014 and October 1, 2014 pertaining to RTKL
legislation in the Pennsylvania General Assembly,
including but not limited to, Senate Bill 444.
(Nos. 2627/2641 C.D. 2015: C.R. Records Request II (emphasis added).)
Following an extension, on November 10, 2014, the District Attorney denied the
request with respect to Item Nos. 1-3 on the grounds that the request related to
litigation involving the District Attorney and Requester, and specifically to items
sought in a motion to compel filed by Requester that was denied by judicial order.
(Nos. 2627/2641 C.D. 2015: C.R. November 10, 2014 District Attorney Response
to Records Request, R.R. at 152a-154a.) The District Attorney further denied the
request with respect to Item Nos. 4, 5, 6 and 9 on the basis that no records existed
which were within the District Attorney’s possession, custody or control. (Id.)
Finally, the District Attorney denied the request with respect to Item Nos. 7 and 8
on the basis that the request was insufficiently specific and overly broad. (Id.) On
November 12, 2014, Requester appealed to OOR.
On November 21, 2014, the District Attorney alerted OOR that it was
producing records responsive to Item No. 3 of Requester’s request, but that it
maintained that Item Nos. 4, 5, 6 and 9 do not exist within the District Attorney’s
possession, custody or control, Item Nos. 7 and 8 were insufficiently specific to
respond to, and maintained that, despite its production, Item No. 3 was not subject
to access pursuant to a judicial order in ongoing litigation. (Nos. 2627/2641 C.D.
2015: C.R. November 21, 2014, District Attorney Brief to OOR.)
8
On January 12, 2015, OOR granted Requester’s appeal in part, and
denied it in part.8 (Nos. 2627/2641 C.D. 2015: C.R. OOR Decision at 1, R.R. at
224a.) OOR concluded that the District Attorney had met its burden to
demonstrate that records related to Item Nos. 4, 5 and 9 do not exist in the District
Attorney’s possession, custody or control. (Id. at 6, R.R. at 229a.) OOR further
concluded that, with respect to Item No. 6, the District Attorney had construed the
request too narrowly and failed to meet its evidentiary burden of proof to
demonstrate that the records sought did not exist. (Id. at 6-7, R.R. at 229a-230a.)
Next, OOR concluded that records responsive to Item Nos. 1 and 2 were not barred
from disclosure by litigation and, because no privileges or exemptions were
asserted, must be disclosed. (Id. at 7-10, R.R. at 230a-233a.) Finally, OOR
concluded that Item Nos. 7 and 8 were sufficiently specific and that the District
Attorney must produce responsive records. (Id. at 10-12, R.R. at 233a-235a.) The
District Attorney appealed OOR’s decision to the Trial Court. On September 9,
2015, one day prior to argument before the Trial Court, the District Attorney
informed Requester that it was turning over records responsive to Item Nos. 1 and
2 of Request II.9
On October 23, 2015 the Trial Court issued an opinion and order
affirming OOR’s decision and holding that OOR did not err in concluding that the
8
OOR also dismissed as moot Requester’s request for documents related to Item No. 3, as the
District Attorney produced the responsive documents. (Nos. 2627/2641 C.D. 2015: OOR
Decision at 1, 12-13, R.R. at 224a, 235a-236a.)
9
By September 9, 2015 letter disclosing records responsive to Items No. 1 and 2 of Request II,
the District Attorney informed Requester that, inter alia, “[w]hile the [District Attorney]
continues to believe that you improperly utilized the RTKL to circumvent an adverse discovery
order in a separate civil action, it has decided, after consultation with the City, to present this
challenge in an alternative context. This decision should not be interpreted as having any bearing
on the merits of the [District Attorney’s] arguments.” (Nos. 2627/2641 C.D. 2015: September 9,
2015, District Attorney Letter to Requester, R.R. at 282a.)
9
intended use of responsive records, even where those records had been the subject
of discovery disputes in litigation between the same parties, had no bearing on
whether the documents were publicly accessible records subject to disclosure
under the RTKL. (Nos. 2627/2641 C.D. 2015: Trial Court Op. at 3-5.) Next, the
Trial Court held that OOR did not err in concluding that Item Nos. 7 and 8 were
sufficiently specific and that the District Attorney was obligated to disclose
responsive records. (Id. at 6-7.) Accordingly, the Trial Court ordered the District
Attorney to “promptly disclose all documents responsive to Requests 1, 2, 7 and 8
as ordered for disclosure by the OOR’s decision of January 12, 2015,” and issued a
Rule to Show Cause why attorney’s fees, costs and/or penalties should not be
awarded pursuant to Sections 1304 and 1305 of the RTKL, 65 P.S. §§ 67.1304-
1305.
On December 2, 2015, following a hearing, the Trial Court issued an
order finding that “the [District Attorney’s] denial of [Requester’s Request II Item
Nos.] 1 and 2 was in bad faith,” and imposed a civil penalty of five hundred dollars
($500). (Nos. 2627/2641 C.D. 2015: Supplemental Record (S.R.) December 1,
2015, Hearing Transcript (H.T.).) The District Attorney appealed to this Court for
review of the Trial Court’s October 23 and December 2, 2015 orders and, on
March 31, 2016, the Trial Court issued an opinion in support of affirmance. We
would be remiss if we did not note that in its 1925(a) opinion, the Trial Court
specifically noted the District Attorney’s questionable representation of precedent
before OOR and the Trial Court. (Nos. 2627/2641 C.D. 2015: 1925(a) Op. at 4-5.)
In addition, the Trial Court reasoned that the imposition of a $500 civil penalty
pursuant to Section 1305(a) of the RTKL was warranted because the District
Attorney’s initial response to Requester and continued refusal to disclose Item
Nos. 1, 2, 7 and 8 following OOR’s final determination, stood in clear
10
contravention of the precedent of the courts of this Commonwealth and, therefore,
constituted bad faith. (Id. at 8-10.)
Before this Court, the District Attorney argues that the Trial Court
erred in imposing a penalty under Section 1305(a) of the RTKL and that Item Nos.
7 and 8 of Requester’s Request II are insufficiently specific, as the items seek
“years’ worth of technology-related correspondence between unidentified
employees of the [District Attorney] and the [City].” (Nos. 2627/2641 C.D. 2015:
District Attorney Brief at 19.)
Mandamus Action
On July 22, 2013, prior to the matters currently before this Court,
Requester submitted a RTKL request to the District Attorney, seeking:
[A]ll e-mails that were sent or received by Frank G. Fina
between December 1, 2012 and July 15, 2013, and were
sent to or from the following individuals:
1. Louis Freeh
2. Tom Cloud
3. Greg Paw
4. Barry Feudale
5. Randy Feathers
(OOR Final Determination at 1, Docket No: 2013-1586.) On August 23, 2013, the
District Attorney denied the request on the basis that it did not seek “records” as
defined by Section 102 of the RTKL, 65 P.S. § 67.102. (Id. at 2.) Requester
appealed the denial to OOR. (Id.) Before OOR, the District Attorney submitted a
position statement reasoning that Requester’s RTKL request did not implicate
public records of the District Attorney as the request related to the investigation of
Jerry Sandusky conducted by the Office of the Attorney General. (Id. at 2-3)
11
Requester submitted a response, arguing that the burden was on the District
Attorney to prove that records requested pursuant to the RTKL were not public and
that the District Attorney erred in modifying the request by adding a subject
matter, specifically investigations related to Sandusky. (Id. at 4.) The District
Attorney submitted an additional response, arguing that Requester’s RTKL request
had been insufficiently specific and, therefore, it had been necessary to interpret
the request as relating to the Sandusky investigation conducted by the Office of the
Attorney General. (Id. at 4.)
Following further development of the record, OOR issued a final
determination on November 4, 2013 concluding that Requester’s July 22, 2013
request had been sufficiently specific and that the request sought “records” within
the meaning of the RTKL. (Id. at 6-10.) Accordingly, OOR granted Requester’s
July 22, 2013 RTKL request and required the District Attorney to provide all
responsive records within thirty days. (Id. at 10.)
On December 30, 2013, Requester filed a complaint in mandamus in
the Trial Court seeking to compel the District Attorney to comply with OOR’s
November 4, 2013 order to provide all records responsive to Requester’s July 22,
2013 RTKL request. See Ryan Bagwell v. R. Seth Williams, In his Official
Capacity as District Attorney and Philadelphia District Attorney’s Office, (Pa.
Cmm. Pl. No. 3553, December Term, Case ID: 131203553) (Bagwell v. Williams)
(complaint). During the course of Requester’s mandamus action, Requester filed a
motion to compel the District Attorney to provide answers to interrogatories,
which included, inter alia, the following:
1. Provide any or all policies of the [District Attorney],
or any office or agency whose policies to which the
[District Attorney] must adhere, related to archiving,
12
preserving, backing up or destruction of e-mail
communications or e-mail data files or their contents on
the District Attorney’s office e-mail system.
2. As to data backups performed on all computer
systems currently in use or since December 1, 2012
identifying the following:
a. All procedures and devices used to back
up the software and the data, including but
not limited to name(s) of backup software
used, the frequency of the backup process,
the type of backup drives, including name
and version number, type of media (i.e.
DLT, 4mm, 8mm, AIT).
b. The individual(s) who conducted the
backup and the individual who supervised
the process.
3. Identify whether Frank Fina’s emails were backed up
since December 1, 2012 and describe the nature of the
backup.
See Bagwell v. Williams (Motion to Compel Answers to Interrogatories); (see also
Nos. 2627/2641 C.D. 2015: C.R. November 21, 2014 Requester Letter Brief to
OOR, Exhibit A, and November 21, 2014 District Attorney Brief to OOR, Exhibits
B & D.)
On September 26, 2014, Judge Idee Fox of the Trial Court issued the
following order denying Requester’s motion to compel:
AND Now, this 26 day of September, 2014, upon
Plaintiff’s Motion to Compel Answers to Interrogatories,
Defendant’s response thereto, oral arguments and
supplemental filings received from Defendant, it is
13
hereby ORDERED and DECREED that Plaintiff’s
Motion is DENIED.
Bagwell v. Williams (Order filed September 24, 2016); (see also Nos. 2627/2641
C.D. 2015: C.R. November 21, 2014 Requester Letter Brief to OOR, Exhibit B,
and November 21, 2014 District Attorney Brief to OOR, Exhibit E.)
The first of Requester’s RTKL requests at issue here was filed three
days after the Trial Court issued its order in Requester’s mandamus action denying
his motion to compel. Although the order speaks for itself, at the December 1,
2015 hearing before the Trial Court on penalties pursuant to Section 1304 and
1305 of the RTKL, the District Attorney stated: “within the context of the
discovery litigation, [the Trial Court] determined that those documents weren’t
subject to discovery because they were irrelevant.” (Nos. 2627/2641 C.D. 2015:
S.R. December 1, 2015 H.T. at 30 (emphasis added); November 21, 2014 District
Attorney Brief to OOR, Exhibit C); see also Bagwell v. William (District Attorney
Response to Requester’s Motion to Compel).
In the proceedings before OOR and the Trial Court giving rise to the
appeals now before this Court, both the District Attorney and Requester submitted
filings from the mandamus action. In pursuing the argument that the records
Requester sought were exempt from public access because the records related to a
judicial order, attorney-work product and ongoing litigation, it is this mandamus
action and the September 24, 2016 order issued by the Trial Court denying
Requester’s motion to compel interrogatories that the City and the District
Attorney are referring.
II. Discussion
14
In 2008, the General Assembly enacted the RTKL, replacing the Right
to Know Act10 and providing for significantly broadened access to public records.
Bowling v. Office of Open Records, 75 A.3d 453, 456 (Pa. 2013) (Bowling II).
Under the Right to Know Act, the burden of establishing that the records requested
bore the characteristics of public records lay with the requester. LaValle v. Office
of General Counsel, 769 A.2d 449, 458 (Pa. 2001). By contrast, under the RTKL,
agency records are presumed to be public records, accessible for inspection and
copying by anyone requesting them, and must be made available to a requester
unless they fall within specific, enumerated exceptions or are privileged. Bowling
II, 75 A.3d at 456. The RTKL requires a local agency to disclose public records11
and “may not deny a requester access to a public record due to the intended
use of the public record by the requester unless otherwise provided by law.”
Section 302 of the RTKL, 65 P.S. § 67.302 (emphasis added).
Under Section 305 of the RTKL, a record in possession of a local
agency “shall be presumed to be a public record,” however, the presumption
shall not apply if “(1) the record is exempt under section 708 of the RTKL; (2) the
record is protected by a privilege; or (3) the record is exempt from disclosure under
10
Act of June 21, 1957, P.L. 390, as amended, Act of June 29, 2002, P.L. 663, repealed by, Act
of February 14, 2008, P.L. 6, formerly, 65 P.S. §§ 66.1–66.9.
11
A record is defined under the RTKL as:
Information, 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 data-processed or image-processed document.
Section 102 of the RTKL, 65 P.S. § 67.102.
15
any other Federal or State law or regulation or judicial order or decree.” Section
305 of the RTKL, 65 P.S. § 67.305 (emphasis added). Under the RTKL, a
“privilege” is defined as including the attorney-work product doctrine. Section
102, 65 P.S. § 67.102.
The “burden of proving that a record of a…local agency is exempt
from public access shall be on the…local agency receiving a request by a
preponderance of the evidence.” Section 708 of the RTKL, 65 P.S. § 67.708(a)(1)
(emphasis added). A preponderance of the evidence is such evidence as would
lead a fact-finder to find that the existence of a contested fact is more probable than
the nonexistence of the contested fact. Pennsylvania Office of Attorney General v.
Bumsted, 134 A.3d 1204, 1210 n.12 (Pa. Cmwlth. 2016); Pennsylvania State
Troopers Association v. Scolforo, 18 A.3d 435, 438-439 (Pa. Cmwlth. 2011). A
local agency may provide affidavits to detail the search its RTKL officer
conducted for documents responsive to a RTKL request and the justification, if
applicable, for any exemption from public disclosure or privilege relied upon for
denying a requester access to responsive documents Office of Governor v.
Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013). Relevant and credible
testimonial affidavits may provide sufficient evidence in support of a claimed
exemption; however, conclusory affidavits, standing alone, will not satisfy the
burden of proof an agency must sustain to show that a requester may be denied
access to records under the RTKL. McGowan v. Pennsylvania Department of
Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014); Heavens v.
Pennsylvania Department of Environmental Protection, 65 A.3d 1069, 1074 (Pa.
Cmwlth. 2013). Moreover, the RTKL is remedial in nature and “is 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
16
their actions.” Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa.
Cmwlth. 2014). Therefore, in determining whether a record is exempt from
disclosure under the RTKL, exemptions from disclosure must be narrowly
construed so as not to frustrate the remedial purpose of the RTKL. Scolforo, 65
A.3d at 1100; Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth.
2010) (en banc) (Bowling I), affirmed, Bowling II.
Section 901 of the RTKL establishes the general rule for a local
agency’s response to a request made pursuant to the RTKL, mandating that
“[u]pon 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.” 65 P.S. §
67.901 (emphasis added). Section 901 of the RTKL also provides that a local
agency shall respond to a records request within five (5) business days; however,
Section 902 permits the local agency’s open-records officer to seek an extension of
the reply period if upon receipt of the request the local agency’s open-records
officer determines that one of seven enumerated exceptions applies and prevents
the local agency from responding to the request within the time allowed. 65 P.S.
§§ 67.901-67.902.
If a local agency responds to a requester’s RTKL request with a
denial, “whether in whole or in part, the denial shall be issued in writing and shall
include,” inter alia, “(1) a description of the record requested” and “(2) the specific
reasons for denial, including a citation of supporting legal authority.”12 Section
12
In the City’s response to Request I, it provided as “Generally Applicable Grounds for Denial,”
the following:
17
903 of the RTKL, 65 P.S. § 67.903. The local agency’s denial must also advise the
Your request in its entirety is denied as an improper attempt to
circumvent the Court[’s] jurisdiction over the discovery process.
The [RTKL] provides that if its provisions “regarding access to
records conflict with any other federal or state law, the provisions
of this act shall not apply.” [Section 3101.1 of the RTKL,] 65 P.S.
§ 67.3101.1. The Commonwealth Court has recognized that the
use of the [RTKL] to circumvent the civil discovery process would
be improper when used to avoid the notification requirements of
the Pennsylvania Rules of Civil Procedure. See [Department] of
Health v. Office of Open Records, 4 A.3d 803, 812 n. 11 [(Pa.
Cmwlth. 2010)] (interpreting the [RTKL] to avoid exempt [sic] the
release of requested records, but noting that if the Court were to
determine otherwise, “we would, as the Department and Amici
Curiae point out, be paving the way for circumvention of the civil
discovery process.”). For example, Pennsylvania Rules of Civil
Procedure [Nos.] 4009.21 and 4009.22 provide the procedure for
serving a subpoena upon third parties and the rules expressly
require notice and allow for the opportunity for objection before
the subpoena is served. Pa.R.C.P. [No.] 4009.21.
Moreover, in the alternative, your request is denied as improperly
attempting to circumvent the order by Judge Idee Fox, issued
September 26, 2014, denying your Motion to Compel Answers to
Interrogatories in Bagwell v. R. Seth Williams, Dec. Term 2013
No. 03553 (Order, Comm. Pl. Sept. 26, 2014).
(Nos. 435/473 C.D. 2016: C.R. November 19, 2014 City Response to Records Request, R.R. at
17a.) In response to Request II, the District Attorney stated the following:
At the outset, your first three requests are, as you are aware, the
subject of independent litigation regarding a motion you served on
the District Attorney to “Compel Answers to Interrogatories,”
which the [Trial Court] denied on September 26, 2014. A copy of
that order is attached as Appendix A, for your convenience. The
RTKL was not intended to provide for, [sic] disclosure of materials
based on a request that is a plain attempt to circumvent a judge's
discovery order.
(Nos. 2627/2641 C.D. 2015: C.R. November 10, 2014 District Attorney Response to Records
Request, R.R. at 153a.)
18
requester of the procedure by which the requester may appeal the denial to OOR.
Section 903(5) of the RTKL, 65 P.S. § 67.903(5).
If a requester appeals a denial issued by a local agency to OOR, the
burden remains on the local agency to demonstrate by a preponderance of evidence
that the request was denied because the records sought were not subject to
disclosure under Section 305 of the RTKL. Bowling II, 75 A.3d at 467; Ali v.
Philadelphia City Planning Commission, 125 A.3d 92, 100 (Pa. Cmwlth. 2015).
Request I Item No. 6
Pending Litigation
The City and the District Attorney have filed a joint brief in support of
their argument that the Trial Court erred in affirming OOR’s determination that
emails responsive to Item No. 6 of Request I—records of inquiries from the
District Attorney about searching the City’s Lotus Notes and Exchange e-mail
systems between July 1, 2013 and September 31, 2014—were subject to disclosure
under the RTKL, although six of the responsive documents were subject to
redaction. In support of their position, the City and the District Attorney rely on
Schenck v. Township of Center, Butler County, 893 A.2d 849 (Pa. Cmwlth. 2006).
In their brief, the City and the District Attorney argue that this Court’s
decision in Schenck, which was decided under the now repealed Right to Know
Act, holds that “all information from government attorneys ‘relating to pending or
impending litigation is inaccessible’ through the [Right to Know Act].” (City and
District Attorney Joint Brief at 13 (emphasis supplied).) However, in Schenck, this
Court very clearly stated: “we hold that the description of litigation-related services
in a solicitor’s invoice is not accessible under either the [Right to Know Act] or the
19
Sunshine Act[13] in the absence of consent from the client municipality.” Id. at
855. Our holding was thus quite distinguishable from the one the City and the
District Attorney represent in their brief. Moreover, our limited holding in
Schenck was further tempered by our Supreme Court’s decision in Levy v. Senate
of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013) (Levy II), where the Court, under the
RTKL, disclaimed any per se application of the attorney-client privilege, holding
instead that “the relevant question is whether the content of the writing will result
in disclosure of information otherwise protected by the attorney-client privilege.”
Id. at 373; see also Schenck v. Township of Center, Butler County, 975 A.2d 591,
599 (Pa. 2009) (Saylor, J. dissenting from dismissal of appeal as improvidently
granted, joined by Castille, C.J.); Office of Open Records v. Center Township, 95
A.3d 354, 371 (Pa. Cmwlth. 2014) (en banc) (holding that OOR properly ordered a
local agency to produce documents for in camera review where the local agency
based its refusal to disclose records subject to the RTKL on bald allegations of
privilege).
The reasoning underpinning our holding in Schenck, from which the
City and the District Attorney selected their quotation, relies upon the fact that the
Right to Know Act, like the RTKL, was part of a series of legislative enactments
designed to provide a comprehensive system governing access to meetings and
hearings of municipal governing bodies. Therefore, in Schenck we construed the
Right to Know Act along with the Sunshine Act and reasoned that:
A provision in the Sunshine Act permits an agency to
conduct some of its business in executive session, outside
13
65 Pa.C.S. §§ 701–716. The former Open Meeting Law, Act of July 19, 1974, P.L. 486, as
amended, formerly 65 P.S. §§ 261–269, was repealed by the former Sunshine Act, Act of July 3,
1986, P.L. 388, as amended, formerly 65 P.S. §§ 271–286, which in turn was repealed and
reenacted in codified form by the Act of October 15, 1998, P.L. 729.
20
the view of the public. Thus, 65 Pa.C.S. § 708(a)(4)
permits an executive session so the agency may “consult
with its attorney or other professional advisor regarding
information or strategy in connection with litigation or
issues on which identifiable complaints are expected to
be filed.” This provision acknowledges that the public
would be better served if the governing body had private
discussions on matters in litigation prior to public
resolution. Reading Eagle Co. v. Council of City of
Reading, [627 A.2d 305 (Pa. Cmwlth. 1993)]. If
knowledge of litigation information became public, it
would impair a municipality’s ability to defend those
matters. Id.
This statutory exception from the disclosure provisions of
the Sunshine Act broadly relates to information in
connection with pending or impending litigation. It is
not limited to attorney work product.
Construing the [Right to Know Act] and the Sunshine
Act together as one statute and as part of a uniform
system of jurisprudence, this exception from disclosure
applies here. Indeed, it would be absurd if litigation
information from the solicitor was protected the
evening of a municipal meeting, but it could be
accessed the next morning through a description of
litigation-related legal services in an invoice. We
presume such an unreasonable result is not intended.
1 Pa.C.S. § 1922(1). Under this construction, it is not
necessary for a trial court to read every invoice and
evaluate every described service for the presence of
attorney work product. Instead, all information from
the solicitor relating to pending or impending
litigation is inaccessible.
Schenck, 893 A.2d at 854 (emphasis added). In the instant matter, Requester is not
seeking disclosure of information via the Right to Know Act that is specifically
protected from disclosure by the Sunshine Act. Rather, the City and the District
21
Attorney are seeking to prevent disclosure of information subject to disclosure
under the RTKL on the basis that disclosure of the information was not compelled
in an unrelated civil matter and, alternatively, is protected by the work-product
doctrine. Therefore, even if Schenck provided firm ground for the proposition that
“all information from the solicitor relating to pending or impending litigation is
inaccessible,” Schenck would have no bearing on the matter before us. Id.
(emphasis added).
Attorney-Work Product Privilege
A mere assertion that responsive documents are protected from
disclosure under the RTKL by the attorney-work product privilege is insufficient to
deny disclosure. Instead, the party seeking to deny disclosure by asserting the
attorney-work product privilege is required to demonstrate that the documents
reveal “the mental impressions of a party’s attorney or his or her conclusions,
opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.
R.C.P. No. 4003.3; Section 102 of the RTKL, 65 P.S. § 67.102 (defining
“privilege” to include the attorney-work product doctrine). In addition, the
privilege may be asserted by demonstrating that “[w]ith respect to the
representative of a party other than the party’s attorney,” the responsive records
include “disclosure of his or her mental impressions, conclusions or opinions
respecting the value or merit of a claim or defense or respecting strategy or
tactics.” Pa. R.C.P. No. 4003.3. The attorney-work product privilege has been
interpreted in the courts of this Commonwealth to offer broad protection to the
mental impressions, theories, notes, strategies, research and the like created by an
attorney in the course of his or her professional duties, particularly in anticipation
or prevention of litigation; however, as reflected in the text of the rule, the
privilege is more narrowly applied to representatives of a party other than the
22
party’s attorney. Levy II, 94 A.3d at 443-444; Heavens, 65 A.3d at 1077 (citing
Gillard v. AIG Insurance Co., 15 A.3d 44, 59 n.16 (Pa. 2011)); see also Pa. R.C.P.
No. 4003.3, cmt.14
In asserting Item No. 6 of Request I did not implicate public records
because the responsive items consisted of information protected by the attorney-
work product privilege, the City and the District Attorney submitted an affidavit
sworn under penalty of perjury by BJ Graham-Rubin, District Attorney Chief of
Civil Litigation and RTKL Open-Records Officer. (Nos. 435/473 C.D. 2016: C.R.
December 10, 2014 City Letter Brief to OOR, Exhibit C.15) Following in camera
14
The explanatory comment to Rule 4003.3 describes the “broad category” of work product
materials but also limits the work product exception as follows:
The essential purpose of the Rule is to keep the files of counsel
free from examination by the opponent, insofar as they do not
include written statements of witnesses, documents or property
which belong to the client or third parties, or other matter which is
not encompassed in the broad category of the “work product” of
the lawyer. Documents, otherwise subject to discovery, cannot be
immunized by depositing them in the lawyer's file. The Rule is
carefully drawn and means exactly what it says. It immunizes the
lawyer's mental impressions, conclusions, opinions, memoranda,
notes, summaries, legal research and legal theories, nothing more.
Pa.R.C.P. No. 4003.3, cmt.
15
The affidavit, in addition to being signed and dated, stated:
I, BJ Graham-Rubin, am the Chief of the Civil Litigation Unit for
the [District Attorney], and am authorized to execute this affidavit.
I state the following to the best of my knowledge, information and
belief under penalty of perjury pursuant to 18 Pa. C.S. § 4904
relating to unsworn falsification of authorities:
1. I am familiar with the request at issue in the above captioned
appeal.
2. I have reviewed records responsive to the portion of Mr.
Bagwell’s request seeking “records of inquiries from the [District
23
review of the records responsive to Item No. 6 of Request I, OOR disagreed,
finding that the burden to establish that the privilege shielding attorney-work
product from disclosure under the RTKL applied to the records responsive to Item
No. 6 of Request I was met only in regards to portions of six emails. (Nos.
435/473 C.D. 2016: C.R. OOR Decision at 13, R.R. at 26a.) OOR found:
Many of the e-mails withheld in this matter do not
disclose such mental processes, i.e., the attorney’s mental
impressions, conclusions, opinions, memoranda, notes or
Attorney] about searching the [City’s] Lotus Notes and Exchange
e-mail systems between July 1, 2013 and September 31, 2014
(hereinafter, the “Responsive Records”).
3. All Responsive Records are messages from [District Attorney]
attorneys pertaining to specific discovery requests made in
litigation that was active at the time the messages were sent, or to
[RTKL] requests that were pending at the time the requests were
made. The messages ask other City employees to collect and/or
hold certain email messages.
4. The Responsive Records, specifically the Responsive Records’
instructions from [District Attorney] attorneys to other City
employees regarding certain email messages, wholly constitute
[District Attorney] attorneys’ work-product, because the messages
constitute and/or reveal the mental impressions and conclusions of
[District Attorney] Attorneys.
5. The Responsive Records are messages sent from [District
Attorney] employees regarding litigation that was active and/or
pending at the time the messages were sent. These messages were
internal to the [City], i.e. they were sent from [District Attorney]
attorneys to other City employees.
6. The Responsive Records are email messages from [District
Attorney] attorneys to the City’s [Office of Information
Technology] Department which pertain to [RTKL] requests and/or
litigation pending at the time the requests were made, and contain
predecisional deliberations of the [District Attorney] employees
regarding litigation of those cases.
24
summaries, legal research or legal theories. In fact, most
of the e-mails are directives from an attorney, the
scheduling of meetings and calls, questions and e-mails
from non-attorneys. Many other withheld e-mails are
from non-attorneys and do not qualify for protection
under the attorney-work product doctrine, i.e., mental
impressions, conclusions or opinions respecting the value
or merit of a claim or defense or respecting strategy or
tactics.
(Id.) Accordingly, OOR ordered the responsive records disclosed, along with
redactions for the subset of six records that contained a few sentences of privileged
information. The Trial Court concluded that there were no grounds upon which to
disturb OOR’s determination. We agree.
The City and the District Attorney asserted before the Trial Court, as
they have in their brief to this Court, that the records responsive to Item No. 6 of
Request I are protected by the attorney-work product privilege. However, a mere
assertion of the privilege is insufficient to show its applicability. Before the Trial
Court, it was incumbent upon the City and the District Attorney to put forth
concrete evidence or fact-specific argument that, contrary to OOR’s findings, the
responsive records contain attorney-work product and that OOR erred in
concluding that they had not met their evidentiary burden to show that the privilege
applied. Instead, the City and the District Attorney did not offer any basis to
dispute OOR’s findings that the majority of the emails do not contain material
protected by the attorney-work product privilege. The City and the District
Attorney could have submitted such a fact-based argument to the Trial Court under
seal if their concern was that discussing the material in a brief would necessitate
disclosure of exactly what they were trying to protect but they chose instead to rely
on a mere assertion of privilege and Schenck. They have done so again in this
25
Court and we are as equally unpersuaded as the Trial Court that OOR erred and
that, excepting the portions of six emails redacted by OOR, the responsive
documents are privileged from disclosure because the documents contain attorney-
work product.
Judicial Order
A party may also demonstrate that a record responsive to a request
under the RTKL is exempt from disclosure due to a federal or state law, regulation,
or a judicial order or decree. Section 305 of the RTKL, 65 P.S. § 67.305; see, e.g.,
Office of the Budget v. Campbell, 25 A.3d 1318, 1320 (Pa. Cmwlth. 2011) (holding
that because federal law exempted W-2 forms from disclosure, they were not
public records under the RTKL). However, because the RTKL precludes a local
agency from denying a request due to the intended use of the public record by the
requester, the mere fact that the requester may be involved in litigation adverse to
the local agency and was denied access to the record by a judicial order is of no
moment to whether the record is accessible via the RTKL. Michak v. Department
of Public Welfare, 56 A.3d 925, 930 (Pa. Cmwlth. 2012); City of Allentown v.
Brenan, 52 A.3d 451 (Pa. Cmwlth. 2012); Chester Community Charter School v.
Hardy, 38 A.3d 1079, 1089 (Pa. Cmwlth. 2012) (Hardy I), vacated and remanded
on other grounds, 74 A.3d 118 (Pa. 2013) (Hardy II).16 The analysis of whether a
16
The Supreme Court’s order in Hardy II stated:
PER CURIAM.
AND NOW, this 28th day of August, 2013, the Petition for
Allowance of Appeal is GRANTED, LIMITED to the following
issue as framed by Petitioner:
Does the Right–to–Know Law preclude a local
agency from arguing on appeal to the Office of
Open Records and to subsequent courts the bases
26
record is discoverable in this jurisdiction and beyond is entirely distinct from
whether the record is accessible under the RTKL. For example, in City of
Allentown v. Brenan, the city argued that an order denying a plaintiff supplemental
discovery in civil litigation taking place in the United States District Court for the
Eastern District of Pennsylvania precluded release of the same records as
responsive to a RTKL request made by the plaintiff’s attorney. 52 A.3d at 453.
This Court disagreed, holding in Brenan that records responsive to a RTKL request
are only exempted from disclosure by a judicial order or decree where the order
precluded or protected the records from disclosure. Id. at 456. Federal Rule of
Civil Procedure 26(c) governs the issuance of protective orders in federal courts,
providing, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
for denying access to a requested record that were
not specifically cited in the agency's initial denial of
the request for access?
The Commonwealth Court's decision is VACATED and the matter
is REMANDED for reconsideration in light of Levy v. Senate of
Pennsylvania, [619] Pa. [586], 65 A.3d 361 (2013); see Chester
[Community] Charter [School] v. Hardy, 38 A.3d 1079, 1087 (Pa.
Cmwlth. 2012) (“Some of the records sought by Requester may
reach beyond the governmental function performed by
Management, but Charter School failed to so specify them in its
written March 9, 2009, response.”), without prejudice to
Petitioner's ability to raise its other issues in a timely request for
discretionary review following the Commonwealth Court's
disposition on remand.
Id. at 119. The Court’s order did not disturb this Court’s holding that an automatic stay in a
bankruptcy proceeding halting a defamation suit had no bearing on the validity of the requester’s
RTKL request, reasoning that “[i]t may be that [r]equester is using the [RTKL] to conduct
discovery in the defamation action, which has been stayed. This result may seem
unfair….Unfortunately for Charter School, it matters not. A requester's motive under the Right–
to–Know Law has been made irrelevant by the legislature.” Hardy I, 38 A.3d at 1088.
27
action is pending….The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following: (A) forbidding the disclosure or
discovery;…(D) forbidding inquiry into certain matters,
or limiting the scope of disclosure or discovery to certain
matters…[and] (H) requiring that the parties
simultaneously file specified documents or information
in sealed envelopes, to be opened as the court directs.
Fed R. Civ. P. 26(c). Pennsylvania Rule of Civil Procedure 4012(a) governs the
issuance of protective orders in Pennsylvania and provides, in relevant part, that:
Upon motion by a party or by the person from whom
discovery or deposition is sought, and for good cause
shown, the court may make any order which justice
requires to protect a party or person from unreasonable
annoyance, embarrassment, oppression, burden or
expense, including one or more of the following: (1) that
the discovery or deposition shall be prohibited…(4) that
certain matters shall not be inquired into…[and] (7) that a
deposition shall be sealed and shall be opened only by
order of the court….
Pa. R.C.P. No. 4012(a); see also Pa. R.C.P No. 4011 (“Limitations of Scope of
Discovery. No discovery…shall be permitted which…(b) would cause
unreasonable annoyance, embarrassment, oppression, burden or expense to the
deponent or any person or party…”). In both Pennsylvania and in the federal
courts, protective orders are rare, disfavored, and require the party seeking a
protective order to shoulder a heavy burden, which includes a particularized, fact-
intensive showing of the necessity of the order. See, e.g., Crum v.
28
Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578 (Pa. Super. 2006);
Stenger v. Lehigh Valley Hospital (Appeal of the Morning Call), 554 A.2d 954 (Pa.
Super. 1989); see also Kamakana v. City and County of Honolulu, 447 F.3d 1172,
1180 (9th Cir. 2006); Baxter International, Inc. v. Abbot Laboratories, 297 F.3d
544, 545 (7th Cir. 2002); Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir.
1994). No such showing was made in Brenan or in the mandamus action where
the Trial Court issued its September 26, 2014 order denying Requester’s motion to
compel. The order at issue in Brenan demonstrates the rationale for why the rules
utilized for conducting discovery in litigation and resulting judicial orders
regarding discovery do not inherently preclude a party to litigation from utilizing
the RTKL; the order denying the plaintiff’s motion to compel supplemental
discovery was premised solely upon the untimeliness of the plaintiff’s request and
the plaintiff’s lack of supporting authority to treat the request as timely. 52 A.3d at
456; see also Fed R. Civ. P. 26. Untimeliness is but one of many reasons why a
judicial order denying a discovery request might be issued; chief among these
reasons is relevancy.
In Pennsylvania, the discrete principles of standing, ripeness,
mootness, the political question doctrine, and the proscription against issuing
advisory opinions are prudential, judicially created principles designed to winnow
out litigants who have no direct interest in a judicial matter and have not presented
to the court a true case and controversy for which judicial relief is appropriate.
Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014); Rendell v.
Pennsylvania State Ethics Commission, 983 A.2d 708, 717-718 (Pa. 2009); Fumo
v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009).17 Along with the discrete
17
For example, standing exists where the underlying controversy is real and concrete because the
party has been aggrieved and has a substantial, direct, and immediate interest in the outcome of
29
principles of ripeness, mootness, and the political question doctrine, standing and
the proscription against issuing advisory opinions help to ensure that the courts do
not stray beyond their authority and jurisdiction to usurp powers entrusted to the
legislative and executive branches of government. Rendell, 983 A.2d at 717-718;
In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003). Although these prudential
principles traditionally have the greatest impact at the outset of litigation, like
subject matter jurisdiction, these principles also inform and constrain cases and
controversies as litigation proceeds through the judicial process. In Pennsylvania,
preliminary objections provide parties with an opportunity at the outset of a civil
action to test the plaintiff’s complaint and narrow the legal issues before the court
to those for which judicial relief may be pursued. See Pa. R.C.P. No. 1028.18
the ligation; in contrast, where a party is not adversely affected by the matter he or she seeks to
challenge or merely shares the same interest of all citizens in procuring obedience to the law,
then the party lacks the necessary standing to pursue judicial relief. Rendell, 983 A.2d at 717-
718; William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975)
(plurality); Parents United for Better Schools, Inc. v. School District of Philadelphia, 646 A.2d
689, 690-692 (Pa. Cmwlth. 1994). Likewise, the proscription against issuing advisory opinions
or decisions in the abstract restrains the courts of this commonwealth from addressing claims
made, which at bottom seek merely an academic answer to a hypothetical question rather than
redress of an injury. Spahn v. Zoning Board of Adjustment, 877 A.2d 1132, 1151 (Pa. 2009);
Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659 (Pa. 2005). In the federal
system, these principles cluster around Article III of the United States Constitution, implicating
the constitutional restraints placed on the judicial branch and the limits of federal jurisdiction.
U.S. Const. art. III; Lexmark International, Inc. v. Static Control Components, Inc., __ U.S. __,
__, 134 S. Ct. 1377, 1386 (2014); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
18
While Pennsylvania does allow for pre-complaint discovery where a litigant has demonstrated
that the information sought is both material and necessary to the filing of a complaint in a
pending action and will not cause unreasonable annoyance, embarrassment, oppression, burden
or expense, discovery generally commences after the initial pleadings have established discrete
legal issues for the parties to litigate. Pa. R.C.P. Nos. 1017, 4001, 4003.8; see also McNeil v.
Jordan, 894 A.2d 1260, 1278 (Pa. 2006) (addressing pre-complaint discovery prior to the
adoption of Pa. R.C.P. No. 4003.8).
30
Pennsylvania has a long history of liberal discovery in order to further
the truth-determining process essential to our judicial system, prevent unfair
surprises should the matter proceed to trial, enhance an attorney’s ability to
strongly and effectively advocate for a client, and enable the efficient operation of
our judicial system. Pennsylvania Rule of Civil Procedure 4003.1 provides that a
“party may obtain discovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending action.”19 Although Pennsylvania
Rule of Civil Procedure 4003.3 protects the work product of an attorney, it also
permits the discovery of any matter discoverable under Rule 4003.1 even where it
was prepared in anticipation of litigation or trial by or for another party or by or for
that other party’s representative. Pa. R.C.P. Nos. 4003.1, 4003.3.
However, while the Pennsylvania Rules of Civil Procedure provide a
broad scope for a party seeking discovery, the focal point at all times is relevancy.
Discovery may not be used to search for information which is not reasonably
calculated to lead to the discovery of admissible evidence or which has no bearing
on the subject matter involved in the underlying action. Pa. R.C.P. No. 4003.1. In
each instance a request for discovery is evaluated within the context of a given
case presenting defined legal issues and, where there is a dispute, the court is
called upon to assess the legitimacy, necessity, and burden to ultimately determine
whether the specific request is relevant to the case at bar.
The question of whether a discovery request is relevant implicates the
prudential principles that initially framed the action before the court; the request
must relate to the actual case and controversy before the court for which a judicial
remedy is sought and may not serve as a basis to sift willy-nilly through
information held by an adverse party which would risk dragging the court beyond
19
Compare Federal Rule of Civil Procedure 26(b) regarding scope of discovery and limits.
31
its jurisdiction and authority. The discretion exercised by the court in granting or
denying a discovery request goes straight to the heart of the judicial function and
the prudential and ultimately constitutional constraints placed on judicial power. A
RTKL request stands in stark contrast to a discovery request; the power is not
judicial and is not constrained by relevancy. Instead, the power granted requesters
by the RTKL is inquisitorial and investigative. Under the RTKL, the requester is
empowered by the legislature—within explicit, enacted constraints—to go fishing,
an exercise that is strictly prohibited even under the broad scope of the discovery
rules and the liberal history of discovery in this Commonwealth.
In United States v. Morton Salt Co., 338 U.S. 632 (1950), two salt
producers challenged the authority and jurisdiction of the Federal Trade
Commission, claiming, inter alia, that the commission had invaded the province of
the judiciary. The Court discussed the difference between the judicial function and
the function of the commission, stating:
Federal judicial power itself extends only to adjudication
of cases and controversies and it is natural that its
investigative powers should be jealously confined to
these ends. The judicial subpoena power not only is
subject to specific constitutional limitations, which also
apply to administrative orders, such as those against self-
incrimination, unreasonable search and seizure, and due
process of law, but also is subject to those limitations
inherent in the body that issues them because of the
provisions of the Judiciary Article of the Constitution.
Id. at 642. By contrast, the Court described the power underlying the function of
the commission as quite distinct from judicial power:
32
The only power that is involved here is the power to get
information from those who best can give it and who are
most interested in not doing so. Because judicial power
is reluctant if not unable to summon evidence until it is
shown to be relevant to issues in litigation, it does not
follow that an administrative agency charged with seeing
that the laws are enforced may not have and exercise
powers of original inquiry. It has a power of inquisition,
if one chooses to call it that, which is not derived from
the judicial function. It is more analogous to the Grand
Jury, which does not depend on a case or controversy for
power to get evidence but can investigate merely on
suspicion that the law is being violated, or even just
because it wants assurance that it is not.
Id. at 643. The RTKL imbues requesters with an even greater power to request
information than the inquisitorial and investigative power bestowed upon the
commission, which the Court analogized to a grand jury. Like a grand jury or the
commission, a RTKL request does not depend on a case or controversy; however,
unlike a grand jury or the commission, a RTKL requester is not constrained by a
need for suspicion that the law is being violated or for assurance that it is not, nor
is a RTKL requester subject to the same constitutional restraints as a government
actor. Instead, a requester has a legislatively granted and judicially enforceable
right to secure information from the hands of government.
The rights afforded a requester under the RTKL are constrained by the
presumption and exemptions contained in the law itself. See Section 305 and 708
of the RTKL, 65 P.S. § 67.305, 67.708. While the RTKL does countenance
limited arguments concerning the burden of a request, issues such as annoyance
and embarrassment, which may mitigate in favor of limiting the scope of a
discovery request, have no weight in the RTKL context. Department of
Environmental Protection v. Legere/Times-Tribune, 50 A.3d 260, 266 (Pa.
33
Cmwlth. 2012); Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa. Cmwlth.
2011). Likewise, the policy behind the exemptions contained in the RTKL may
serve a party’s argument against disclosure in litigation; however, the fact that
information may not be publicly accessible under the RTKL does not answer the
question of whether the information is relevant to a matter before the court in
litigation and, therefore, subject to discovery by court order. Discovery conducted
in a court of law and a request made under the RTKL are wholly separate
processes and it is only in rare circumstances, such as the issuance of a protective
order, that a judicial order or decree governing discovery in litigation will act to
prevent disclosure of public information responsive to a RTKL request.
OOR and the Trial Court concluded that the City and the District
Attorney failed to meet their burden to demonstrate the information responsive to
Item No. 6 of Request I was protected by the attorney-work product privilege or
exempt from disclosure by a judicial order or decree issued in pending litigation
and, beyond their citation to Schenck, neither the City nor the District Attorney
have offered any grounds upon which this Court should disturb the decisions
below. Accordingly, we hold that Schenck is inopposite and we affirm the Trial
Court’s order that the documents responsive to Item No. 6 in Request I, exclusive
of the redactions authorized in the six documents identified in OOR’s decision, be
disclosed to Requester.
Request II Item Nos. 1 and 2
Penalty
Next, we address the $500 penalty imposed by the Trial Court in its
December 2, 2015 order because, although it came in the proceedings related to
Request II, it is inextricably linked with the argument made by the District
Attorney in both proceedings below that a judicial order denying access to
34
documents sought through the discovery process was determinative of whether the
same documents were publicly accessible under the RTKL. Before this Court, the
District Attorney contends that the Trial Court erred by not making the requisite
evidentiary findings to support a conclusion that it had acted in bad faith.
The RTKL vests the trial court with jurisdiction to assess a local
agency’s compliance with the RTKL and grants the trial court authority to impose
costs, attorney fees and civil penalties. See Section 1304 and 1305 of the RTKL,
65 P.S. §§ 67.1304-1305. Before imposing costs, fees or penalties, the trial court
must make factual findings in support of its conclusion that the local agency has
acted in bad faith. Id.; see also Bowling II, 75 A.3d at 458. Where the award is for
attorney fees and costs, the trial court must make findings that either the local
agency acted with a willful or wanton disregard, that the local agency’s actions
were not based on a reasonable interpretation of law, or that the local agency’s
appeal was frivolous. Section 1304 of the RTKL, 65 P.S. § 67.1304. Where the
trial court imposes a civil penalty, rather than attorney fees and costs, the trial court
must make findings that the local agency denied access to a public record in bad
faith. Section 1305(a) of the RTKL, 65 P.S. § 67.1305(a).20
Under the RTKL, the provisions for costs, fees and penalties found in
Sections 1304 and 1305 are contained in Chapter 13, which establishes the process
for judicial review of OOR’s determination; OOR does not have authority to
impose costs, fees or penalties. Sections 1301-1310 of the RTKL, 65 P.S. §§
67.1301-67.1310. Although the policy behind Sections 1304 and 1305 of the
20
The statutory provisions in the RTKL do not prohibit a court from imposing penalties and
costs in accordance with applicable rules of court or imposing sanctions following an
adjudication of contempt. See Section 1304(c) of the RTKL, 65 P.S. § 67.1304(c); West Pittston
Borough v. LIW Investments, Inc., 119 A.3d 415, 421-422 (Pa. Cmwlth. 2015); In re Contempt of
Cullen, 849 A.2d 1207, 1210-1211 (Pa. Super. 2004).
35
RTKL is similar, the two sections serve different purposes. Section 1304 of the
RTKL seeks to remedy the damage to the requester where an agency has denied
access to records in bad faith and to the agency where a requester has launched a
frivolous challenge to a denial of access by restoring the requester or the agency to
the place where each would have been prior to petitioning the court for review. 65
P.S. § 67.1304.
The text and purpose of Section 1305 of the RTKL are different.
Section 1305(a) of the RTKL provides that, “[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). An example of bad faith is a local agency’s failure to
comply with the mandate of Section 901 of the RTKL, which requires that a local
agency make a good faith search for information responsive to a request and
determination of whether that information is public. 65 P.S. § 67.901;
Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1291-1292 (Pa.
Cmwlth. 2014). Section 1305(b) of the RTKL provides that “[a]n agency or public
official who does not promptly comply with a court order under this act is subject
to a civil penalty of not more than $500 per day until the public records are
provided.” 65 P.S. § 67.1305(b).
Unlike Section 1304, the text of Section 1305 of the RTKL is directed
wholly to the agency charged with a mandatory duty under the RTKL to provide
requesters access to public records within the agency’s custody and control.
Section 1305 of the RTKL places the requester, through the aegis of the court, in
the role of the regulator and the agency in the role of a regulated entity subject to
civil penalties for violation of a statute. Compare Gibbons v. Bureau of
Professional and Occupational Affairs, 921 A.2d 551 (Pa. Cmwlth. 2007)
(assessing penalty for failure to supervise in violation of Section 604(a)(16) of the
36
Real Estate Licensing and Registration Act, Act of February 19, 1980, P.L. 15, as
amended, 63 P.S, § 455.604(a)(16)); Commonwealth ex rel. Corbett v. Manson,
903 A.2d 69 (Pa. Cmwlth. 2006) (assessing penalties for deceptive conduct in
violation of the Unfair Trade Practices and Consumer Protection Law, Act of
December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-9.3);
Westinghouse Electric Corp. v. Pennsylvania Department of Environmental
Protection, 745 A.3d 1277 (Pa. Cmwlth. 2000) (assessing penalties for violation of
the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§
691.1-691.1001). Unlike Section 1304, the purpose of Section 1305 of the RTKL
is not to remedy harm to a party but to penalize conduct of a local agency and to
provide a deterrent in the form of a monetary penalty in order to prevent acts taken
in bad faith in the future. The purpose of Section 1305 of the RTKL is akin to the
purpose of the penalty provision of the Sunshine Act, which makes it a summary
offense for “[a]ny member of any agency who participates in a meeting with the
intent and purpose by that member of violating this chapter,” and provides that
upon conviction, the member shall pay the costs of prosecution plus a fine within a
defined range, the exact amount of which to be determined by the sentencing
authority. 65 Pa. C.S. § 714. However, unlike the penalty provision in the
Sunshine Act, the focus in Section 1305 of the RTKL is not on the mental state of
the actor but the actions taken by the agency. Compare Section 1304(a)(1) of the
RTKL, 65 P.S. § 67.1304(a)(1).
In the instant matter, the Trial Court concluded that costs and attorney
fees under Section 1304 of the RTKL were not appropriate; however, the Trial
Court concluded that under Section 1305(a) of the RTKL the actions taken by the
District Attorney in denying Requester access to a public record amounted to bad
faith and that a $500 penalty payable to the court was appropriate. Contrary to the
37
District Attorney’s argument, the Trial Court made a series of findings regarding
the District Attorney’s denial of access to Item Nos. 1 and 2 of Request II based on
the record. Although the record created prior to a hearing on a motion made
pursuant to Sections 1304 and 1305 of the RTKL may not always provide
sufficient evidence to support a conclusion that a local agency acted in bad faith as
a matter of law and it may be necessary for the trial court to take additional
evidence, such was not the situation here. Instead, as noted by the Trial Court,
from the initial response to Item Nos. 1 and 2 of Request II, to the petition for
review filed with the Trial Court, the record is replete with evidence of the District
Attorney’s bad faith in denying Requester access to public records. (Nos.
2627/2641 C.D. 2015: 1925(a) Op. at 10; S.R. December 1, 2015 H.T. at 41-44.)
The initial response from the District Attorney denying Requester
access to Item Nos. 1 and 2 of Request II failed to conform to the duties imposed
by the RTKL in several respects. First, the District Attorney based its denial on the
identity of the requester and the presumed intended use of the records in violation
of Section 302 of the RTKL, 65 P.S. § 67.302. (Nos. 2627/2641 C.D. 2015:
1925(a) Op. at 9; S.R. December 1, 2015 H.T. at 10-11); see also Section 703 of
the RTKL, 65 P.S. § 67.703. Second, the District Attorney failed to cite any legal
authority in support of its reasons for denial in violation of Section 903 of the
RTKL, 65 P.S. § 67.903. (Nos. 2627/2641 C.D. 2015: 1925(a) Op. at 9; S.R.
December 1, 2015 H.T. at 19-20; see also C.R. November 10, 2014 District
Attorney Response to Records Request, R.R. at 153a.) Third, the District Attorney
did not make a good faith search for the requested records in violation of Section
901 of the RTKL, 65 P.S. § 67.901. (Nos. 2627/2641 C.D. 2015: 1925(a) Op. at 9;
S.R. December 1, 2015 H.T. at 28, 32-33, 39, 42-43; see also C.R. November 10,
2014 District Attorney Response to Records Request, R.R. at 153a.) Finally, we
38
agree with the Trial Court that the District Attorney’s representation of binding
precedent and the state of the law in this Commonwealth throughout these
proceedings was deficient at best.21 (Nos. 2627/2641 C.D. 2015: 1925(a) Op. at
10; S.R. December 1, 2015 H.T. at 26, 33-34.). Accordingly, we conclude that the
Trial Court made the requisite factual findings, supported by substantial record
evidence, to conclude as a matter of law that the District Attorney acted in bad
faith by denying Requester access to Item Nos. 1 and 2 of Request II and that the
Trial Court did not err in imposing a $500 penalty pursuant to Section 1305 of the
RTKL.
Request II Item Nos. 7 and 8
Sufficient Specificity
Next, the District Attorney argues that Item Nos. 7 and 8 of Request II
were insufficiently specific and that it should not be required to search for and
produce documents in response to such an overly broad request. The District
Attorney contends that Item Nos. 7 and 8 are insufficiently specific because of the
timeframes given, the request for multiple types of documents, including emails
without identified senders and recipients, and an opaque subject matter without the
provision of terms to narrow the District Attorney’s search parameters. We
disagree.
Where a requester seeks to gain access to information under the
RTKL, Section 703 of the RTKL puts the initial burden on the requester to provide
a written request that “should identify or describe the records sought with
21
As the Trial Court’s generosity may have gone unnoticed, we remind counsel of Rule 3.3 of
the Rules of Professional Conduct; while counsel certainly has a duty to pursue a favorable
litigation strategy and make good faith arguments for an extension, modification or reversal of
existing law, the line between zealous advocacy and failure to adhere to counsel’s duty of candor
towards the tribunal is neither fine nor grey. Pa. R.P.C. 3.3; see also Pa. R.P.C. 3.1; Robinson v.
City of Philadelphia, 666 A.2d 1141, 1143 (Pa. Cmwlth. 1995).
39
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.” 65 P.S. § 67.703; Mollick 32 A.3d at 871. In determining
whether a request is sufficiently specific, an agency should rely on the common
meaning of words and phrases, be mindful of the remedial purpose of the RTKL,
and construe the specificity of the request in the context of the request, rather than
envisioning everything the request might conceivably encompass. Pennsylvania
State Police v. Office of Open Records, 995 A.2d 515, 517 (Pa. Cmwlth. 2010).
The fact that a request is burdensome will not, in and of itself, deem the request to
be overbroad. Department of Environmental Protection v. Legere, 50 A.3d 260,
265 (Pa. Cmwlth. 2012). However, an open-ended request that fails to give a local
agency guidance in its search for the information sought may be so burdensome
that the request will be found overbroad under the RTKL. Commonwealth v.
Engelkemier, 148 A.3d 522, 530 (Pa. Cmwlth. 2016); Montgomery County v.
Iverson, 50 A.3d 281, 283 (Pa. Cmwlth. 2012) (en banc).
In Pennsylvania Department of Education v. Pittsburgh Post-Gazette,
119 A.3d 1121 (Pa. Cmwlth. 2015), this Court set forth a three-part balancing test
to evaluate whether a request was sufficiently specific, examining whether the
request identified: (1) the subject matter of the request; (2) the scope of the
documents sought; and (3) the timeframe for the records sought. Id. at 1125; see
also Carey v. Department of Corrections, 61 A.3d 367, 372 (Pa. Cmwlth. 2013).
While this test is a flexible one, the requirement that a requester identify the
subject matter of a request necessitates that a requester “identify the transaction or
activity of the agency for which the record is sought.” Pittsburgh Post-Gazette,
119 A.3d at 1125; see also Section 102 of the RTKL, 65 P.S. § 67.102; Mollick, 32
A.3d at 871. In addition, the requirement that a requester identify the scope of the
40
documents sought necessitates that a requester “identify a discrete group of
documents either by type…or recipient.” Pittsburgh Post-Gazette, 119 A.3d at
1125 (citing Carey, 61 A.3d at 372). Finally, although the timeframe element of
the “sufficiently specific” test is the most fluid when evaluating a requester’s
request, the request should identify “a finite period of time for which records are
sought.” Id. at 1126; see also Department of Corrections v. St. Hilaire, 128 A.3d
859, 864 (Pa. Cmwlth. 2015); compare Legere, 50 A.3d at 265 with Mollick, 32
A.3d at 871.
Item No. 7 of Request II asks for:
7. All e-mails, memos and letters exchanged by the
[District Attorney] and the [City’s] Office of Innovation
and Technology between July 1, 2013 and October 1,
2014 pertaining to searching for e-mails on the [City’s] e-
mail servers and/or backup copies of the [City’s] e-mail
servers;
(Nos. 2627/2641 C.D. 2015: C.R. Records Request II.). OOR concluded that Item
No. 7 of Request II was sufficiently specific because it “clearly specifies the types
of records (e-mails, memoranda and letters); the subject matter (searching for e-
mails on the [City’s] e-mail servers and/or backup copies of the [City’s] e-mail
servers); and a timeframe (July 1, 2013 and October 1, 2014). With respect to the
senders and recipients, Item [No.] 7 seeks records between all employees of the
[District Attorney] and the [City’s] Office of Innovation and Technology.” (Nos.
2627/2641 C.D. 2015: C.R. OOR Decision at 12, R.R. at 235a.) The Trial Court
agreed that Item No. 7 of Request II was sufficiently specific, holding that the
“universe of documents exchanged between the District Attorney and the City’s
Office of Innovation and Technology over 15 months relating to the topic of
41
searching for emails or backup copies is specific enough for the District Attorney
to respond in accordance with the RTKL.” (Nos. 2627/2641 C.D. 2015: Trial
Court Op. at 7.)
Item No. 8 of Request II asks for:
8. All e-mails, letters and memos pertaining to the
[District Attorney’s] transition from Lotus Notes e-mail
platform to the Microsoft Exchange e-mail platform
between January 1, 2013 and December 31, 2013;
(Nos. 2627/2641 C.D. 2015: C.R. Records Request II.). OOR concluded that Item
No. 8 of Request II was sufficiently specific because it “provides a very clear
subject matter (the [District Attorney’s] transition from Lotus Notes to Microsoft
Exchange); a timeframe (January 1, 2013 through December 31, 2013); and
identifies the types of records sought (e-mails, letters and memos).” (Nos.
2627/2641 C.D. 2015: C.R. OOR Decision at 12, R.R. at 235a.) Moreover, in
regards to both Item Nos. 7 and 8 of Request II, OOR concluded that “[b]ecause
Items 7 and 8 clearly identify the types of records sought, the subject matter, and
timeframes, it is not necessary for the Requester to name senders and recipients.”
(Id.) The Trial Court agreed, holding that Item No. 8 of Request II was sufficiently
specific. (Nos. 2627/2641 C.D. 2015: Trial Court Op. at 7-8.)
The District Attorney contends that OOR’s conclusions and the Trial
Court’s holdings were in error. The District Attorney argues that Item Nos. 7 and
8 of Request II do not satisfy the subject matter prong of the sufficiently specific
test because neither Item No. 7 nor Item No. 8 provide clear search terms for the
District Attorney to use in its search for responsive records. In support of its
argument, the District Attorney relies upon Iverson, where this Court held that a
42
request for all emails in the possession of Montgomery County that traveled to and
from identified domain names and included one of fourteen keyword terms was not
sufficiently specific. 50 A.3d at 282. Our holding in Iverson was based on the
conclusion that:
The [r]equest provides no timeframe with regard to the
emails it seeks. It does not identify specific individuals,
email addresses, or even departments, but requests any
applicable emails sent from the County’s domain to four
other domains. There is no context within which the
search may be narrowed. It is true that the Request limits
the emails sought to those that have one of fourteen terms
in the subject line; however, some of these search terms,
such as “Trail,” are incredibly broad.
Id. at 284. Iverson did not hold that for a request to be sufficiently specific a
requester was required to identify specific search terms; in fact, as the concurring
opinion by then President Judge Pellegrini noted, Iverson represented the first
instance where this Court was called upon to evaluate the specificity of a RTKL
request based upon a keyword search. Id. at 285 (concurring); see also
Commonwealth v. Engelkemier, 148 A.3d 522 (Pa. Cmwlth. 2016).22 Rather,
22
In Engelkemier, we discussed the difficulties that may arise when a requester submits a
keyword list as opposed to a specific subject matter:
A keyword list is not necessarily a substitute for a properly-defined
subject matter(s)—i.e., a particular transaction or activity of an
agency. If terms on a list are too general or too broad, a requester
runs the risk that the request will be rejected for lack of specificity,
if not by the agency then by the OOR or this Court. A clearly-
defined subject matter, such as “liquor privatization,” by contrast,
has a better chance of passing the specificity test. It is true that a
requester’s intent—i.e., the purpose or motivation underlying a
request—is not a relevant consideration under the RTKL. As we
observed in Iverson, however, this statutory shield does not
43
although Iverson was decided prior to this Court’s clear recitation of the
sufficiently specific test in Pittsburgh-Post Gazette, the reasoning in Iverson
highlights the flexible, cases by case, contextual application of the test. The
request in Iverson not only failed each prong of the sufficiently specific test, but
the use of search terms alone deprived the open records officer charged with
responding to the request of any context within which to search for responsive
documents. In Mollick, this Court reached a similar conclusion. The request in
Mollick sought: “(1) all emails between the Supervisors regarding any Township
business and/or activities for the past one and five years; and (2) all emails
between the Supervisors and the Township employees regarding any Township
business and/or activities for the past one and five years.” 32 A.3d at 871. We
concluded that the request was overly broad because it failed to identify specific
business or activities that the request sought information related to and would
burden the agency with examining all its emails for an extended period of time
with no parameters to guide its search; therefore, we held that the request in
Mollick was insufficiently specific under Section 703 of the RTKL. Id. at 871-872.
By contrast, we held in Legere that a request seeking all determination
letters and orders issued by the Department of Environmental Protection pursuant
to identified statutory provisions from January 1, 2008 until the date of the request
was sufficiently specific. 50 A.3d at 262, 265. Our holding was based on the fact
that the request in Legere sought a “clearly defined universe of documents” that
did not require “files to be reviewed and judgments to be made as to the relation of
the documents to the specific request,” unlike the request in Mollick. Legere, 50
absolve a requester of his initial obligation to “inform[ ] an agency
with sufficient specificity of the records requested.
Engelkemier, 148 A.3d at 531 (internal citations & n.8 omitted).
44
A.3d at 265. This Court also rejected the argument in Legere that the burden
imposed by the request rendered the request insufficiently specific, clearly holding
that a burden stemming from an agency’s organization and maintenance of its
information, as opposed to a request seeking a vast array of documents without
sufficiently specific guidance to the agency about what was sought, will not be
weighed against the requester and permit an agency to deny access to information
pursuant to the RTKL. Id. Likewise, we held in St. Hilaire that a request which
sought “all records that document inmate injuries/deaths” was not insufficiently
specific, even though it sought “all records,” because the request identified a
clearly defined set of documents (records that document inmate injuries), a specific
subject matter (inmate injuries), and a specific time period (January 2009 through
December 2014). Id. at 864. Furthermore, in St. Hilaire, we rejected the argument
that the request was overbroad and burdensome because it would require the
Department of Corrections to review every medical incident/injury report to
determine whether the report identifies an inmate injury or not, reiterating that
where a request is sufficiently specific an agency cannot escape its obligations
under the RTKL by claiming that the way the agency maintains or organizes its
information, standing alone, renders a request overbroad or burdensome. Id. at
865; see also Carey, 61 A.3d at 372 (“a burden on an agency attendant to gathering
responsive records does not pertain to sufficiency of a request or render it non-
specific.”).
As in Legere and St. Hilaire, and unlike Iverson and Mollick, the
request here seeks a clearly defined universe of documents. Moreover, any
contention that the manner in which the District Attorney maintains information
should excuse compliance with the RTKL, rather than an inability to respond to a
request because the request seeks an undefined universe of documents, is without
45
merit. The District Attorney argues that Item Nos. 7 and 8 would require its Open
Records Officer to visit each individual employee of the District Attorney and
inquire whether the employees have responsive documents. In support of this
argument, the District Attorney relies upon Department of Labor and Industry v.
Earley, 126 A.3d 355 (Pa. Cmwlth. 2015). However, its reliance is misplaced. In
Earley, the issue before this Court was whether the Department of Labor and
Industry had met its burden of demonstrating that the records sought by the
requester did not exist. Id. at 357. We held that the Department of Labor and
Industry had failed to meet its burden. Id. Instead, we concluded that the
Department of Labor and Industry had established by affidavits that the individuals
named in the request did not have the records in their possession in the form of
email messages received or sent and that, having so established, the Department
was not obligated “to see if any of the other 7,000 employees have an email from
each of those individuals when there is no evidence that an email had been sent to
a particular party outside those identified in the request.” Id. at 357. However, we
also concluded that the Department of Labor and Industry did have an obligation to
search its servers for any deleted emails pertaining to the request and, therefore,
absent an affidavit or similar evidence attesting to the absence of any responsive
information on the Department’s servers, it had not met its burden to demonstrate
that records responsive to the request did not exist. Id. at 358.
The District Attorney’s argument in the instant matter is
distinguishable from the situation in Earley; rather than arguing that it searched for
information responsive to Item Nos. 7 and 8 of Request II and responsive records
do not exist, the District Attorney is arguing that it does not have to determine
whether responsive records exist because the request is insufficiently specific. In
addition, the Department of Labor and Industry’s duty to search for responsive
46
records in Earley was constrained by the request. The request in Earley was
limited to emails sent or received by identified individuals and the record was
devoid of evidence that emails responsive to the request had been exchanged with
other employees. In the instant matter, Item Nos. 7 and 8 defined the specific
universe of documents sought by type rather than individual senders and recipients.
Neither Pittsburgh-Post Gazette nor the RTKL require that a request including
emails as the type of documents sought by the request identify the sender and
recipient, for Earley aside, such information may be exactly what the requester is
seeking to discover. A requester must sufficiently define the scope of the request
to enable the local agency to ascertain which records are being sought; in
Pittsburgh-Post Gazette we stated that identifying the type of document or the
recipient are two ways a requester may sufficiently define the scope, although
these methods are surely not all inclusive. In the instant matter, the Requester
defined the scope of Item Nos. 7 and 8 by the type of documents sought and, by
doing so, satisfied the scope element of the sufficiently specific test.
Finally, the District Attorney baldly argues that the 15-month
timeframe identified in Item No. 7 of Request II and the 12-month timeframe
identified in Item No. 8 of Request II are overly broad. There is no merit to this
argument. The timeframe is finite and the District Attorney has put forth neither
argument nor evidence to establish that the timeframe identified somehow renders
Item Nos. 7 and 8 of Request II insufficiently specific. See Askew v. Office of
Governor, 65 A.3d 989, 992 (Pa. Cmwlth. 2013) (discussing instances where the
timeframe either identified or not identified in a request impacted the issue of
whether the request was sufficiently specific).
47
Accordingly, we conclude that Item Nos. 7 and 8 of Request II were
sufficiently specific and that the Trial Court did nor err in affirming OOR on this
basis.
III. Conclusion
Discerning no error, we affirm the order issued by the Trial Court on
February 17, 2016, appealed by the City and the District Attorney, consolidated by
this Court and docketed at Nos. 435 and 473 C.D. 2016, and we affirm the orders
issued by the Trial Court on October 23, 2015, and on December 2, 2015, appealed
by the District Attorney and consolidated and docketed by this Court at Nos. 2627
and 2641 C.D. 2015.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
48
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Appellant :
:
v. :
:
Ryan Bagwell : CASES CONSOLIDATED
: Nos. 435, 473 C.D. 2016
City of Philadelphia :
:
v. :
:
Ryan Bagwell :
:
Appeal of: Office of District Attorney :
of Philadelphia :
ORDER
AND NOW, this 16th day of February, 2017, the February 17, 2016
order of the Court of Common Pleas of Philadelphia County in the above-
captioned matters is, hereby, AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Office of the District Attorney of :
Philadelphia , :
Appellant :
:
v. :
:
Ryan Bagwell : CASES CONSOLIDATED
: Nos. 2627, 2641 C.D. 2015
Office of the District Attorney of :
Philadelphia , :
Appellant :
:
v. :
:
Ryan Bagwell :
ORDER
AND NOW, this 16th day of February, 2017, the October 23, 2015 and
December 2, 2015 orders of the Court of Common Pleas of Philadelphia County in
the above-captioned matter are, hereby, AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge