McClintock v. Coatesville Area School District , 74 A.3d 378 ( 2013 )

OPINION BY

Judge COHN JUBELIRER.

Robert T. McClintock (Requester) filed four Right-to-Know Law¹ (RTKL) Requests for records from the Coatesville Area School District (District). The District did not respond to his Requests within five business days; therefore, under the RTKL,² his Requests were “deemed denied.” Receiving no response, Requester first appealed to the Office of Open Records (OOR), which partially granted his Requests, and then to the Court of Common Pleas of Chester County (trial court), which affirmed the OOR’s Final Determination, and now to this Court. Requester argues that the District’s failure to respond at all to his initial RTKL Requests should result in the waiver of the District’s right to raise any exceptions set forth in Section 708(b) of the RTKL³ as defenses to his Requests on appeal. However, based upon our Supreme Court’s recent decision in Levy v. Senate of Pennsylvania, — Pa. -, 65 A.3d 361 (2013), we conclude that a deemed denial does not result in a deemed waiver. Accordingly, we affirm.

Requester submitted four Requests for records to the District on March 10, 2011, seeking documents relating to Graystone Academy Charter School (Graystone).⁴ The District did not respond to the Requests within five business days as required by Section 901 of the RTKL; Requester therefore filed four separate appeals with the OOR dated March 18, 2011. (Appeals to OOR, R.R. at 23a-31a.) The OOR consolidated the appeals and invited the parties to submit information in support of their respective positions regarding the Requests. (OOR Letter to Parties, April 7, 2011, at i-2.)

Responding to the appeal, the District: (1) agreed to provide some of the requested documents; (2) stated that some of the requested documents did not exist; and (3) refused to produce the remaining requested documents based upon the noncriminal investigation exception of the RTKL,⁵ the predecisional deliberations exception of the RTKL,⁶ and attorney-client privilege.⁷ (Final Determination at 2; District Letter to OOR, March 28, 2011, C.R. at Item 13; District’s Brief in Opposition to OOR Appeal at 2, C.R. at Item 16.) The District provided the affidavit of Dr. Angelo Ro-maniello, Jr., Assistant Superintendent and Administrative Liaison to the Board, in support of its refusal to provide Requester access to the requested documents. (Final Determination at 3; District’s Brief in Opposition to OOR Appeal, Ex. A, C.R. at Item 16.)

Requester filed a reply with the OOR. (Final Determination at 4; Requester’s Reply Brief, C.R. at Item 17.) Among other arguments, Requester contended that the District had waived all exceptions from disclosure as provided for in Section 708(b) of the RTKL as a result of the deemed denial of the Requests, or, in the alternative, that the District had not proven that the records were not subject to disclosure under the RTKL. (Final Determination at 4-5; Requester’s Reply Brief, C.R. at Item 17.)

Upon review, the OOR first held that the District’s failure to respond to the Requests did not result in the waiver of the District’s right to assert a reason for denying the Requests on appeal. (Final Determination at 7.) Based upon this Court’s decision in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa.Cmwlth.2010), the OOR rejected Requester’s contention that permitting the District, after it failed to timely respond to the Requests, to assert reasons for denying the Requests on appeal to the OOR “‘does not allow for an expeditious resolution of the dispute.’” (Final Determination at 5 (quoting Signature Information, 995 A.2d at 513).) Recognizing that, pursuant to Signature Information, an agency may not alter its reason for a denial between the initial denial and the appeal, the OOR determined that because the denial in this matter was a “deemed” denial, the District did not alter its grounds for denial, but instead “set forth grounds during the appeal that the Requester had the opportunity to address.” (Final Determination at 7.)

The OOR then evaluated the merits of the denial of the Requests and ordered the disclosure of some, but not all, of the records to which the District had denied access. (Final Determination at 8-9.) Requester appealed the OOR’s Final Determination to the trial court, again contending that all records sought had to be provided because the District waived all exceptions from disclosure provided by the RTKL when its failure to timely respond to the Requests resulted in an automatic deemed denial. The trial court distinguished this Court’s decision in Signature Information and rejected Requester’s contention. The trial court further held that the OOR properly denied the Requests for the records that remained in dispute. This appeal followed.⁸

On appeal, Requester does not challenge the OOR’s Final Determination on the merits of the District’s denials. The only issue before us is whether a failure to respond to a RTKL request, which is considered a “deemed denial” under Section 901, results in a deemed waiver by an agency of all the exceptions set forth in Section 708(b) as defenses on appeal to the OOR.⁹ Section 901 provides that the time for an agency to respond to a RTKL request “shall not exceed five business days from the date the written request is received” and if the agency fails to respond within five business days, “the written request for access shall be deemed denied.” 65 P.S. § 67.901.

In Signature Information, the requester submitted a request to the township seeking real estate tax information. The township denied the request, giving as its reason that the information was available on the county’s website. The requester appealed the denial to the OOR, which permitted the parties to submit additional information. At that point the township asserted, for the first time, that it denied the request pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, and alleged that it was not required to create a record that did not exist. The OOR ordered the township to disclose the records and the township appealed to the trial court, which held, inter alia, that the township was not limited to its initial reason for denying the RTKL request.

On appeal, we reversed the decision of the trial court, holding that the RTKL does not permit an agency that has given a specific reason for a denial to assert a different reason on appeal. Signature Information, 995 A.2d at 514. We pointed out that an agency must include specific reasons for denying a RTKL request pursuant to Section 903(2) of the RTKL,¹⁰ and that an appeal of such denial to the OOR must address any grounds set forth by the agency for the denial pursuant to Section 1101(a)(1) of the RTKL.¹¹ Id. at 513. We reasoned that “[if] an agency could alter its position after the agency stated it and the requester addressed it in an appeal, then the requirements in [Sjections 903(2) and 1101(a)(1) of the [RTKL] would become a meaningless exercise.” Id. at 514. We further reasoned that “permitting an agency to set forth additional reasons for a denial at the appeal level does not allow for an expeditious resolution of the dispute” as required by Section 1102(b)(3) of the RTKL.¹²

After the current matter was appealed to this Court, our Supreme Court issued its decision in Levy.¹³ There, a journalist sought, through a RTKL request, “documents relating to the legal representation of Senate Democratic Caucus employees.” Levy, — Pa. at -, 65 A.3d at 363. The Senate open records officer provided the documents with portions redacted based upon attorney-client privilege. Id. at -, 65 A.3d at 364. On appeal to the Senate Appeals Officer, the Senate, for the first time, asserted additional alternate reasons for non-disclosure of the redacted portions. Id. at -, 65 A.3d at 365. The Senate Appeals Officer determined that portions of the redacted documents were protected by attorney-client privilege but “that the Senate failed to demonstrate the necessary factual predicate for assertion of’ the alternate reasons for non-disclosure. Id.

Upon review by this Court, we held, based upon Signature Information, that the Senate had waived all its alternate reasons for redacting documents relating to Senate members’ hiring outside attorneys by failing to raise them in its initial written denial of Levy’s RTKL request. Id. at -, 65 A.3d at 867. The Supreme Court reversed our holding and held that this Court’s “per se waiver rule set forth in Signature Information and its progeny is unnecessarily restrictive.” Id. at -, 65 A.3d at 383. The Levy decision specifically abrogated our holding in Signature Information that “an agency waives any reasons for non-disclosure not raised in its initial ... written response” to a RTKL request. Id.

Although Requester recognizes the Supreme Court’s decision in Levy, he urges this Court to revive the Signature Information waiver rule for this case because, here, the District ignored the RTKL Requests and provided no reason at all for its failure to provide the requested documents. Requester argues that where an open records officer acknowledges receipt of a request, yet ignores the request and provides no response, such blatant disregard for the right of public access to public records must be sanctioned by applying the Signature Information rule. Requester also argues that by permitting the District to assert the exceptions set forth in Section 708(b) of the RTKL on appeal of a deemed denial violates the RTKL’s requirements that procedural matters be resolved fairly and expeditiously, and that the open records officer make a good faith effort in responding to a RTKL request.

In reaching its holding in Levy, the Supreme Court thoughtfully considered the concerns that Requester now raises before this Court. Finding the statutory language ambiguous, the Supreme Court weighed the “overriding purpose of the RTKL” of “ensuring expanded and expedited transparency in our government” and the “legislative intent to shield numerous categories and subcategories of documents from disclosure in order to protect, inter alia, the Commonwealth’s security interests and individuals’ privacy rights.” Levy, - at -, 65 A.3d at 382. The Supreme Court reasoned that “adoption of the Signature Information [r]ule undermines the specific legislative intent to shield these documents from disclosure, merely as a consequence of an open records officer’s failure to list a legitimate reason for non[-]disclosure on the agency’s initial written denial.” Id. Recognizing that the deemed denial provisions, inter alia, set forth in Sections 901, 902¹⁴ and 1101(b)¹⁵ of the RTKL “demonstrate an intent for an expedited determination of RTKL requests,” id. at -, 65 A.3d at 381, the Supreme Court explained that

given the specified statutory time frame for each stage of the RTKL process, there is little concern that the addition of new reasons for non-disclosure at the appeals officer stage will effect the speed of any ultimate decision as the appeals officer’s decision must be issued within thirty days regardless of the number of asserted reasons for denial.

Id. at -, 65 A.3d at 382. The Supreme Court also expressed due process concerns related to the Signature Information waiver rule with respect to interested third parties because they “may be limited in their ability to raise defenses to disclosure separate from the reasons originally raised by the agency, even though the [interested parties] were provided no notice of the original request.” Id. The Supreme Court concluded that, given the efficiency of the RTKL process, “there is no guarantee that interested individuals will be heard or their objections to disclosure addressed.” Id.

The reasoning in Levy applies with as much force where an open records officer fails to list a reason for non-disclosure on the agency’s initial written denial as when it fails to provide a written denial at all for non-disclosure. The specific legislative intent to shield certain documents or information from disclosure and the due process concerns are the same in both situations. The General Assembly specified that failure to respond to a RTKL request would result in a deemed denial of the request; it did not also sanction that failure with the waiver of otherwise legitimate reasons for non-disclosure.¹⁶

Accordingly, pursuant to Levy, we hold that a deemed denial of a RTKL request, as provided for in Section 901 of the RTKL, does not result in a deemed waiver of an agency’s right to raise the exceptions set forth in Section 708(b) of the RTKL, 65 P.S. § 67.708(b), as defenses on appeal to the OOR. Therefore, the trial court’s Order is affirmed.

Judge McCULLOUGH dissents.

ORDER

NOW, August 9, 2013, the Order of the Court of Common Pleas of Chester County entered in the above-captioned matter is AFFIRMED.

1 . Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

2 . See Section 901 of the RTKL, 65 P.S. § 67.901.

3 .65 P.S. § 67.708(b). Section 708(b) sets forth 30 exceptions that exempt public records from access by a requester. Id.

4 . The documents sought by Requester were:

1. All correspondence regarding Gray-stone between the Superintendent and/or Assistant Superintendent and the School Board of Directors;

2. All records prepared by School personnel during, after, or in conjunction with School personnel's visits to Graystone;

3. All records regarding Graystone provided to the School Board of Directors for their review in preparing for any public meeting;

4. All records regarding the renewal of Graystone’s Charter;

5. All 2010 School Board minutes that included references to Graystone;

6. All tapes or recording of 2010 School Board meetings that reference Graystone;

7. All approved 2011 School Board minutes;

8. All tapes or recordings of 2011 School Board meetings;

9. All draft minutes of 2011 School Board meetings where the minutes have not been approved by the School Board and another School Board meeting has taken place.

(OOR Letter to Parties, April 7, 2011, at 1.)

5 . See Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17) (providing that certain records relating to a noncriminal investigation, including "[ijnvestigative materials, notes, correspondence and reports,” are exempt from disclosure).

6 . See Section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A) (providing that a record that reflects ”[t]he internal predeci-sional deliberations of an agency” is exempt from disclosure).

7 . The District provided the following factual background regarding Graystone:

Graystone is a charter school located within the District. Graystone’s initial charter was granted to begin in the 200[0]-2001 school year for a five year period and renewed by the Board on September 26, 2006 for another five year period. The Board is statutorily required to ensure that charter schools within the District are in compliance with their respective charters, the Charter School Law and the applicable provisions of the Pennsylvania Public School Code of 1949[, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 — 27-2702], See 24 P.S. §§ 17-1728-A, 17[-]1729~A. As a result of receiving correspondence that Graystone intended to seek a renewal of its charter, the Board, through designated agents, began to conduct the required review of Graystone. After evaluating the results of the review, the Board determined that there existed causes for nonrenewal or termination of the Gray-stone charter and issued a Notice of Revocation of Charter listing the reasons for revocation and scheduling a public hearing.

(OOR Final Determination at 3.)

8 . This Court’s standard of review is limited to determining whether the trial court committed an error of law, violated constitutional rights, or abused its discretion. SWB Yankees LLC v. Gretchen Wintermantel, 999 A.2d 672, 674 n. 2 (Pa.Cmwlth.2010), aff'd, 615 Pa. 640, 45 A.3d 1029 (2012). " 'The scope of review for a question of law under the [RTKL] is plenary.'" Id. (quoting Stein v. Plymouth Township, 994 A.2d 1179, 1181 n. 4 (Pa.Cmwlth.2010)).

9 . We note that this is the only issue raised in Requester's "Pa. R.A.P. 1925(b) Statement of Errors Complained of on Appeal” (C.R. at Item 35) and in the briefs filed with this Court.

10 . 65 P.S. § 67.903(2) (providing that a denial shall be in writing and include “[t]he specific reasons for the denial, including a citation of supporting legal authority”).

11 . 65 P.S. § 67.1101(a)(1) (providing that an appeal “shall address any grounds stated by the agency for delaying or denying the request”).

12 . 65 P.S. § 67.1102(b)(3) (providing that an "appeals officer shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the dispute”).

13 . In light of the issuance of the Supreme Court’s opinion in Levy, this Court, by Order of April 25, 2013, directed the parties to file supplemental briefs addressing the impact of Levy on the issue of whether a deemed denial of a RTKL request results in a deemed waiver of an agency's right to raise the exceptions set forth in Section 708(b) of the RTKL, 65 P.S. § 67.708(b), as defenses on appeal to the OOR. We also invited the Pennsylvania NewsMedia Association to file an amicus brief, which it timely filed with this Court in support of the District’s position. The OOR and the Pennsylvania School Boards Association, in support of the District, had previously filed amicus briefs.

14 . 65 P.S. § 67.902 (providing that a request for access shall be deemed denied, absent an agreement by the requester, if the response by the open records officer is expected to exceed 35 days).

15 . 65 P.S. § 67.1101(b) (providing that "[u]less the requester agrees otherwise,” "[i]f the appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied”).

16 . We note that a requester can seek penalties in the form of attorney fees and costs under Sections 1304(a) and 1305(a) of the RTKL, 65 P.S. §§ 67.1304(a), 1305(a), if access to a public record is denied in bad faith. Section 1304 provides for the award of attorney fees and costs:

(a) Reversal of agency determination. — If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds....

(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act[J

65 P.S. § 67.1304(a)(1). Section 1305(a) provides "[a] court may impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.” 65 P.S. § 67.1305(a).