Received 04/10/2015 Commonwealth Court of Pennsylvania Filed 04/10/2015 Commonwealth Court of Pennsylvania 1617 CD 2014
IN THE COMMONWEAL TH COURT OF PENNSYLVANIA
No. 1617 CD 2014
PENNSYLVANIA DEPARTMENT OF EDUCATION, Petitioner vs. RYAN BAGWELL, Respondent THE PENNSYLVANIA STATE UNIVERSITY, Intervenor
No. 1729 CD 2014
THE PENNSYLVANIA STATE UNIVERSITY, Petitioner vs. RYAN BAGWELL, Respondent BRIEF OF RYAN BAGWELL, RESPONDENT
Appeal from the Final Determination of the Pennsylvania Office of Open Records entered August 13, 2014 At No. AP 2014-0935
Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967 Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, P. 0. Box 840 Harrisburg, PA 17108-0840 T: (717)23-3010 F: (717)234-1925
[email protected] [email protected] Counsel for Ryan Bagwell, Respondent
TABLE OF CONTENTS
Page# I.
COUNTER-STATEMENT OF JURISDICTION ......................................... 1
IL
COUNTER-STATEMENT OF SCOPE AND STANDARD OF REVIEW ...................................................................................................... 1
III.
COUNTERSTATEMENT OF QUESTIONS INVOLVED ......................... 2 A.
Whether Section 1307(h) of the RTKL authorizes an agency to seek prepayment fees prior to processing a RTKL request, where: (i) the agency does not request prepayment at the time it invokes a thirty-day extension under Section 902, or (ii) the agency does not provide a final response before the expiration of the thirty-day extension? ................................................................ 2
B.
Whether the OOR erred in addressing the arguments and evidence submitted by the Department in support of its position that the records are exempt from public disclosure? ................ ..................... .............. 2
C.
Whether the Department failed to prove the requested records are exempt from public disclosure? ......................................................... 2
D.
Whether the Commonwealth Court lacks jurisdiction over PSU' s direct appeal from the final determination of the OOR where PSU, a person who purports to have a direct interest in the records subject to the RTKL proceedings, has no right to appeal? ............................................................................................ 2
E.
Whether the Commonwealth Court should quash PSU's notice of intervention and deem PSU's objections to disclosure waived where PSU failed to present any evidence before the close of
1
the evidentiary record to support its assertion that the requested records are exempt from public disclosure? ....................................... 2 F.
IV.
Whether the Commonwealth Court should award attorneys fees to Requester? .............................................................................. 2
COUNTER-STATEMENT OF THE CASE ................................................. 3 A.
The Request ....................................................................................... 4
B.
The Department Invokes a 30-Day Extension .................................... 4
C.
The Department Requests Prepayment of Estimated Fees ................. 4
D.
Bagwell Appeals to the OOR ............................................................. 6
E.
The Final Determination ................................................................... 12
F.
PSU Petitions for Reconsideration ................................................... 15
V.
SUMMARY OF ARGUMENT .................................................................. 17
VI.
ARGUMENT .............................................................................................. 19 A.
Section 1307(h) of the RTKL does not authorize the Department to seek prepayment fees prior to processing the Request because: (i) the Department did not request prepayment at the time it invoked the thirty-day extension under Section 902 of the RTKL; (ii) the Department did not provide a final response before the expiration of the thirty-day extension; and (iii) the procedure employed by the Department would have deprived the Requester of his right to appeal. ............................................................................. 19 1.
The OOR did not err in ruling that "a request or demand for prepayment must occur within the five business day response time established by 11
Section 901." ....................................................................................... 19
B.
C.
2.
The OOR did not err in ruling that "the RTKL does not create ... any extension mechanism or "interim response" process outside the thirty day time period, without written authorization from the requester." .......................................... 24
3.
The Court cannot adopt the procedure employed by the Department below because that procedure will deprive Requester of his right to appeal. ............................................ 30
The OOR did not err in addressing the arguments and evidence submitted by the Department in support of its position that the records are exempt from public disclosure ...........
32
1.
The appeals officer did not abuse his discretion by not issuing an "interim determination" to resolve the prepayment issue. 33
2.
The OOR does not have power to bifurcate RTKL proceedings ............................................................................................... 37
The Department failed to prove the requested records are exempt from public disclosure ..........................................................
39
1.
The deliberations of the members of the PSU BOT, on behalf of PSU, a non-agency, are not exempt from public disclosure under the predecisional deliberation exception to the RTKL, 65 39 P.S. § 67.708(b )(1 O)(i)(A) .....................................................
2.
The Department has not submitted sufficient evidence to prove the identified records are exempt from public disclosure under the predecisional deliberation exception to theRTKL ............................................................................. 42
3.
PSU' s investigative materials are not exempt under the noncriminal investigation exception to the RTKL, 65 P.S. § 67.708(b )(17) ....................................................................... 43
111
D.
4.
The Department failed to show the requested records are exempt under attorney-client privilege or the work-product doctrine .............................................................................. 45
5.
The Department failed to show that the disclosure of the home addresses in the requested records would jeopardize an individual's personal security ............................................ 46
This Court lacks jurisdiction over PSU's direct appeal from the final determination of the OOR because PSU, as a person who purports to have a direct interest in the records subject to the RTKL proceedings, has no right to appeal. .................................................................... 47 1. A person with a direct interest in records that are subject to RTKL proceedings has no right to appeal an adverse final determination of the OOR to the Commonwealth Court ................................... 47 2. PSU has a remedy to seek to intervene in the Department's appeal or to seek relief in this Court's original jurisdiction. ................ 49
E.
The Commonwealth Court should quash PSU' s notice of intervention and deem PSU's objections to disclosure waived because PSU failed to present any evidence prior to the close of the evidentiary record to support its assertion that the requested records are exempt from public disclosure. ............................................................................ 51
F.
The Court should award attorneys fees to Requester .................... 55 1.
The Court should award attorneys fees to Requester because the Department issued an "interim" denial letter ................... 56
2.
The Court should award attorneys fees to the Requester because the Department argues on appeal that the requested
IV
records are exempt from public disclosure even though it has not reviewed the records ......................................................... 56 3.
VIL
The Court should award attorneys fees to Requester because PSU has intervened and pursued a direct appeal where it did not submit any evidence prior to the close of the evidentiary record to prove the requested records are exempt from public disclosure ................................................................................ 57
CONCLUSION WITH REQUESTED RELIEF ......................................... 58
Appendix "A" - Wright v. Department of Corrections, Docket No. AP 2009-0174 (Office of Open Records April 13, 2009) Final Determination Appendix "B" - Unpublished Memorandum and Order dated August 22, 2014 Pennsylvania State Education Association v. Pennsylvanians for Union Reform (PSEA v. PFUR), 310 C.D. 2014
v
TABLE OF CITATIONS
Page#
CASES: Allegheny Cnty. Admin. Servs. v. A. Second Chance, Inc., 13 A.3d 1025 (Pa.Cmwlth. 2011) ........................................................................................... 48, 49 Allegheny Cnty. Dep't of Admin. Servs. v. Parsons, 61 A.3d 336 (Pa.Cmwlth.2013) .................................................................................................. 57 Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409 (Pa.Cwlth.2014) ....... 1, 45 Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) ............................................................................ 1, 33, 37, 49, 55 Capital BlueCross v. Pennsylvania Ins. Dep't, 937 A.2d 552 (Pa.Cmwlth. 2007) ................................................................................................. 52 Carey v. Pennsylvania Dep't of Corr., 61 A.3d 367 (Pa.Cwlth. 2013) ................. 42 Com., Office of Open Records v. Ctr. Twp., 95 A.3d 354 (Pa.Cmwlth.2014) .... 33 Commonwealth v. Vartan, 557 Pa. 390, 399, 733 A.2d 1258 (Pa.1999) ............. 41 Commonwealth v. Washington, 927 A.2d 586 (Pa.2007) .................................... 53 Dep't of Pub. Welfare v. Chawaga, 91 A.3d 257 (Pa.Cmwlth.2014) ................... 44 Department of Transportation v. Drack, 42 A.3d 355 (Pa. Cmwlth.2012) ...................................................... 10, 14, 24, 27, 28, 29, 36, 56 Guarrasi v. Scott, 25 A.3d 394 (Pa.Cmwlth. 2011) .............................................. 38 H.D. v. Department of Public Welfare, 751 A.2d 1216 (Pa.Cmwlth.2000) ......... 31 Hewitt v. Com., 116 Pa.Cmwlth. 413, 417, 541 A.2d 1183 (1988) ..................... 56
-Vl-
Indiana University of Pennsylvania v. Loomis, 23 A.3d 1126 (Pa.Cmwlth. 2011) ................................................................................................. 36 Johnson v. Pennsylvania Convention Ctr. Auth., 49 A.3d 920 (Pa.Cmwlth.2012) .................................................................................................. 44 La Valle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001) ......... 41 Levy v. Senate of Pennsylvania (Levy II), 65 A.3d 361 (Pa.2013) ...................... 53 Levy v. Senate of Pennsylvania (Levy III), 94 A.3d 436 (Pa.Cmwlth.2014) ........................................................................................ 2, 43, 46 McGowan v. Pennsylvania Dep't ofEnvtl. Prot., 103 A.3d 374 (Pa.Cmwlth.2014) .................................................................................................. 43 Office of Governor v. Scolforo, 65 A.3d 1095 (Pa.Cmwlth.2013) .... 12, 40, 42, 46 Office of the Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013) ................................................................................................ 47 Pennsylvania State Educ. of Ass'n ex rel. Wilson v. Com., Dep't of Cmty. & Econ. Dev. (PSEA II), 616 Pa. 491, 50 A.3d 1263 (2012) ....................................... 48, 50 Pennsylvania State Educ. Ass'n ex rel. Wilson v. Com. (PSEA III), No. 396 M.D. 2009, 2015 WL 652253, (Pa.Cmwlth. Feb. 17, 2015) .......................................... 48 Pennsylvania State Education Association v. Pennsylvanians for Union Reform (PSEA v. PFUR), No. 310 C.D. 2014 ........................................... 49 Pennsylvania State Lodge, Fraternal Order of Police v. Commonwealth, Dep't of Conservation and Natural Resources, 909 A.2d 413(Pa. Cmwlth. 2006) ............ 52 Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa.Cmwlth.2010) ................................................................................ 10, 11, 29, 35 Roetenberg v. Com., Office of Budget, 121 Pa.Cmwlth. 97, 550 A.2d 825 (1988) .....................................................................................................................
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49
State Employees' Ret. Sys. v. Pennsylvanians for Union Reform, No. 207 C.D. 2014, 2015 WL 1259522, (Pa.Cmwlth.Mar.20,2015) .......................................... 38 Tribune-Review Pub. Co. v. Dep't of Comm. and Econ. Development, 580 Pa. 80, 859 A.2d 1261 (2004) ........................................................................................... 41 Walker v. Pennsylvania Ins. Dep't, No. 1485 C.D. 2011, 2012 WL 8683307, at *4 (Pa.Cmwlth. June 15, 2012) ............................................................................ 31, 38 Wheeler v. Pennsylvania Bd. of Prob. & Parole, 862 A.2d 127 (Pa.Cmwlth.2004) ..................................................................................................
48
STATUTES: 1 Pa. C.S.A. §1924 .................................................................................................
20
42 Pa. C.S.A. § 763(a)(2) .......................................................................................
1
65 P.S. §§ 67.101-3104 ........................................... .-....................................... 2, 3, 4 65 P.S. § 67.102 .......................................................................................
5, 9, 21, 22
65 P.S. §§ 67.708(b)(6)(i)(A) ............................................................................ 5, 40 65 P .S. §67. 708(b )(1 O)(I) ........................................................................................
9
65 P. S. § 67.708(b )(16) ..........................................................................................
5
65 P.S. § 67.708(b )(17) .....................................................................................
9, 44
65 P.S. § 67.708(b)(18) ........................................................................................... 65 P.S. § 67.901 ...................................................................................
5
13, 19, 20, 30
65 P.S. § 67.902 .....................................................................................................
22
65 P.S. § 902(a)(6) .................................................................................................
20
65 P.S. § 67.902(b) ................................................................................................
13
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65 P.S. § 67.902(b )(1) ............................................................................................
22
65 P.S. § 67.902(b )(2) .............................................................. 13, 22, 24, 29, 30, 31 65 P.S. § 67.902(b)(3) ............................................................................................
24
65 P.S. § 67.llOl(a)(l)
31
..........................................................................................
65 P.S. § 67.1101(b)(2) ...................................................................................
37, 38
65 P.S. § 67.1102(b) ..........................................................................................
1, 33
65 P.S. § 67.1102(b)(3) .........................................................................................
33
65 P.S. § 1lOl(c) .....................................................................................................
6
65 P.S. §67.1301(a) .................................................................................................
1
65 P.S. § 67.1302(a) ..............................................................................................
48
65 P.S. § 67.1307(h) ..............................................................................................
20
MISCELLANEOUS: Chapter 5 of Title 2 of the Administrative Agency Law ...................................... 48 Article V, Section 9 of the Pennsylvania Constitution ......................................... 48
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I.
COUNTER-STATEMENT OF JURISDICTION This Honorable Court has jurisdiction over the appeal filed by the
Pennsylvania Department of Education at Docket No. 1617 C.D. 2014 pursuant to 42 Pa. C.S.A. § 763(a)(2) and 65 P.S. § 67.1301(a). The court has discretion to exercise original or appellate jurisdiction. See Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409, 414 (Pa.Cwlth.2014), reargument denied (Dec. 18, 2014)("this court may exercise jurisdiction as a fact-finder, and make independent findings based on its review of the evidence") citing Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010), affd, 621 Pa. 133, 75 A.3d 453 (2013). This Honorable Court does not have jurisdiction over the direct appeal filed by the Pennsylvania State University at Docket No. 1729 C.D. 2014 for the reasons set forth in Section III-D of this brief.
II.
COUNTER-STATEMENT OF SCOPE AND STANDARD OF REVIEW While the Commonwealth Court may conduct de nova, plenary review of
appeals from final determinations of the OOR, there is "nothing in the RTKL that would prevent [reviewing courts] from simply adopting the findings of fact and conclusions of law of an appeals officer when appropriate." Bowling, 75 A.3d at 4 73. The Commonwealth Court requires, except in extraordinary circumstances, that an agency present all of its evidence before the close of the record in the OOR
1
proceedings, and the court defers to the findings of the appeals officer. Levy v. Senate of Pennsylvania, 94 A.3d 436, 441-42 (Pa.Cmwlth.2014).
III.
COUNTERSTATEMENT
OF QUESTIONS INVOLVED
A.
Whether Section 1307(h) of the RTKL authorizes an agency to seek prepayment fees prior to processing a RTKL request, where: (i) the agency does not request prepayment at the time it invokes a thirty-day extension under Section 902, or (ii) the agency does not provide a final response before the expiration of the thirty-day extension? Answered by the OOR in the Negative. Suggested answer in the Negative.
B.
Whether the OOR erred in addressing the arguments and evidence submitted by the Department in support of its position that the records are exempt from public disclosure? Not Answered by OOR. Suggested Answer in the Negative.
C.
Whether the Department failed to prove the requested records are exempt from public disclosure? Answered by the OOR in the Affirmative.
Suggested Answer in the
Affirmative. D.
Whether the Commonwealth Court lacks jurisdiction over PSU's direct appeal from the final determination of the OOR where PSU, a person who purports to have a direct interest in the records subject to the RTKL proceedings, has no right to appeal? Not answered by the OOR. Suggested answer in the Affirmative.
E.
Whether the Commonwealth Court should quash PSU's notice of intervention and deem PSU's objections to disclosure waived where PSU failed to present any evidence before the close of the evidentiary record to support its assertion that the requested records are exempt from public disclosure? Not answered by the OOR. Suggested answer in the Affirmative. 2
F.
Whether the Commonwealth Court should award attorneys fees to Requester? Not Answered by OOR. Suggested Answer in the Affirmative.
IV.
COUNTER-STATEMENT OF THE CASE Before the Court are the appeals of the Pennsylvania Department of
Education (Department) and the Pennsylvania State University (PSU) from the Final Determination of the Office of Open Records (OOR)(attached as Exhibit "A" to the Department's brief), which reversed the Department's denial of a request (Request) for public records by Ryan Bagwell (Requester), made pursuant to the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.1013104. The Department and PSU challenge the OOR' s holdings that the Department could not seek prepayment fees under the facts of this case, and that the Department failed to prove the requested records are exempt from public disclosure. The Department and PSU further allege that OOR erred by not bifurcating the proceedings below to address the prepayment issue separately from the exemption issue.
A.
The Request Requester filed the request on May 7, 2014. R. 6a-7a. Requester sought: 1)
correspondence between former Secretary of Education Ron Tomalis, who served 3
as a statutory ex officio member of the PSU Board of Trustees (Board), and 29 other individuals, who served as PSU executive administrators or PSU Board members; and 2) correspondence pertaining to PSU between the Secretary Tomalis and former Governor Tom Corbett and five other individuals, who were members of the former Governor's executive staff and cabinet. R. 6a-7a. 1 B.
The Department Invokes a 30-Day Extension
The Department initially invoked a 30-day extension, pursuant to Section 902(b)(2) of the RTKL, to respond to the Request. R. 9a-10a. The Department's letter (referred to by the Department as an "Interim Notice"), dated May 14, 2014, advised an extension was needed because: (i) "the extent or nature of the request precludes a response within the required time period," and (ii) "a legal review is necessary to determine whether the record is a record subject to access under the RTKL." R. lOa. C.
The Department Requests Prepayment of Estimated Fees
On June 13, 2014, the date of the expiration of the 30-day extension, the Department issued a so-called "Prepayment Notice," refusing to process the request unless Requester paid an estimated fee of $338.88. R. 12a-14a.
1
Requester asked the Department to provide the records in an electronic format via email. R. 7a. He asked, "[w]henever possible, please provide any responsive records in an electronic format such as Adobe PDF, and send the records by e-mail to
[email protected]." Id. 4
The Department admitted locating approximately 644 pages of records that are responsive to the Request. (R. 13a). The Department did not express a date that a final response was expected to be provided, even if prepayment was made, but rather stated: Upon receipt of the required prepayment, PDE will provide a response to your request in accordance with the timeframes and procedures under the RKTL. If we do not receive full payment of the estimated fee by July 7, 2014, we will note that payment was not timely received and that our obligations under the RTKL are ended with regard to this request, and the request will be considered denied for lack of timely payment. The RKTL requires that "[a]ll applicable fees must be paid in order to receive access to the records requested." R. 13a. The Department purported to "reserve the right, in our final response, to assert any exceptions to access to the records under the R TKL, such as, but not limited to: personal information, internal pre-decisional deliberations, criminal investigation, noncriminal investigation, attorney-client privilege and/or attorneywork product doctrine. 65 P.S. §§ 67.708(b )(6)(i)(A), 67.708(b )(IO)(i)(A), 67.708(b)(16), and 67.708(b)(18); § 67.102." R. 13a. The Department advised Requester that he had a right to appeal from the prepayment demand and provided the OOR' s contact information and appeal deadlines. R. 13a. The Department also said "[i]fthe estimated fee payment is made, you will have an opportunity to appeal the final agency response if any records are denied or redacted or additional payment is required to fulfill the 5
request and more information on that process will be provided as part of the final response." R. 14a.
D.
Bagwell Appeals to the OOR Requester filed an appeal with the OOR on June 16, 2014. R. 2a-14a.
Requester set forth the following grounds in support of his appeal: Nothing under the RTKL permits a Commonwealth agency to provide a second initial response. "[O]nce an agency exercises its right under Section 902 of the RTKL, it must provide a final response within the thirty-day period." Department of Transportation v. Drack, 42 A.3d 355 (Pa. Cmwlth.2012). While prepayment may be demanded if costs of duplication and postage are expected to exceed $100, notice of prepayment may only be provided in the agency's initial response. See Bracey v. Dept.of Corrections, OOR Dkt. No. AP 2013-2403. The Department's decision to invoke an extension pursuant to Section 902 required it to provide a final response by June 13, 2014. Because it failed to provide a final response within the prescribed period of time, the request is Deemed Denied. R. 4a. Requester asked the OOR to order the Department to release the 644 pages of located records in their entirety because the Department did not set forth any grounds upon which access was being denied. Id. OOR invited both parties to submit information and legal argument to support their positions by June 25, 2014, and directed the Department to notify any individuals who may have a direct interest in the records subject to the appeal of their ability to participate pursuant to 65 P.S. § 67.1 lOl(c). R. 15a-18a.
6
PSU requested the right to participate on June 23, 2014. R. 19a-22a. PSU asserted it has a direct interest in the records requested. R. 20a-21a. Specifically, PSU asserted: The requests subject to this appeal appear to seek communications between members of Penn State's Board of Trustees and others, including attorneys retained by the University. Disclosure of any such documents risks violation of the attorney/client privilege and/or the attorney work product privilege protecting Penn State. In addition, Penn State believes many of the documents requested may be protected from disclosure by other exceptions under the RTKL. R. 21a. The appeals officer granted PSU's request to participate by email dated June 25, 2014. R. 44a. The appeals officer permitted PSU to make a submission no later than July 3, 2014. R. 44a. On June 25, 2014, the initial deadline for the Department and the Requester to submit argument and evidence to OOR, Requester sent an email to the appeals officer expressing concern "that the Department will argue some of the responsive records are exempt from disclosure." R. 43a. Requester asked the appeals officer for a period of time to respond to any new arguments raised by the Department. Id. The appeals officer responded that he would review the Department's submission to determine if an extended briefing schedule was necessary. R. 42a. That same day, June 25, 2014, the Department submitted a letter memorandum, verified by Department's legal counsel, and an affidavit by Secretary Tomalis, in response to the Requester's appeal. R. 22a-40a. The 7
Department submitted argument not only in support of the prepayment issue, but also submitted argument and evidence in support of its position that the requested records are exempt from public disclosure. First, the Department asserted Section 1307(h) of the RTKL authorized the Department to seek prepayment from Requester for fees in excess of $100, notwithstanding the Department's initial response. R. 24a. The Department alleged the extent or nature of the Request precluded the Department from determining the prepayment fees prior to the five-day deadline for its initial response. R. 26a. The Department alleged that it was not required to process the request until prepayment is received. R. 28a. Second, in addition to its prepayment argument, the Department asserted that " [c]ertain records responsive to Bagwell' s request or information in the records may be exempt from access under the RTKL .... " R. 28a (emphasis supplied). The Department alleged that the Tomalis affidavit proves that the requested records are exempt under attorney-client privilege; work-product privilege; the predecisional deliberation exception, and the noncriminal investigation exception; and that the records contain personal identification information, information for which disclosure would result in harm to personal security, and personal and private information which must be redacted. R. 29a33a. 8
In its request for relief, the Department asked the OOR to deny the Requester's appeal and find either: (i) that the Department could seek prepayment and suspend processing the request until prepayment was received, or, alternatively, (ii) that the requested records are exempt from access under statutory exemptions. R. 33a. On June 26, 2014, the appeals officer asked the Requester to grant a 14-day extension of the deadline to issue a final determination, so that the Requester would have an opportunity to respond to the Department's newly raised exemptions from disclosure, and so that the Department would have an opportunity to provide rebuttal evidence/argument. R. 41a. Requester agreed to the time extension. Id. The appeals officer established new deadlines for Requester to provide a response to the Department's submission by July 7, 2014, and for the Department to provide rebuttal argument/evidence, no later than July 14, 2014. Id. On July 3, 2014, PSU submitted a letter memorandum. R. 47a-50a. PSU maintained "that some of the records subject to this appeal are likely protected from disclosure pursuant to statutory exceptions, including 65 P.S. §§ 67.102, 67.305, 67.708(b)(10)(i) and 67.708(b)(l 7)." R. 47a (emphasis supplied). PSU alleged it had not had "an opportunity to determine and review the specific documents that may be at issue prior to filing this submission" and PSU "does not have information regarding the documents at issue that is necessary to put forth 9
evidence demonstrating an exception to disclosure under the RTKL." R. 49a. PSU purported to reserve the right to provide further evidence and argument if and when the OOR directs the Department to provide an index of documents which are responsive to the Request but which are protected by privilege and/or a statutory exception. R. 50. On July 9, 2014, Requester submitted rebuttal argument to the Department's letter memorandum. R. 53a-55a. Requester asked the OOR to accept the submission nunc pro tune. R. 5 la. The appeals officer accepted the submission into the record. Id. The appeals officer clarified that the Department and PSU had two more days, until July 16, 2014, to provide any [sur]rebuttal argument. Id. In his rebuttal argument, Requester asserted the Department's position on prepayment directly conflicts with the Commonwealth Court's decisions in Drack and Prison Legal News and was not based on a reasonable interpretation of the law. R. 53a-54a. Requester further argued that the Department failed to prove any of the responsive records are exempt from public disclosure. R. 54a-55a. Requester alleged that Secretary Tomalis's affidavit "does not describe the responsive records with any sort of specificity that would enable anyone to determine whether any exemption applies to any responsive record." R. 54a. Requester also noted that the OOR has already decided that records of noncriminal investigations conducted by PSU are not subject to the noncriminal investigation 10
exception, and that the predecisional deliberation exception does not apply to communications between agency officials and PSU because those communications are not internal to Commonwealth agencies. R. 54a-55a. On July 16, 2014, pursuant to the OOR's grant of additional time to submit rebuttal argument (R. 5 la), the Department submitted a second letter memorandum. R. 56a-60a. The Department reiterated the argument from its first letter memorandum regarding prepayment. R. 57a. However, the Department raised a new argument, that the Department had "properly preserved all applicable exemptions from access under the RTKL." R. 58a.
The Department asked the
OOR to bifurcate the proceedings as follows: In order to simplify the disputes presented by this appeal, PDE respectfully requests that the OOR bifurcate the issues to allow the OOR to first reach a determination addressing the prepayment question. After that initial determination is made, an aggrieved party could choose to appeal the determination to the Commonwealth Court or proceed with the request in accordance with the determination. After this ruling and any appeals, the OOR could address any exemptions that may be cited by PDE. If no appeals are taken from that initial determination, the parties can proceed to address the exemptions in accordance with the RTKL and the OOR's order. Irrespective of the outcome of OOR's determination on the prepayment request, PDE must be given an opportunity, following that determination, to fully prepare the records for review and redaction, and cite all applicable exemptions. See Prison Legal News, 992 A.2d at 949 ("Before any records are released, the Department must have the opportunity to determine whether any information requested is exempt from disclosure.") R. 58a (internal footnote omitted). 11
On July 16, 2014, PSU informed the appeals officer that it would not be filing a formal response to Requester's submission dated July 9, 2014. R. 61a. PSU purported to "reserve the right to provide further evidence and argument if and when the Department of Education completes the process of identifying those documents responsive to Mr. Bagwell' s request that may be protected by privilege or statutory exception." Id. On July 30, 2014, the OOR, pursuant to an agreement by Requester, extended the deadline to issue a final determination by an additional 14 days. R. 62a.
E.
The Final Determination OOR held that the Department could not seek prepayment from the
Requester under the facts of this case because the Department did not demand prepayment in its initial response, and because the Requester did not issue a written authorization to extend the deadline for the Department to issue a final response. Final Determination, pp. 5-7, attached as Exhibit "A" to Department's brief; R. 67a-69a. OOR outlined the provisions of the RTKL that establish the procedure that an agency must employ in responding to a request, as follows: First, Section 901 of the RTKL states that "[t]he time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency." 65 P.S. § 67.901; see also Office of the Governor v. Office of Open Records, 59 A.3d 12
1165 (Pa. Commw. Ct. 2013), appeal pending 10 MAP 2013. Second, Section 902 of the RTKL provides that an agency may invoke a thirty (30) day extension of time to respond to a RTKL request when certain factors are present. 65 P.S. § 67.902(b ). When an agency invokes an extension of time, the notice for this extension is required to include a reasonable date that a response is expected to be provided and an estimate of applicable fees owed when the record becomes available. See 65 P.S. § 67.902(b )(2). The response date cannot exceed thirty calendar days (following the five business days under Section 901) without the requester's written agreement. Id. If an agency fails to issue a response by the extended deadline or obtain a requester's agreement to an additional extension of time, the request is deemed denied. Id. Id., p. 5; R. 67a. OOR read these provisions in para materia to establish two rules dispositive of the outcome of this appeal. First, OOR ruled that "a request or demand for prepayment must occur within the five business day response time established by Section 90 l ." OOR explained: While Section 1307(h) authorizes an agency to demand prepayment, it does so in the context of requiring such a demand to be made in the extension notice. The notice must be made within five business days or the requested is deemed denied. See 65 P.S. § 67.901. Likewise, the demand for prepayment must be made within five business days or the ability to seek prepayment prior to processing is waived. Id., p. 6; R. 68a. Second, OOR ruled that "the RTKL does not create or mention any extension mechanism or "interim response" process outside the thirty day time
13
period, without written authorization from the requester." Id., p. 6; R.68a. OOR explained: A response by definition is correspondence that either provides "access to a record or ... [a] written notice granting, denying or partially granting or partially denying access to a record." 65 P.S. § 67.102. "[W]hile Section 1307(h) of the RTKL may support an agency's delay in processing a request when an agency anticipates fees exceeding $100, the RTKL otherwise does not provide for a final response beyond the thirty-day response period." Pennsylvania Department of Transportation v. Drack, 42 A.3d 355, 362 (Pa. Commw. Ct. 2012)[.] Id., p. 6; R. 68a. OOR noted the Department's initial notice of intent to invoke the thirty day extension did not include an estimate of fees. Id., p. 5; R. 67a. Rather, the Department issued an "interim response" on the last day of the thirty day extension period that, for the first time, required prepayment prior to reviewing
the records identified by the Department as responsive to the Request, and further purported to reserve the right to assert any exceptions to access to the records under the RTKL. Id., pp. 5-6; R. 67a-68a (emphasis supplied). OOR held the Department's responses did not comply with the process created by the RTKL. Id., p. 6; R. 68a. First, OOR found the Department waived its ability to seek prepayment prior to processing the Request because it failed to request prepayment in the notice of extension. Id. Second, OOR found the "[t]he Department's attempt to prolong the response time beyond the thirty days by using 14
an "interim response" and then reserving the right to make a "final response" alters the black letter procedural structure of the RT.KL and is not permissible." Id., p. 7; R. 69a. Although OOR recognized the serious challenge that the RTLK procedure imposes on agencies in responding to voluminous requests, it reasoned "such a challenge does not permit agencies or the OOR to redefine the procedural framework and clear-cut boundaries set forth in the RT.KL." Id. OOR also addressed each exemption for which the Department asserted argument and evidence. OOR held that the Department failed to prove any exemptions apply (excepting home, cellular, or personal telephone numbers and personal email addresses, including work-issue telephone number and e-mail addresses; and names and home addresses of minors). R. 69a-78a. F.
PSU Petitions for Reconsideration
On August 28, 2014, PSU submitted a petition for reconsideration. R. 80a105a. PSU attached a privilege log specifically identifying four emails responsive to the Request that were allegedly protected by the attorney-client privilege and/or the work-product doctrine. R. 89a. PSU attached the affidavit of Thomas G. Poole, Vice President of Administration and Secretary of the Board of Trustees, as evidence in support of its attorney-client privilege/work-product claim. R. 91a. On September 19, 2014, the OOR deemed PSU' s petition for reconsideration to be denied by operation of law due to the Department's filing of 15
petition for review with the Commonwealth Court. R. 106a. The OOR did not reopen the record or otherwise allow Requester to submit any response to the newly raised arguments and evidence in PSU' s petition for reconsideration.
16
V.
SUMMARY OF ARUGMENT This Court should affirm the OOR' s Final Determination which held: (i) the
Department may not seek prepayment of fees under Section 1307(h) of the RTKL; and (ii) the Department failed to prove the requested records are exempt. The OOR did not err in holding the Department may not seek prepayment under Section 1307(h) of the RTKL. The Department did not comply with its obligations under the RTKL to request prepayment at the time it invoked a thirtyday extension to respond to the request, nor to provide a final response before the expiration of the extension. Rather, in direct contradiction to Commonwealth Court precedent, the Department issued an "interim response" on the last day of the thirty-day extension period purporting to reserve the right to review the records after prepayment was received and to issue a final response at an unspecified time. The OOR did not commit an abuse of discretion by addressing the arguments and evidence that the Department presented in support of its position that the records are exempt from public disclosure, instead of providing a preliminary determination on the prepayment issue. The RTKL requires the appeals officer to rule on procedural matters on the basis of justice, fairness, and the expeditious resolution of the dispute. The Commonwealth Court has held that an agency that invokes a thirty-day extension must issue a final response within thirty days. The appeals officer did not have the authority to suspend the 17
proceedings, even thought the Department failed to comply with its duty to issue a final response, because the RKTL requires the appeals officer to issue a final determination within 3 0 days of the notice of appeal. The OOR did not err by concluding the Department failed to prove the requests records are exempt from public disclosure because the Department has not reviewed the requested records to determine whether they are exempt. This Court should quash PSU' s appeal because a person with a direct interest in records subject to RTKL proceedings does not have a right to appeal. In addition, this Court should quash PSU's notice of intervention and deem PSU's objections to disclosure waived because PSU did not offer any evidence prior to the close of the administrative record to support its position that the requested records are exempt. This Court should enter an award of attorneys fees and costs in the Requester's favor because: (i) the Department issued an "interim response" as expressly prohibited by Commonwealth Court precedent, (ii) the Department continues to argue the requested records are exempt from public disclosure, even though the Department has not reviewed the records to determine if they are exempt, and (iii) PSU has intervened and pursued a direct appeal where it did not submit any evidence prior to the close of the evidentiary record that the requested records are exempt. 18
VI.
ARGUMENT
A.
Section 1307(h) of the RTKL does not authorize the Department to seek prepayment fees prior to processing the Request because: (i) the Department did not request prepayment at the time it invoked the thirty-day extension under Section 902 of the RTKL; (ii) the Department did not provide a final response before the expiration of the thirty-day extension; and (iii) the procedure employed by the Department would have deprived the Requester of his right to appeal. The Court must affirm the OOR' s holding that the Department cannot seek
prepayment from the Requester under the facts of this case. The RTKL requires an agency to request prepayment of fees within the five business days following the receipt of a request. Even if this Court accepts the Department's unsubstantiated argument that it was unable to make a reasonable estimate of fees during the initial five business day response period, the RTKL requires an agency that invokes a thirty-day extension to provide a final response no later than the expiration of the thirty-day extension period. The Department's appeal lacks merit because it did not comply with either of these obligations. An agency cannot use a last-minute prepayment demand to toll the deadline for providing a final response for an unlimited period of time.
1.
The OOR did not err in ruling that "a request or demand for prepayment must occur within the five business day response time established by Section 901." Section 901 of the RTKL requires an agency to respond to written requests
for access to records within five business days. 65 P.S. § 67.901 ("The time for 19
response 2 shall not exceed five business days from the date the written request is received by the open-records officer for any agency.") Pursuant to the heading of Section 901, this is meant to be the "general rule." 3 Although this general rule permits an agency to take up to five business days to respond, the agency also has a duty to respond "as promptly as possible under the circumstances existing at the time of the request." 65 P.S. § 67.901. Section 902 of the RTKL permits an agency to extend the five business day response deadline by up to thirty days if the agency's open-records officer determines one of seven enumerated exceptions applies. 65 P.S. § 67.902. Of particular relevance to this appeal, an agency may extend the five business day response deadline if the requester refuses to pay applicable fees authorized by the RTKL, 65 P.S. § 67.902(a)(6). One such type of fee authorized by the RTKL is prepayment fees under Section 1307(h) which provides "[p]rior to granting a request for access in accordance with this act, an agency may require a requester to 4
prepay an estimate of the fees authorized under this section if the fees required to fulfill the request are expected to exceed $100." 65 P.S. § 67.1307(h).
2
A "response" is defined as "access to a record or an agency's written notice to a requester granting, denying or partially granting and partially denying access to a record." 65 P.S. § 67.102. 3 See 1 Pa.C.S.A. § 1924 ("The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof.") 4 Section 1307 of the RTKL permits fees for postage, duplication, or certification. See 65 P.S. §§ 67.1307 subsections (a), (b) and (c). 20
OOR interpreted Sections 901, 902, and 1307(h) together to support a rule that "a request or demand for prepayment must occur within the five business day response time established by Section 901." OOR explained: While Section 1307(h) authorizes an agency to demand prepayment, it does so in the context of requiring such a demand to be made in the extension notice. The notice must be made within five business days or the request is deemed denied. See 65 P.S. § 67.901. Likewise, the demand for prepayment must be made within five business days or the ability to seek prepayment prior to processing is waived. Id., p. 6; R. 68a. OOR noted the Department's initial notice of intent to invoke the thirty-day extension did not include an estimate of fees. Id., p. 5; R. 67a. Thus, OOR held the Department waived its ability to seek prepayment prior to processing the Request because it failed to request prepayment in the notice of extension. Id., p. 6; R. 68a. Department argues "the plain language of the RTKL leads to the sole conclusion that section 1307(h) authorizes an agency to seek prepayment fees that exceed $100 and [to] delay processing a R TKL request, even if the agency did not provide a prepayment estimate when it invoked an extension of time to respond to the request." Department's Brief, p. 13. Department's argument lacks merit. Section 1307(h) authorizes an agency to seek prepayment "[p]rior to granting a request for access in accordance with this act." 65 P.S. § 67.1307(h)(emphasis supplied). As explained above, a "response" (e.g. "an agency's written notice to a request granting ... access"), 65 P.S. § 67.102, must be 21
provided either within the initial five business days following the receipt of the request, 65 P.S. § 67.901, or within thirty-days after the expiration of the initial five business day response deadline. 65 P.S. § 67.902. The Department's argument that Section 1307(h) permits an agency to demand prepayment after the expiration of the initial five business day response period is inconsistent with the extension scheme set forth in Section 902. It is implicit under Section 902 that the agency's open records officer must request prepayment within five business days of the receipt of the request. First, if the agency's open-records officer determines that one of the Section 902(a) exceptions (including the failure to pay applicable fees) applies, the agency's open records officer must send written notice of such fact to the requester within five business days of the receipt of the request. 65 P.S. § 67.902(b )(1 ). Second, if the agency extends the five business day response deadline, it must notify the requester that "the request for access is being reviewed, the reason for the review, a reasonable date that a response is expected to be provided and an estimate of applicable fees owed when the record becomes available." 65 P.S. § 67 .902(b )(2)( emphasis supplied). The Department argues Section 902(b )(2) cannot limit an agency's ability to seek prepayment to only the time period in the first five business days following a request because the agency may not be able to ascertain the prepayment amount
22
during the first five business days following the receipt of an RTKL request. Department's Brief, pp. 16-19. Here, the Department alleged that it "made an initial determination that the extent and nature ofBagwell's request required that the agency would need to manually review thousands of documents, mostly in email format and many with attachments, and that such review would take more than five business days to identify responsive records." R. 23a. The Department's own admissions do not support its argument that it could not make a reasonable estimate of the amount of the prepayment fee during the five business days following the receipt of the request. The Department asserted that it identified the responsive records "over a period of several days and dozens of hours." R. 24a. The Department does not explain why it was impossible to conduct this search during the five business days following the receipt of the request. Thus, the Department's argument that it could not ascertain the amount of prepayment fees prior to the five business day response deadline is unsubstantiated. This Court should affirm the OOR' s holding that the Department waived its ability to seek prepayment by failing to request prepayment during the five business days following the receipt of the Request. Read together, Sections 901, 902 and 1307(h) of the RTKL require an agency to request prepayment prior to the initial five business day response deadline. 23
2.
The OOR did not err in ruling that "the RTKL does not create ... any extension mechanism or "interim response" process outside the thirty day time period, without written authorization from the requester."
An agency cannot extend the time to respond to a request for access to records by more than thirty days, unless the requester grants a longer extension. Section 902 provides "[i]f the date that a response is expected to be provided is in excess of 30 days, following the five business days allowed for in section 901, the request for access shall be deemed denied unless the requester has agreed in writing to an extension to the date specified in the notice." 65 P.S. § 67.902(b)(2). 5 OOR ruled that "the RTKL does not create or mention any extension mechanism or "interim response" process outside the thirty day time period, without written authorization from the requester." Id., p. 6; R.68a. OOR explained: A response by definition is correspondence that either provides "access to a record or ... [a] written notice granting, denying or partially granting or partially denying access to a record." 65 P.S. § 67.102. "[W]hile Section 1307(h) of the RTKL may support an agency's delay in processing a request when an agency anticipates fees exceeding $100, the RTKL otherwise does not provide for a final response beyond the thirty-day response period." Pennsylvania Department of Transportation v. Drack, 42 A.3d 355, 362 (Pa.Commw.Ct.2012)[.] Id., p. 6; R. 68a.
5
If the requester agrees to the extension, the request shall be deemed denied on the day following the date specified in the notice if the agency has not provided a response by that date. 65 P.S. § 67.902(b)(3). 24
In this case, OOR noted the Department issued an "interim response" on the last day of the thirty-day extension period that, for the first time, required
prepayment prior to reviewing the records identified by the Department as responsive to the Request, and further purported to reserve the right to assert any exceptions to access to the records under the RTKL. Id., pp. 5-6; R. 67a-68a (emphasis supplied). Thus, OOR held the "[t]he Department's attempt to prolong the response time beyond the thirty days by using an 'interim response' and then reserving the right to make a 'final response' alters the black letter procedural structure of the RTKL and is not permissible." Id., p. 7; R. 69a. The OOR' s holding should be affirmed as a straightforward application of the Commonwealth Court's holding in Drack. There, the Commonwealth Court held "once an agency exercises its right under Section 902 of the RTKL, it must provide a final response within the thirty-day period, and that final response, under Section 903 of the RTKL, must identify all reasons why an agency is denying access to all or part of the requested records." Id., 42 A.3d at 362. In Drack, the Department of Transportation (DOT) invoked a thirty-day extension to respond to a RTLK request in order to make a legal determination whether the documents requested were subject to access under the RKTL. Id., 42 A.3d at 357. On the date of the expiration of the thirty-day extension, DOT issued a so-call "interim response" to inform the requester it had not processed the request 25
because the requester had not paid a $16.38 balance due for two prior RTKL requests. Id. DOT purported to reserve the right to assert exemptions in a forthcoming final response, to be issued after the requester paid the outstanding balance due. Id. The requester filed an appeal to the OOR, arguing, in part, that DOT' s "interim response" was a deemed denial. Id., 42 A.3d at 358.
OOR rejected
DOT' s assertion that an agency can issue an "interim response", and concluded, when an agency opts to defer a final response under Section 902 of the RTKL, the R TKL deems the agency to have denied the request if an agency issues a final response beyond the thirty-day extension period. Id., 42 A.3d at 358. On appeal to the Commonwealth Court, DOT contended "because Section 901 of the RTKL provides that 'all applicable fees shall be paid in order to receive access to the record requested,' DOT is permitted to provide a response that was not 'final' as anticipated by Section 902 and 903 of the RTKL." Id., 42 A.3d at 362. The Commonwealth Court disagreed that DOT could issue an "interim" denial. Drack held the requester's past due payment to DOT did not provide DOT with the power to issue an "interim" final response because "Sections 902 and 903 of the RTKL clearly anticipate that an agency must provide a final response within thirty days where it exercises its right under Section 902 of the R TKL, and Section 26
903 of the RTKL requires an agency to identify all reasons why it is denying in whole or in part a RTKL request." Id., 42 A.3d at 363-64. The RTKL's "clear mandate" required DOT to provide a final response identifying all reasons for denying the request. Id., 42 A.3d at 364. 6 Department asserts Drack's holding only applies when prepayment fees are less than $100. Department's Brief, p. 26. Department concedes, when prepayment fees are less than $100, that an agency must process the request but may withhold access. Id. Yet, when prepayment fees are more than $100, Department argues that an agency is authorized to delay processing the request. Id. Department reasons that an agency may respond differently where prepayment fees exceed $100 because Section 1307(h) permits agencies to delay expending the resources to process a voluminous request until the requester verifies he is willing and able to pay for the records. Id., pp. 16-20. The Department's attempt to distinguish Drack lacks merit. Although Drack involved prepayment fees in an amount less than $100, DOT raised the same arguments regarding the dangers of voluminous requests as the Department raises in this case. Drack recognized the impact that voluminous requests can have on
6
The Commonwealth Court did note that Section 1307(h) of the RTKL "may" support an agency's delay in processing a request when an agency anticipates fees exceeding $100, but that the RTKL does not otherwise provide for a final response beyond the thirty-day period. Id. 27
agencies, but Drack explained how an agency can avoid the impact of voluminous requests within the confines of the RTKL's response scheme. In Drack, DOT argued "while the clear purpose of Section 1307(h) of the RTKL is to spare an agency from needlessly expending agency resources on a request that is likely to cost more than $100 by ensuring that a requester is willing to pay such costs, the Court should similarly view Section 901 of the RTKL as a measure that the General Assembly adopted in order to enable agencies to obtain from a requester the costs associated with previous requests for which the requester has not paid the agency." Drack, 42 A.3d at 363. The Commonwealth Court responded that the requester's failure to pay the fees related to the prior requests provided DOT with the following options: 1)
2)
refuse to process the request or to deny access to records otherwise available within 5 days until the requester paid for the fees related to the prior requests (under Section 901 of the RTKL); or exercise its right under Section 902(a)(6) to a thirty-day extension to respond finally to [the] request.
Id., 42 A.3d at 363. There is no reason for this Court to establish outside of the RKTL the distinct procedure advocated by the Department where prepayment fees exceed $100. Pursuant to the Court's guidance in Drack, the RTKL provides two permissible ways for the Department to process the Request. First, the Department could have refused to process the request within five business days (under Section 28
901) until the Requester paid the prepayment fees. Second, the Department could have invoked a thirty-day extension (under Section 902(a)(6)) to provide a final response to the Request. This two-part procedure allows agencies to avoid the expense related to the processing of voluminous requests. By timely exercising the first option to seek prepayment, pursuant to Section 901, an agency does not have to process the request; thus it does not have to expend any resources to process a voluminous request. Drack also put agencies on notice that the failure to seek prepayment in a timely fashion precludes the agency from delaying the processing of a request. Id., 42 A.3d at 364, fn. 12, citing Prison Legal News, 992 A.2d at 946 ("When an agency makes access conditional on payment, the response is still a denial"). This Court should affirm the OOR's holding that "[t]he Department's attempt to prolong the response time beyond the thirty days by using an 'interim response' and then reserving the right to make a 'final response' alters the black letter procedural structure of the RTKL and is not permissible." Drack confirmed that a request for prepayment under Section 901 must be made within the five initial business days following a request, and that Section 1307(±) does not permit an agency that invokes an extension under Section 902 to condition the final response upon the receipt of prepayment fees.
29
3.
The Court cannot adopt the procedure employed by the Department below because that procedure will deprive Requester of his right to appeal. In addition to the reasons set forth by the OOR, this Court should affirm the
OOR's final determination because the Requester would have lost his right to appeal had he cooperated with the Department's untimely prepayment demand. The Department's prepayment demand did not express "a reasonable date that a response is expected to be provided" as required by 65 P.S. § 902(b )(2). R. 13a. Rather, it stated "[u]pon receipt of the required prepayment, PDE will provide a response to your request in accordance with the timeframes and procedures under the RTKL." R. 13a. The Department also said "[i]f the estimated fee payment is made, you will have an opportunity to appeal the final agency response if any records are denied or redacted or additional payment is required to fulfill the request and more information on that process will be provided as part of the final response." R. 14a. The Department's statements are inaccurate. First, there are no provisions in the RKTL that set forth timeframes and procedures for an agency to respond to a request outside of the framework established by Sections 901 and 902. A request is deemed denied if an agency fails to send a response within five business days, 65 P.S. § 67.901, or, where an agency invokes a thirty-day extension, if the date
30
that a response is expected to be provided exceeds thirty-days beyond the initial five business day deadline. 65 P.S. § 67.902(b)(2). In this case, the Request was deemed denied because the Department issued the prepayment demand on the date that the thirty-day extension expired. The Department did not ask the Requester to grant an extension to provide a final response.
Thus, regardless of the stated intentions, the Department had no further
legal obligation to provide a "final" response to the request; it could have failed to respond altogether, or it could have responded five years later. Second, since the Department's prepayment notice constituted a deemed denial, the Requester would have lost his appeal rights had he not appealed the deemed denial within 15 business days. 65 P.S. § 67.1 lOl(a)(l); Walker v. Pennsylvania Ins. Dep't, No. 1485 C.D. 2011, 2012 WL 8683307, at *4 (Pa.Cmwlth. June 15, 2012) citing H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa.Cmwlth.2000)("It is well established that failure to timely appeal an administrative agency's action is a jurisdictional defect; consequently, the time for taking an appeal cannot be extended as a matter of grace or mere indulgence.") Thus, even if the Requester promptly paid the prepayment fee, the Requester would almost certainly have no right to appeal (unless the Department provided its final response within 15 business days of the deemed denial).
31
The Court should deny the Department's appeal. The aforementioned provisions of the RTKL establish explicit periods of time by which an agency must respond to a request for access to public records. The Department did not comply with its obligation to request prepayment during the initial five business day period following the receipt of the request, nor with its obligation to issue a final response within the thirty-day extension period. The Department's argument that it could not comply with these statutory deadlines is unsubstantiated.
This Court cannot
endorse the procedure employed by the Department because it will deprive the Requester of his right to appeal. Thus, this Court should affirm the OOR's final determination. B.
The OOR did not err in addressing the arguments and evidence submitted by the Department in support of its position that the records are exempt from public disclosure.
The OOR properly addressed the arguments and evidence that the Department submitted in support of its position that the records are exempt from public disclosure. The appeals officer has wide discretion to rule on procedural matters in a just, fair and expeditious manner. The appeals officer did not abuse his discretion by not issuing an "initial determination" to resolve the prepayment issue, before issuing a final determination on the merits of whether the Department proved the records are exempt from public disclosure. The R TKL requires the appeals officer to issue a final determination within a strict thirty-day deadline. 32
The appeals officer cannot extend the deadline, even where the Department refuses to comply with its statutory duty to process the request. 1.
The appeals officer did not abuse his discretion by not issuing an "interim determination" to resolve the prepayment issue. In cases like the instant appeal, where the appeals officer exercises his or
her discretion to not hold a hearing, the appeals officer "shall rule on procedural matters on the basis of justice, fairness, and the expeditious resolution of the dispute." 65 P.S. § 67.1102(b )(3). 7 Appeals officers have "wide discretion" with respect to procedure to resolve appeals. Bowling, 621 Pa. at 157, 75 A.3d at 467. Section 1102(b )(3) grants appeals officers implied powers to perform certain tasks not expressly set forth in the plain language of the R TKL, such as in camera review, with the goal of resolving appeals in a just, fair and expeditious manner. Com., Office of Open Records v. Ctr. Twp., 95 A.3d 354, 369 (Pa.Cmwlth.2014). Turning to the facts of this appeal, the Department initially sought a finding that the requested records were exempt from public disclosure. R. 33a. The Department subsequently asked the OOR to "bifurcate the issues to allow the OOR to first reach a determination addressing the prepayment question." R. 58a. However, the Department did not affirmatively withdraw its original request for 7
The OOR may adopt procedures relating to RTKL appeals, 65 P .S. § 67 .1102(b ), however, to date, it has not done so. Bowling, 621 Pa. at 178, 75 A.3d at 480. In cases like the instant appeal, where the appeals officer exercises his or her discretion to not hold a hearing, the RKTL expressly provides that I Pa. Code Pt. II (relating to the general rules of administrative practice and procedure) does not apply. 65 P.S. § 67.1102(b)(l). 33
relief including its request for a finding that the requested records were exempt from public disclosure. In fact, the Department continues to argue to this Court that the OOR should have held that the evidence submitted below is sufficient to prove the records are exempt from public disclosure. Department's Brief, pp. 3134. The appeals officer acknowledged the Department had not finished processing the request due to its demand for prepayment. R. 69a. However, the appeals officer noted "the Department, in its response and on appeal, raises various exemptions to disclosure." R. 69a. Thereafter, the appeals officer addressed the arguments and evidence submitted by the Department in support of its position that the records were exempt from public disclosure. Under the facts and circumstances of this case, including the Department's refusal to comply with its statutory obligation to process the request, the appeals officer's decision to address the arguments and evidence presented by the Department was not an abuse of discretion. The Department argues that OOR denied the Department a "full and fair opportunity" to review the records responsive to the Request where there is "a preliminary procedural dispute that requires resolution due to a disagreement on the application of language in the RTKL that has yet to be addressed by the courts." Department's Brief, p. 29. PSU adds that the Final Determination should 34
be reversed, pursuant to this Court's decision in Prison Legal News, because the Department has not had the opportunity to perform its "mandatory" duty under Section 901 of the RTKL to determine whether the responsive records are public records. PSU's brief, p. 23. The Department and PSU' s arguments lack merit and are disingenuous. The R TKL, as confirmed in Drack, requires an agency to request prepayment within the five business days following the receipt of a request, and does not permit an agency that invokes a thirty-day extension to reserve the right to issue a final response outside of the thirty-day extension period. PSU is correct that Prison Legal News held that the OOR erred in requiring the Department of Corrections (DOC) to release public records prior to determining the records were exempt from public disclosure. Prison Legal News v. Office of Open Records, 992 A.2d 942, 949 (Pa.Cmwlth.2010). However, the court did so in the context of the facts before it. In Prison Legal News, it appears that DOC timely requested prepayment within the five business day deadline under Section 901. 8
To the extent there was any doubt regarding the scope of the
Prison Legal News holding, Drack confirmed that an agency may only delay the processing a request if the agency makes a timely request for prepayment. 8
Although the opinion does not discuss the date of the request or the date of the agency's response, the Final Determination sets forth that the request was mailed on February 6, 2009, and that the DOC requested prepayment on February 17, 2009. See Appendix "A", p. 2. Neither the Final Determination nor the Commonwealth Court's opinion state that DOC requested an extension under Section 902. 35
Drack rejected the argument that "an agency has the right to condition its final response on the payment of fees." Id., 42 A.3d at 362. Drack reviewed precedent that establishes that an agency may withhold access to requested records if a requester does not pay the prepayment fee. Id. (emphasis original)( citing Indiana University of Pennsylvania v. Loomis, 23 A.3d 1126 (Pa.Cmwlth. 2011)9 and Prison Legal News). The Commonwealth Court rejected the conditional response argument because "[n]either Loomis nor Prison Legal News support the proposition that an agency's response under Section 903 of the RTKL that includes a demand for pre-payment permits an agency to defer identification of the other substantive grounds upon which an agency proposes to deny a requester access to requested records." Drack, 42 A.3d at 363. In light ofDrack's clarification of the Prison Legal News holding, PSU's argument that Prison Legal News requires the OOR to suspend proceedings until the Department complies with its mandatory duty to process the request lacks merit. Furthermore, the Department and PSU' s arguments are disingenuous because the OOR did not prevent the proper processing of the request. The Department chose to issue an "interim" denial letter outside of the extension
9
In Loomis, the agency issued a final response, including reasons why certain information was redacted, and demanded payment for duplication fees. Id., 23 A.3d at 1127. The requester did not retrieve the documents or pay the duplication fee, but, rather filed an appeal to the OOR challenging the redactions. Id. The Commonwealth Court held the requester's failure to pay the fee precluded his access to the records, and that his appeal to OOR should have been summarily denied. Id., 23 A.3d at 1128. 36
scheme set forth in the R TKL and as prohibited by Drack. PSU received notice and had the opportunity to be heard, yet it sat by idly while the Department refused to comply with its statutory duty to process the request. Although PSU initially alleged that it did not have the opportunity to review the documents, R.49a, it was suddenly able to identify documents and submit evidence in support of its position after the issuance of the final determination. R. 89a; 91a.
2.
The OOR does not have power to bifurcate RTKL proceedings. In addition, the OOR did not have the power to institute the relief sought by
the Department. The Department asked the OOR to bifurcate the proceedings. R. 58. Department explains on appeal that "OOR should have remanded to PDE with direction that a complete final response, citing all applicable exemptions under the RTKL, be provided in the specified time." Department's Brief, p. 30. The OOR did not err by not granting the Department's request for bifurcation because the RTKL does not permit the OOR to suspend RTKL proceedings. The RTKL establishes a strict thirty-day deadline for the disposition of OOR proceedings. "The appeals officer must issue a final determination on the matter within 30 days, and provide a written explanation of the reason for the decision." Bowling, 621 Pa. at 142, 75 A.3d at 457, citing 65 P.S. § 67.1 lOl(b)(l). "However, if the appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied." Id., citing 65 P.S. § 67.1101(b)(2). The "statutory
37
deadline imposed on OOR to issue a final determination is essential to the statutory purpose of the RTKL." State Employees' Ret. Sys. v. Pennsylvanians for Union Reform, No. 207 C.D. 2014, 2015 WL 1259522, at *7 (Pa.Cmwlth.Mar.20,2015). Although the appeals officer has wide discretion to resolve procedural issues in a just, fair, and expeditious manner, the OOR loses jurisdiction to make any further rulings, procedural or otherwise, at the expiration of the thirty-day deadline to issue a final determination, unless the requester grants an extension, because an appeal is deemed denied if the appeals officer does not issue a final determination within 30 days of the receipt of the appeal. See 65 P.S. § 1101(b)(2); Walkerv. Pennsylvania Ins. Dep't, No. 1485 C.D. 2011, 2012 WL 8683307, at *4 (Pa.Cmwlth. June 15, 2012)(unpublished memorandum op.) Furthermore, just as the Requester would lose his right to appeal if the Department were permitted to issue an "interim" denial, the Requester would lose his right to appeal if the OOR bifurcated the proceedings. Section 1301 of the R TKL requires a requester to file a petition for review with the appropriate court within 30 days of the date a request for access is deemed denied. 65 P.S. §§ 67.1301(a), and, the Commonwealth Court lacks jurisdiction to entertain an appeal that is untimely under Section 1301(a). See Guarrasi v. Scott, 25 A.3d 394, 405,
fn. 10 (Pa.Cmwlth. 2011).
38
The appeals officer's decision to not issue an "interim" determination to resolve the prepayment issue should be affirmed. There is no merit to the Department's position that it was justified in delaying the processing of the request. There is no merit in PSU' s position that the OOR had to suspend the proceedings because of the Department's refusal to process the request. The Department and PSU's arguments that the OOR prevented them from presenting their cases are disingenuous. The appeals officer did not have the power to bifurcate the OOR proceedings. C.
The Department failed to prove the requested records are exempt from public disclosure.
OOR addressed each exemption for which the Department asserted argument and evidence. OOR held that the Department failed to prove any exemptions apply (excepting home, cellular, or personal telephone numbers and personal email addresses, including work-issued telephone number and e-mail addresses; and names and home addresses of minors). R. 69a-78a. This Court should affirm the OOR's Final Determination because the majority of the exemptions asserted by the Department are not applicable as a matter of law to the requested records, and, even where the exemptions may be applicable, the Department failed to prove the requested records meet such exemptions. 1.
The deliberations of the members of the PSU BOT, on behalf of PSU, a non-agency, are not exempt from public disclosure under the 39
predecisional deliberation exception to the RTKL, 65 P.S. § 67. 708(b)(1 O)(i)(A). This Court should affirm the OOR' s holding that any communications to or from PSU board members or employees are not exempt as a matter of law under the predecisional deliberation exception because the communications were shared with PSU, an entity that is not an agency under the RTKL. R. 70a. The OOR's interpretation of the predecisional deliberation exception is supported by the plain language of the RTKL and is consistent with Supreme Court's interpretation of the common-law deliberative process privilege, which prevents the public disclosure of deliberations of law and policy. The plain language of the predecisional deliberation exception is limited to protect records that reflect: "[t]he internal, predecisional deliberations of an
agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of
another agency" 65 P.S. § 67.708(b)(10)(i)(A)(emphasis supplied). The predecisional deliberation exception codifies the deliberative process privilege. Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa.Cmwlth.2013). Although the privilege was never specifically adopted under the prior versions of the RTKL, the Supreme Court recognized that deliberative documents should not be subject to public scrutiny as they would stifle and inhibit the exchange of ideas
40
within the agency. La Valle v. Office of General Counsel, 564 Pa. 482, 497, 769 A.2d 449, 457-58 (2001). The deliberative process privilege permits the government to withhold documents containing confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice. Commonwealth v. Vartan, 557 Pa. 390, 399, 733 A.2d 1258, 1263 (Pa.1999)(emphasis added). The Supreme Court stated further: For the deliberative process privilege to apply, certain requirements must be met. First, the communication must have been made before the deliberative process was completed. Secondly, the communication must be deliberative in character. It must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Information that is purely factual, even if decision-makers used it in their deliberations is usually not protected. Tribune-Review Pub. Co. v. Dep't of Comm. and Econ. Development, 580 Pa. 80, 92-93, 859 A.2d 1261, 1269, (2004) citing Vartan, 733 A.2d at 1263-1264 (internal quotations and citations omitted)( emphasis added). Since PSU is not an agency as defined by the RKTL, and since PSU does not deliberate law or policy, it does not enjoy the protections of the predecisional deliberation exception, even though government officials serve on the BOT. Thus, this Court should affirm the OOR' s holding that any communications to or from PSU board members or employees were not exempt as a matter of law under the predecisional deliberation exception. 41
2.
The Department has not submitted sufficient evidence to prove the identified records are exempt from public disclosure under the predecisional deliberation exception to the RTKL.
This Court should affirm the OOR' s holding that any communications between Secretary Tomalis and Commonwealth agencies were not exempt under the predecisional deliberation exception because Secretary Tomalis's affidavit merely stated that the records constitute "discussions and deliberations" and that such conclusory statements were insufficient prove that the communications were deliberative in nature. R. 71a. In order to show that a communication reflects or shows the deliberative process, an agency must "submit evidence of specific facts showing how the information relates to deliberation of a particular decision." Carey v. Pennsylvania Dep't of Corr., 61 A.3d 367, 379 (Pa.Cwlth. 2013) supplemented, No. 1348 C.D. 2012, 2013 WL 3357733 (Pa.Cmwlth. July 3, 2013). An adequate description of responsive records is crucial to demonstrate why the record is exempt from public disclosure. Id., 61 A.3d at 377. Generic determinations or conclusory statements are not sufficient to justify the exemption of public records. Office of Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa.Cmwlth.2013) supplemented, 1348 C.D. 2012, 2013 WL 3357733 (Pa.Cmwlth. July 3, 2013). Furthermore, "purely factual material is severable and, in general, should be disclosed even when it is located within a document containing exempted 42
predecisional deliberations." McGowan v. Pennsylvania Dep't ofEnvtl. Prot., 103 A.3d 374, 386 (Pa.Cmwlth.2014), reargument denied (Dec. 19, 2014). Purely factual material may only be withheld from public disclosure where "disclosure would so expose the deliberative process within an agency that it must be deemed exempted;" or, in other words, when disclosure of the factual material "would be tantamount to the publication of the [agency's] evaluation and analysis." Id., 103 A.3d at 387. This Court should defer to the OOR's finding that Secretary Tomalis's affidavit is insufficient to prove the communications at issue are deliberative in nature. !&Yy, 94 A.3d at 441-42. Secretary Tomalis' affidavit does identify which responsive records contain deliberative discussions. R. 40a. Nor does it identify any "particular decision" which is being deliberated. Id. Also, the Department has not released the purely factual information while redacting the purportedly privileged information.
Thus, the OOR' s holding that the
Department has failed to prove the requested records are exempt under the predecisional deliberation exception should be affirmed. 3.
PSU's investigative materials are not exempt under the noncriminal investigation exception to the RTKL, 65 P.S. § 67.708(b)(17).
This Court should affirm the OOR' s holding that the requested records are not exempt under the noncriminal investigation exception as a matter of law
43
because any investigation conducted by PSU was not conducted by an agency pursuant to the agency's official duties. R. 75a-76a. The noncriminal investigation exception to the RTKL, 65 P.S. § 708(b)(l 7), precludes disclosure of materials related to noncriminal investigations conducted by an agency acting within its "official duties" (i.e. the agency's legislativelygranted fact-finding and investigative powers). Johnson v. Pennsylvania Convention Ctr. Auth., 49 A.3d 920, 925 (Pa.Cmwlth.2012). An official probe only applies to "noncriminal investigations conducted by an agency acting within its legislatively granted fact-finding and investigative powers." Dep't of Pub. Welfare v. Chawaga, 91 A.3d 257, 259 (Pa.Cmwlth.2014) citing Johnson, 49 A.3d at 925. The noncriminal investigation exception simply does not apply to information related to elective investigation by a non-agency (PSU), which holds no legislatively granted fact-finding and investigative powers and which has no duty to perform such an investigation, even where such information has been disclosed to an agency, the Department, because the Department was not conducting its own investigation pursuant to its official duties or its legislatively granted fact-finding and investigative powers. Since PSU is not an agency, and because there is no evidence of an official investigation by PSU or the Department,
44
this Court must affirm the OOR' s holding that noncriminal investigation does not apply to PSU' s investigative materials. 4.
The Department failed to show the requested records are exempt under attorney-client privilege or the work-product doctrine.
This Court should affirm the OOR' s holding that the Department failed to show any of the requested records were exempt under the attorney-client privilege or the work-product doctrine because Secretary Tomalis's attestations merely parroted the language of the elements of the attorney-client privilege and attorney work-product doctrine. 74a.-75a. Records that are subject to the attorney-client privilege or the work-product doctrine are exempt from public disclosure. See Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409, 414 (Pa.Cmwlth.2014), reargument denied (Dec. 18, 2014). The burden of proving the privilege rests with the party asserting it. Id. Neither privilege protects mere facts. Id., 103 A.3d at 415. The Department asserts the attorney-client privilege and the work-product doctrine for communications between Secretary Tomalis and the Office of the General Counsel. R. 38a-39a. The Department also asserts the attorney-client privilege and the work-product doctrine on behalf of PSU and attorneys that Department purports were hired by PSU to provide legal counsel to PSU. R. 38a-
45
39a. 10 Requester objects to the Department's assertion of the attorney-client privilege on behalf of PSU or attorneys that purportedly provide legal counsel to PSU. This Court should defer to the OOR's finding that Secretary Tomalis' affidavit is insufficient to prove the communications are exempt under the attorney-client privilege or the work-product doctrine. Levy, 94 A.3d at 441-42. Secretary Tomalis does not identify which responsive records contain attorneyclient communications or work-product. R. 38a-40a. Secretary Tomalis's attestations merely parrot the language of the elements of the attorney-client privilege and attorney work-product doctrine. Id. Also, the Department has not disclosed purely factual information while redacting the purportedly privileged information. Thus, Secretary Tomalis's affidavit is not sufficient to prove the records are exempt. See Scolforo, 65 A.3d at 1103. 5.
The Department failed to show that the disclosure of the home addresses in the requested records would jeopardize an individual's personal security.
This Court should affirm the OOR' s holding that the Department failed to prove the disclosure of home addresses would jeopardize anyone's personal security. R. 77a-78a. An agency may only withhold non-exempt home addresses from public disclosure if such disclosure will be reasonably likely to result in a 10
PSU did not assert any exemptions from public disclosure prior to the close of the record, and Requester argues later in this brief that PSU waived any objection to public disclosure. 46
substantial and demonstrable risk of physical harm to the personal security of an individual. Office of the Lieutenant Governor v. Mohn, 67 A.3d 123, 131 (Pa. Cmwlth. 2013 )( en bane). The Department did not submit any evidence in regards to this exemption. R. 3 7 a-40a.
D.
This Court lacks jurisdiction over PSU's direct appeal from the final determination of the OOR because PSU, as a person who purports to have a direct interest in the records subject to the RTKL proceedings, has no right to appeal. This Court must quash PSU's Petition for Review docketed at 1729 C.D.
2014 because a person with a direct interest in records that are subject to RTKL proceedings has no right to appeal. PSU, as a person who purports to have a direct interest in the records subject to the RTKL appeal, does not have a right to appeal the OOR's final determination to the Commonwealth Court. PSU may be permitted to participate as an intervenor in the Department's appeal docketed at 1617 C.D. 2014. If PSU is denied intervention, or if PSU's status as an intervenor provides an inadequate remedy, PSU has the ability to seek further relief in the original jurisdiction of the Commonwealth Court.
1.
A person with a direct interest in records that are subject to RTKL proceedings has no right to appeal an adverse final determination of the OOR to the Commonwealth Court. The R TKL grants a "requester" or an "agency" the right to appeal from a
final determination by the OOR. 65 P.S. §§ 67.130l(a), 67.1302(a). Both the Commonwealth Court and the Supreme Court have recognized that the RTKL 47
provides no right of appeal to a person with a direct interest in records subject to RTKL proceedings. Allegheny Cnty. Admin. Servs. v. A. Second Chance, Inc., 13 A.3d 1025, 1032 (Pa.Cmwlth. 20ll)(en banc)(non-party to OOR proceedings had no statutory right to appeal); Pennsylvania State Educ. of Ass'n ex rel. Wilson v. Com., Dep't of Cmty. & Econ. Dev. (PSEA II), 616 Pa. 491, 508-09, 50 A.3d 1263, 1274-75 (2012)(RTKL does not make public school teachers whose home addresses are subject to disclosure under the RTKL parties to the request or the ensuing appeal process); Pennsylvania State Educ. Ass'n ex rel. Wilson v. Com. (PSEA III), No. 396 M.D. 2009, 2015 WL 652253, at *6 (Pa.Cmwlth. Feb. 17, 2015)("A person with a direct interest neither has a right to appeal to the OOR nor the right to intervene in the requester's appeal."). 11 The Pennsylvania Constitution provides no right to appeal from an adverse final determination of the OOR to a person with a direct interest in records subject to RTKL proceedings. Article V, Section 9 of the Pennsylvania Constitution does not apply to agency actions that are not "adjudications" or decisions that are not judicial in nature. Wheeler v. Pennsylvania Bd. of Prob. & Parole, 862 A.2d 127, 129 (Pa.Cmwlth.2004). The Supreme Court has determined that final determinations of the OOR are not "adjudications" under Chapter 5 of Title 2 of 11
PSEA III ordered the OOR to permit public school employees to intervene, as ofright, in appeals from the denial of a RTKL request for their home addresses, or to appeal as an aggrieved party from a grant by a public school district of such requests. PSEA III' s holding provides no right of appeal to PSU here because PSU is not a public school teacher whose home address is subject to disclosure. 48
the Administrative Agency Law. Bowling v. Office of Open Records, 621 Pa. 133, 163, 75 A.3d 453, 471 (2013). The Commonwealth Court has quashed a non-party participant's direct appeal from an adverse determination of the OOR. Pennsylvania State Education Association v. Pennsylvanians for Union Reform (PSEA v. PFUR), No. 310 C.D. 2014 (Memorandum and Order dated August 22, 2014, pp. 3-4)(Brobson, J.)(single j. op.)(attached hereto as Appendix "B"). 2.
PSU has a remedy to seek to intervene in the Department's appeal or to seek relief in this Court's original jurisdiction.
PSU is not without remedy. First, PSU may be able to intervene by allowance in the Department's appeal docketed at 1617 C.D. 2014. Second, PSU can seek relief in this Court's original jurisdiction. Although the plain language of Pa. R.A.P. 1531(a) limits the right to intervene in administrative appeals to the parties to the administrative proceedings 12, this Court has exercised discretion to permit non-parties to RTKL appeals to intervene by allowance. PSEA v. PFUR, pp. 4-6; also see Allegheny Cnty. Dep't of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1033
12
A non-party participant to an administrative proceeding does not have a right to intervene in an appeal by a party. The current version of Pa.R.A.P. 1531(a) allows "a party" to an administrative proceeding to intervene as ofright in appellate proceedings. The prior version of Pa.R.A.P. 1531 allowed non-parties to seek intervention in appellate proceedings by allowance. See Roetenberg v. Corn., Office of Budget, 121 Pa.Crnwlth. 97, 550 A.2d 825, 830 (1988). The subdivision of Rule 1531 that permitted intervention by non-parties by allowance was amended in 2004 to apply only to original jurisdiction matters. 49
(Pa.Cmwlth. 2011 )(in the absence of authority governing the process of intervention in an appeal from a final determination by the OOR to court of common pleas, court of common pleas has discretion to rule on application for intervention by non-party). Even if intervention is denied or is inadequate to fully protect PSU' s purported interests, PSU can seek relief in the original jurisdiction of this Court. Since the RTKL does not provide persons who purport to have a direct interest in records subject to RTKL proceedings "with a reliable administrative or judicial method by which to seek redress for action that they believe violates the statutory scheme and/or their constitutional rights" the Supreme Court has held that "it is just and proper for the OOR to be haled into court to address core and colorable issues connected with such treatment at the behest of affected persons and their associations." Pennsylvania State Educ. of Ass'n ex rel. Wilson v. Com., Dep't ofCmty. & Econ. Dev., 616 Pa. 491, 510, 50 A.3d 1263, 1275-76 (2012). There is no distinction between PSU' s attempt to pursue a direct appeal in this matter and PSEA's attempt to pursue a direct appeal in the PSEA v. PFUR matter. As an individual who purportedly has a direct interest in the public records of the Department, PSU is relegated to seek relief as an intervenor in the Department's appeal or to seek relief in this Court's original jurisdiction. Thus, Requester respectfully asks this Court to quash PSU's petition for review.
so
E.
The Commonwealth Court should quash PSU's notice of intervention and deem PSU's objections to disclosure waived because PSU failed to present any evidence prior to the close of the evidentiary record to support its assertion that the requested records are exempt from public disclosure. The Commonwealth Court should quash PSU's notice of intervention
because PSU cannot show that it was aggrieved by the OOR's final determination. PSU did not present any evidence prior to the close of the evidentiary record to show that the requested records are exempt from public disclosure. This Court has held that all challenges to public disclosure must be raised prior to the close of the evidentiary record. PSU's assertion that it could not identify responsive records prior to the close of the evidentiary record is disingenuous because PSU was able to identify responsive records in its request for reconsideration. Thus, PSU' s notice of intervention should be quashed and PSU's objections to disclosure should be deemed waived. For the reasons set forth in the previous section of this brief, the Court should deem PSU' s notice of intervention to be a petition for intervention by allowance. In the absence of a developed test for discretionary intervention by allowance, this Court may find guidance in the test developed for standing of nonparties to administrative proceedings who have the statutory right to appeal. Where a non-party to an administrative proceeding has a statutory right to appeal, the non-party lacks standing to appeal from the administrative proceeding unless it 51
has been aggrieved by the agency's determination. Capital BlueCross v. Pennsylvania Ins. Dep't, 937 A.2d 552, 566 (Pa.Cmwlth. 2007). In order to be 'aggrieved' the non-party must have a substantial, direct, and immediate interest in the subject matter of the litigation. Id. An allegation of potential harm does not give rise to standing to bring a lawsuit. Pennsylvania State Lodge, Fraternal Order of Police v. Commonwealth, Dep't of Conservation and Natural Resources, 909 A.2d 413, 417 (Pa. Cmwlth. 2006). PSU received timely notice of the Requester's appeal and promptly sought to participate below. R. 19a-22a. The appeals officer initially permitted PSU to make a submission no later than July 3, 2014, and later permitted PSU until July 16, 2014, to provide "rebuttal argument" R. 44a; R. 5la. PSU did not argue that any records were exempt or submit any evidence to prove any records were exempt before the July 3 or July 16 deadlines. Instead, PSU asserted "some of the records subject to this appeal are likely protected from disclosure." R. 47a. PSU alleged it had not had "an opportunity to determine and review the specific documents that may be at issue prior to filing this submission" and PSU "does not have information regarding the documents at issue that is necessary to put forth evidence demonstrating an exception to disclosure under the RTKL." R. 49a. PSU decided to passively wait until "the Department of Education complete[s] the process of identifying those documents responsive to 52
Mr. Bagwell's request that may be protected by privilege or statutory exception." R. 61a. After the issuance of the Final Determination, in its petition for reconsideration, PSU was suddenly able to identify four emails responsive to the Request that were allegedly protected by the attorney-client privilege and/or the work-product doctrine, and to produce a supporting affidavit. R. 89a; R. 91a. The OOR did not reopen the record or otherwise allow Requester to submit any response to the newly raised arguments and evidence in PSU' s petition for reconsideration. PSU concedes that appellate courts will not review arguments and submissions raised for the first time below in a request for reconsideration. PSU Brief, p. 35, n. 6, citing Commonwealth v. Washington, 927 A.2d 586, 601 (Pa.2007). Yet, PSU argues that the Supreme Court's decision in Levy v. Senate of Pennsylvania (Levy II), 65 A.3d 361, 364 (Pa.2013) obligates this Court to consider the materials presented by PSU in its petition for reconsideration. Id. PSU argument lacks arguable merit. The Supreme Court has not held that waiver is never appropriate in public records proceedings.
On remand in Levy III, the Commonwealth Court noted:
the [Supreme] Court was careful not to totally reject waiver in RTKL proceedings. In fact, the Court applied waiver to reject a challenge to the in camera review process that was not first raised in the 53
Commonwealth Court. Levy [II], 65 A.3d at 366 n. 4. Thus, waiver may still be applied to RTKL cases where appropriate. Id., 94 A.3d at 441. Thereafter, the Commonwealth Court held "an agency must raise all its challenges before the fact-finder closes the record." Id. This allows for efficient receipt of evidence from which facts may be found to resolve the challenges. Id. In the ordinary course ofRTKL proceedings, this occurs at the appeals officer stage. Id., 94 A.3d at 441. This is the appropriate case to apply the Levy III waiver rule.
PSU had the
opportunity and did participate in the OOR proceedings below. PSU' s argument that it could not identify responsive records or grounds for exemptions is disingenuous in light of PSU's sudden ability to do so in its request for reconsideration. There is nothing in the record to suggest that PSU was anything but a willing participant in the Department's gambit. PSU was aware of the Department's obligation to comply with the RTKL, and the OOR's strict deadline for resolving the appeal. Thus, this Court should hold that PSU has waived any objection to the disclosure of the requested records. PSU voluntarily chose to not introduce any argument or evidence in support of its position that the requested records are exempt from public disclosure prior to the close of the administrative record. In the absence of such evidence, PSU cannot show that it has been aggrieved by the OOR's final determination, and its notice to intervene should be quashed. 54
F.
The Court should award attorneys fees to Requester. The Court should award attorneys fees to Requester because: (i) the
Department's issuance of an "interim" denial letter constitutes an act of bad faith, (ii) the Department argues frivolously on appeal that the requested records are exempt from public disclosure even though it has not reviewed the records, and (iii) PSU has intervened and pursued a direct appeal even though it did not submit any evidence prior to the close of the evidentiary record to prove the requested records are exempt from public disclosure. Section 1304 of the RTKL permits a Chapter 13 court to award costs and attorneys' fees, and to impose sanctions, after the court, not the appeals officer, makes relevant factual findings and legal conclusions. Bowling, 75 A.3d at 476. A court may award reasonable attorneys fees and costs of litigation to a requester if: (i) the agency acts in bad faith under the provisions of the RKTL, 65 P.S. § 1304(a)(l), (ii) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law, 65 P.S. § 1304(a)(2), or (iii) if the court finds the legal challenge (i.e. the appeal) under the RTKL was frivolous. 65 P.S. § 1304(b ). Even if this Court finds that the Department or PSU cannot be held liable under Sections 1304(a) or 1304(b) of the RTKL, the Requester is entitled to receive reimbursement for reasonable
55
attorneys fees under 42 Pa.C.S.A. § 2503 because the conduct described below constitutes bad faith.
1.
The Court should award attorneys fees to Requester because the Department issued an "interim" denial letter. The Department's issuance of an "interim" denial letter is not supported by a
reasonable interpretation of the law. Drack rejected the argument that "an agency has the right to condition its final response on the payment of fees." Id., 42 A.3d at 362. Thus, the Department's issuance of an "interim" denial letter constitutes an act of bad faith entitling the Requester to an award of attorneys fees pursuant to 65 P.S. § 67.1304(a)(l).
Additionally, the Department's appeal to this Court
regarding this issue constitutes a frivolous appeal entitling the Requester to an award of attorneys fees pursuant to 65 P.S. § 67.1304(b).
SeeHewittv.
Com.,
116 Pa.Cmwlth. 413, 417, 541 A.2d 1183, 1185 (1988)(finding appeal to be frivolous and awarding attorneys fees where issue on appeal was well settled and appellant failed to show how prior precedent did not control), petition for allowance of appeal denied, 520 Pa. 620, 554 A.2d 511 (1989).
2.
The Court should award attorneys fees to the Requester because the Department argues on appeal that the requested records are exempt from public disclosure even though it has not reviewed the records. The Department argues on appeal that it "met its burden to establish by a
preponderance of the evidence that records and information are exempt from access under the RKTL." Department's Brief, p. 31. The Department's argument 56
is frivolous because the Department conceded below that the records "may" be exempt from public disclosure, R. 28a, and asked the OOR for a finding that the Department adequately cited and preserved certain statutory exceptions. R. 60a. Thus, the Department's appeal to this Court regarding this issue constitutes a frivolous appeal entitling the Requester to an award of attorneys fees pursuant to 65 P.S. § 67.1304(b).
3.
The Court should award attorneys fees to Requester because PSU has intervened and pursued a direct appeal where it did not submit any evidence prior to the close of the evidentiary record to prove the requested records are exempt from public disclosure. By intervening in the OOR proceedings and seeking to bar the Department
from disclosing public records, PSU has stepped into the shoes of the Department for the purposes of prosecuting this appeal. See Allegheny Cnty. Dep't of Admin. Servs. v. Parsons, 61 A.3d 336, 342 (Pa.Cmwlth.2013) appeal denied, 72 A.3d 604 (Pa.2013)(Third-party contractors in possession of requested records are placed in the shoes of a local agency for purposes of the burden of proof). Thus, it may be held liable under Sections 1304 of the RTKL if, during the course of the litigation, PSU asserted frivolous arguments or otherwise acted in bad faith. PSU's intervention and appeal are frivolous and pursued in bad faith because PSU did not present any evidence prior to the close of the evidentiary record to prove the requested records are exempt from public disclosure. Thus, PSU does
57
not have standing to appeal or to intervene and there is no basis for which to overturn the OOR' s final determination.
VII.
CONCLUSION WITH REQUESTED RELIEF
Wherefore, Respondent Ryan Bagwell respectfully requests that this Honorable Court issue an Order: (i) affirming the final determination of the Office of Open Records, dated August 12, 2014; (ii) quashing the direct appeal filed by the Pennsylvania State University at Docket No. 1729 C.D. 2014; (iii) quashing the notice of intervention filed by the Pennsylvania State University at Docket No. 1617 C.D. 2014; (iv) awarding costs and reasonable attorneys fees to Respondent; and (v) such other relief deemed appropriate by the Court. Respectfully submitted, NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
27
Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967
200 North Third Street, 18th Floor P. 0. Box 840 Harrisburg, PA 17108-0840 Counsel for Ryan Bagwell, Respondent Date: April 10, 2015 58
Appendix "A"
Wright v. Department of Corrections, Docket No. AP 2009-0174 (Office of Open Records April 13, 2009) Final Determination
pennsylvania OrFICE
Of OPUJ
llECOfH)S
FINAL DETERMINATION
IN THE MATTER OF: PAUL WRIGHT, Complainant
v.
Docket No: AP 2009-0174
DEPARTMENT OF CORRECTIONS, Respondent INTRODUCTION
Mr. Paul Wright, on behalf of Prison Legal News, filed a right-to-know request with the Department of Corrections ("DOC"), pursuant to the Right to Know Law ("RTKL"), 65 P.S. §67.101, et. seq,.
Mr. Wright sought details about claims and
settlements in the amount of $1,000 or greater for the period of January 1, 2001 through December 31, 2008.
The DOC granted Mr. Wright's RTK request, and required
prepayment as the cost of copies exceeded $100.00. Mr. Wright objected to the cost and timely appealed to the Office of Open Records ("OOR"). For the reasons set forth below, the appeal is granted in part and denied in part.
1
FACTUALBACKGROUND On February 6, 2009, Mr. Wright mailed a RTK request to the DOC seeking the following: Public records containing details about any claims, settlements or verdicts against State of Pennsylvania for $1000.00 or more involving the Department of Corrections (DOC), its employees or agents, or any of its facilities. For each payment made, please include a copy of the tort claim or complaint, or any other document that discloses the facts underlying the incident leading to the settlement or verdict. Also, include any settlement agreement, general release, verdict or court order obligating the county to pay the claimant or plaintiff. Finally, please include a copy of the check paid to the claimant or plaintiff. The time period for the above request is from January 1, 2001 through December 31, 2008. Mr. Wright requested the DOC to provide the documents electronically and requested a waiver of fees "as the information being sought will further the advancement of public understanding of DOC operations. Prison Legal News is a non-profit media entity reporting on criminal justice news and issues. Andrew Filkosky, Agency Open Records Officer for the DOC responded on February 17, 2009 who stated as follows: Your request requires prepayment in order to be processed. The Department requires prepayment before providing access when the estimated cost to fulfill a request exceeds $100. 65 P.S. §67.1307(h). DOC estimated cost of fulfilling your request is $8,750.00 ($.25 per page). Mr. Filkosky stated that upon payment, the DOC would process the request further and either bill him for the difference if the actual amount exceeded the estimate or refund him if the opposite were true. On February 20, 2009, Mr. Wright wrote to Mr. Filkosky again asking that he reconsider the requirement of prepayment in light of Prison Legal News v. Lappin, 436 F .Supp. 2d 17 (D.D.C. 2006). He states that his request for production in an electronic
2
format was not addressed and would reduce the quoted cost. Finally, he asked that DOC prepare a spreadsheet listing all claims and verdicts paid during the time period in his request "so that I may further narrow my request for documents." Mr. Filkosky responded on February 27, 2009 and stated that the requested records do not exist in electronic format and cited language in the RTKL that relieves agencies of any responsibility to create records, 65 P.S. §67.705. The response was the same for the requested spreadsheet as it is not a record the DOC maintains. Mr. Wright's request for a fee waiver was denied. Mr. Wright timely appealed to the OOR. He challenges the estimate, although this is based only upon his belief that the records could not be as voluminous as the DOC reported. He argues that the cost is not reasonable as required by the RTKL, that he should receive a waiver of fees and cites the RTKL stating that records should be provided in the medium requested "if the public record exists in that medium." He further states that Mr. Filkosky did not allow for any alternative means of converting the records into electronic format "such as sending a representative of PLN to the location where the records are kept to identify the records responsive to our request for copying or we could bring our own portable scanner if need be." Theron R. Perez, Esquire, Assistant Counsel to the DOC responded to the appeal on behalf of DOC. She argues that the request for prepayment was proper in accordance with section 67.1307 which "allows agencies to assess an estimated prepayment charge if the fees are expected to exceed $100 ... This spares agencies from the burden of compiling actual documents pursuant to a voluminous request only to have the requester
3
withdraw the request once they realize the expense." In response to Mr. Wright's challenge regarding the estimate, she writes: " ... the Department litigates in a variety of forums on a variety of issues including different types of employment claims, inmate claims, contract claims and administrative compliance issues. Without individually reviewing each case, it is impossible to know the actual number of pages for each complaint and settlement agreement or judgment. Nonetheless, it is conservatively estimated that the Department must pay $1000.00 or more as a result of a settlement agreement, judicial decree or order on approximately 175 cases per year. Mr. Wright has requested that the Department produce the settlement agreement or judicial determination, the complaint and the cancelled check for any such case over a period of 8 years. On its face, the request ostensibly implicates 1400 cases ... the Agency Open Records Officer consulted with appropriate staff to provide a good faith estimate in this matter. It is estimated that the settlement agreements are generally about 10 pages in length. Complaints for each case are estimated to be an average of about 15 pages each. Accordingly, it is estimated that each case would encompass about 25 pages of material. By plugging in these numbers, the Department estimated that Mr. Wright's request implicates about 35,000 pages of material (8 years X 175 cases X 25 pages= 35,000). This does not even take into account the request for the cancelled check." Ms. Perez reports that she discovered after receiving this appeal that cancelled checks are not in the possession of the DOC and reside in the Department of Treasury and provides information on where to submit a request. The DOC states that, in addition to the fees quoted above, there is an estimated cost of $6636.00 for the DOC to be able to access the files from its third-party contracted archive vendor and handling charges of $1044. In support thereof, she submitted a pricing schedule from Iron Mountain, a storage company. This was raised for the first time in response to Mr. Wright's appeal and never mentioned until he proposed bringing a copier to perform his own duplication of records. Regarding the fee waiver, the DOC argues that there is no obligation to do so and the RTKL allows agencies discretion. Perez affirms Mr. Filkosky's statement that the records requested are not available in electronic format.
4
The DOC is amenable to Mr. Wright's suggestion of sending a representative to identify responsive records and use of a private copier or scanner, but points out that it could take weeks. It proposes the following: "If Mr. Wright is willing to commit in writing to this undertaking, the Department asks for thirty days to compile responsive records, as well as for the provision of archival fees ... "
LEGAL ANALYSIS
Pursuant to section 67.503(a), the OOR is authorized to hear appeals for all Commonwealth and local agencies. 65 P.S. §67.503(a). The DOC is a Commonwealth agency subject to the RTKL, 65 P.S. §67.301. There is no argument regarding the status of the records requested as public records. 1. The DOC is not Required to Waive Copying Costs Mr. Wright cited a federal case interpreting the Freedom of Information Act ("FOIA") as the basis for his contention that the DOC should waive copy fees. However, FOIA has language quite different from the RTKL:
"Documents shall be furnished
without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester," 5 USCS § 552(4)(a)(iii) (emphasis added).
The RTKL is permissive: "[a]n agency may waive the fees for
duplication of a record ... , 65 P.S. 67.1307(±) (emphasis added). In Prison Legal News v. Lappin, 436 F.Supp. 2d 17 (D.D.C. 2006), cited by Mr. Wright, the Court considered only the language of FOIA, which is inapplicable here.
5
2.
Twenty-five Cents Per Page is Reasonable
The DOC has established the number, type and volume of claims, litigation and settlements that it estimates are responsive to Mr. Wright's request. It charges $.25 per page, as established by the OOR in its published fee schedule. Mr. Wright's issue with the estimate is the number of pages and not the per page charge, although he does seek waiver of costs as set forth above. The estimate provided by DOC is reasonable given the number of cases it processes each year and the typical length of the documents requested. 3. Records not Available Electronically are not Required to be Converted The DOC contends that " ... the records encompassed by Mr. Wright's request are archived in paper format .... If, in the course of processing this request, any responsive documents are found in an electronic format, they will be produced in accordance with the requester's preference.
However, as a general matter, the requested records are
available only in paper format and will be produced in that format, 65 P.S. 67.701(a) ("A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists"). The DOC has complied with the requirements of the RTKL. 4. Archive and Handling Charges are not Permissible The DOC estimates $6636.00 for "access" to files from its archive vendor and "handling charges" of $1044 and submitted a pricing schedule from Iron Mountain, a storage company. It does not more fully define handling charges. DOC claims this surcharge as necessarily incurred cost, but was not mentioned in its original response to Mr. Wright. DOC submitted a "Records Management Program Pricing Schedule" from
6
Iron Mountain that has a menu of services including "temporary removal of items from or return of items to storage." Retrieval service may be "regular" or "rush" and the charges are by the cubic foot. It is the view of the Office of Open Records that this is not a proper charge to pass along to a requester in accordance with the RTLK, which specifies and enumerates the types of fees that may be charged and states clearly that, "[ e]xcept as otherwise provided by statute, no other fees may be imposed unless the agency necessarily incurs costs for complying with the request, and such fees must be reasonable." The search and retrieval argument has previously and soundly addressed by Pennsylvania courts. In York Newspapers, Inc. v. City of York, 826 A.2d 41 (Pa. Cmwlth. 2003), the Court determined that it is not proper to charge overtime for an employee to search and retrieve documents, York Newspapers, Inc. v. City of York, 826 A.2d 41 (Pa. Cmwlth. 2003). Similarly so, it is therefore not appropriate to levy those fees, paying a third party for the same services. To do so, would circumvent the purpose of the RTKL and limit public access. Although York was decided under the previous R TKL, the new law is even more precise with
respect to permissible charges. 5. The DOC Must Permit Inspection and Copying The RTKL states: "Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act, 67 P.S. §701 (emphasis added). There is no requirement that Mr. Wright agree to incur an expense for archived documents when they are required to be accessible for inspection and copying.
As previously decided by OOR Zubey-Department of
Environmental Protection, AP 2009-0141, the OOR determined that an agency does have
7
an obligation under this law to photocopy and mail public records. However, here, the parties agreed that Mr. Wright would be permitted to bring his own copier or scanner, and therefore DOC must honor that agreement. Additionally, as outlined above, DOC cannot charge him for search and retrieval of documents, a fee not permitted by the RTKL or approved by the OOR, which holds the authority pursuant to the statute to set fees. CONCLUSION For the foregoing reasons, this appeal is denied in part and granted in part. The DOC shall provide Mr. Wright with access to the requested documents within 30 days and permit him to make copies using his own equipment. If Mr. Wright decides not to proceed in this manner, the estimated copying charges are reasonable and the DOC is permitted to require prepayment.
The DOC is not required to waive its copying costs,
nor is it required to convert paper documents into electronic records. The parties are advised that this is a final determination. Within thirty (30) days of the mailing date of this determination, it may be appealed to the Commonwealth Court of Pennsylvania.
In the event of an appeal for judicial review, all parties must be served
with notice of the appeal. The Office of Open Records shall be served notice in accordance with Section 130land have an opportunity to respond to any appeal for judicial review. The parties are advised that this Final Determination will be posted on the Office of Open Records website at:
http://openrecords.state.pa.us
8
FINAL DETERMINATION ISSUED ON: April 13, 2009
APPEALS OFFICER Dena Lefkowitz, Esq.
9
Appendix "B" Unpublished Memorandum and Order dated August 22, 2014 Pennsylvania State Education Association v. Pennsylvanians for Union Reform (PSEA v. PFUR), 310 C.D. 2014
IN THE COMMONWEALTHCOURTOF PENNSYLVANIA State Employees' Retirement System, Petitioner
v.
No. 207 C.D. 2014
Pennsylvanians for Union Reform, Respondent Pennsylvanians for Union Reform, Petitioner
v.
No. 293 C.D. 2014
State Employees' Retirement System, Respondent Pennsylvania State Education Association, Petitioner
v.
No. 310 C.D. 2014
Pennsylvanians for Union Reform, Respondent
MEMORANDUMAND ORDER NOW, this .22nd day of August, 2014, following argument on Pennsylvania for Union Reform's (PFUR) motion to quash petition for review :filed
by
Pennsylvania
State
Education
Association
(PSEA)
at
Docket
No.
310 C.D. 2014 and PFUR's motion to quash the notice of intervention filed by
! '
. i
PSEA at Docket No. 293 C.D. 2014, for the reasons set forth below, the Court hereby enters the following order:
1.
PFUR's
motion to quash PSEAJs petition for review is
GRANTED, and the petition for review docketed at No. 310 C.D. 2014 is quashed. The Chief Clerk is directed to mark that matter closed.
2.
The Court shall treat PSEA's notice of intervention, PFUR's motion to quash PSEA's notice of intervention, and PSEA's response to the motion to quash, as an application by PSEA to intervene in the consolidated appeals and PFUR's answer thereto. PSEA's application to intervene is GRANTED, and PSEA is granted intervenor status in these consolidated matters.
Briefly stated, this matter arose after an appeals officer of the Pennsylvania Office of Open Records (OOR) issued a final determination, resolving a request made to the Pennsylvania State Employees Retirement System (SERS) by PFUR pursuant to the Pennsylvania Right to Know Law (RTKL).
1
Thereafter, PFUR and SERS filed petitions for review with this Court. PSEA also
1
Act of February 14, 2008, P.L. 6, as amended,65 P.S. § 67.101-.3104.
2
filed a petition for review and notice of intervention,to which PFUR responded by filing its motions to quash. The Court consolidatedall three matters. As to PFUR's motion to quash, Section 1301(a) of the RTKL2
provides a right to appeal to this Court from a final determination of an appeals officer only to requesters or the .agency to which the RTKL request has been submitted. PSEA is neither a requester nor the agency to which PFUR submitted its request. Additionally, although the appeals officer permitted PSEA to submit information to the appeals officer for consideration in the proceeding as a "person ... with a direct interest in the record subject to [the] appeal," Section 1lOl(c)(l) of the RTKL,3 such persons or entities do not attain the status ofa party under the RTKL by virtue of having a "direct interesf' in the subject of the appeal before an appeals officer. Allegheny Cnty.Admin. Servs. v. A Second Chance,Inc., 13 A.3d 1025, 1032 (Pa. Cmwlth. 2011) (en bane) (A Second Chance).
Section l lOl(c)(l) provides such persons or entities only with the right to (1) provide informationto the appeals officer, (2) appear be.forethe appeals officer (where the appeals officer conducts a hearing), or (3) "file information in support of the requester's or agency's position." Thus, the Court concludes PSEA lacked
2
65 P.S. § 67.1301(a).
3
65 P.S. § 67.1lOl(c)(l).
3
the requisite status tmder the RTKL to file a petition for review. Accordingly, the. Court grants PF:UR's motion to quash the petition for review filed by PSEA. As to PFUR's motion to quash PSEA's notice of intervention, PFUR is correct in pointing out that Pa. R.A.P, 153 l(a) provides that only a party may file a notice of intervention in a matter in our appellate jurisdiction.
As discussed
above, PSEA was not a party to the proceeding before OOR, and, therefore, PSEA may not avail itself of the ability to intervene in this matter merely by filing a notice of intervention under Pa. R.A.P. 153l(a). Despite this procedural error by PSEA, the Court notes that Pa. R.A.P. 1531(a) also allows for intervention by permission upon application to the Court. PSEA's notice of intervention, PFUR's motion to quash the notice of intervention, and PSEA' s response to the motion to quash, contain information that would be set forth in an application to intervene and answer in opposition thereto. Thus, the Court shall treat these filings as an application by PSEA to intervene in the consolidated appeals and PFUR' s answer in opposition thereto. Procedurally, the matter before the Court here is comparable to the RTKL request this Court considered in A Second Chance, where one· of the issues was whether a trial court addressing an appeal of a final determination by an appeals officer, abused its discretion in granting intervenor status to an entity that was neither a requester nor agency respondent and had not sought to participate as
4
an entity with a "direct interest'' under Section 1101(c)(1) of the RTKL. The Court concluded that the trial court did not abuse its discretion. First, the Court observed that Section 1lOl(c)(l) of the RTKL "gives no greater status to those who provide additional infonnation than those who do not.'' Id. at 1032. The Court declined "to constrne Section 1101 as a mandatory intervention provision, barring any person with a direct interest and with knowledge of the [OORJ proceeding from intervening in a subsequent judicial proceeding if the person did not also seek to provide additional information to the [OOR] appeals officer." Id In concluding that the trial court did not err in granting intervenor status to the entity that sought to intervene, the Court in A Second Chance noted that Pa. R.A.P. 1531(a), which provides for intervention by right through the filing of a notice of intervention and also provides for permission to intervene by application pursuant to Pa. R.A.P. 123, does not apply to appeals from government agencies to the courts of common pleas. In this case, however, the Court is addressing petitfons for review that are akin to the parallel appeal process under the RTKL, where this Court, rather than a court of common pleas, is reviewing an appeal from an appeals officer's final determinat~on. Thus, whereas in A Second Chance, the Court concluded that in the abs~nce of authority (either statutory or
rule of court), the trial court had the power to exercise discretion in resolving a request for intervention in a RTKL appeal, in the present procedural posture
5
involving
an
appeal to
this
Court, the
Court concludes that either
Pa. R.A.P. 1531(a) or Pa. R.A.P. 123 provides authority for this Couii to entertain an application for intervention in an appeal from a final determination of OOR.4 In considering the merits of PSEA's application for intervention, the
Court concludes that PSEA has shown that it has sufficient interest in this matter to warrant its intervention in the consolidated appeals of OOR's final determination. Further support exists for this -conclusion in our Supreme Court's decision in
PennsylvaniaState EducationAssociationv. PennsylvaniaOfficeof OpenRecords, 50 A.3d 1263 (Pa. 2012) (PSEA), where the Supreme Court commented that the appellants in that case, which included PSEA and some of its members, had "amply established that-although
school employees have (at the very least) a
colorable interest in the grant or denial ofRTKL requests for their personal address information-the
RTKL does not make them parties to the request or the ensuing
appeal process." PSEA, 50 A.3d at 1275. The Supreme Court further commented that "affected school employees are not so much as afforded required notice of OOR." Id. Based upon the Supreme
requests and/or proceedings before ...
Court's condusion that PSEA had a sufficient interest in the declaratory judgment
4
Pa. R.A.P. 1531(a) provides, in part, that "[a]:fter 30 days after notice of filing of an appellate petition for review, permission to intervene may be sought by application pursuant to Rule 123." Pa R.A.P. 123 provides in pertinent part that "[u]nless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a written application for such order or relief."
6
proceeding in PSEA,PSEA appears to have a sufficient interest in this statutory appeal from OOR's final determination, which involves similar if not identical issues, to support PSEA's intervention. As in A Second Chance,this Court sees no prejudice to PFUR arising from this decision, especially in light of the fact that PSEA has no other mechanismby which to participate in the matter as a party.
P. KEVIN BROBSON,Judge
Certffied fromtheRecord 7
AUG2 2 2014
andOrder Exit
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief complies with Rule App. P. 2135, in that it contains 13, 949 words as calculated by the word processing program used in the preparation of this Brief. NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
-.>J,,&.()W~ .•____.._..[}---""--"-~~==------
7
Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967
200 North Third Street, 18th Floor P. 0. Box 840 Harrisburg, PA 17108-0840 Counsel for Ryan Bagwell, Respondent Date: April 10, 2015
CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Judy A. Imes, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Brief of Ryan Bagwell, Respondent" by electronic filing to the following: Roberto T. Datorre, Esquire Pennsylvania Department of Education Office of Chief Counsel 333 Market Street, 9thFloor Harrisburg, PA 17126
[email protected] Karen S. Feuchtenberger, Esquire Pennsylvania Department of Education Office of Chief Counsel 333 Market Street, 9thFloor Harrisburg, PA 17126
[email protected] Robert L. Byer, Esquire Daniel R. Wal worth, Esquire Brian J. Slipakoff Duane Morris LLP 30 S. 1ih Street Philadelphia, PA 19103-4196
[email protected] [email protected] [email protected]
u
Date: April 10, 2015
