Cash Wright v. Office of Open Records

1

Cash Wright, Appellant v. Office of Open Records

No. 1204 C.D. 2021

Commonwealth Court of Pennsylvania

January 16, 2024

OPINION NOT REPORTED

Submitted: December 4, 2023

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE LORI A. DUMAS, Judge HONORABLE BONNIE BRIGANCE LEADBETTER Senior Judge

MEMORANDUM OPINION

PATRICIA A. McCULLOUGH, JUDGE

Cash Wright (Requester) appeals pro se from the July 14, 2021 Order entered in the Philadelphia County Court of Common Pleas (trial court) denying his appeal of the Final Determination issued by the Office of Open Records (OOR), which dismissed as untimely the appeal of his Right-to-Know Law (RTKL)^[1] request concerning a sheriff's sale in the City of Philadelphia (City). Upon review, we affirm.

I. Background and Procedural History

On September 19, 2020, Requester submitted a request to the City under the RTKL seeking records related to a February 19, 2020 sheriff's sale, which he alleged, was inappropriately conducted to his detriment (Request). The City invoked a 30-day extension to respond to his Request on September 25, 2020,^[2] and before that extension period expired, the City asked for an additional 30 days to respond on October 22, 2020.^[3] However, Requester did not send a written response addressing the extension.^[4]

Requester appealed to OOR on December 1, 2020.^[5] OOR entered a deficiency order directing him to submit a copy of his Request along with the City's response, which Requester provided on December 15, 2020. OOR issued a Final Determination on January 4, 2021, dismissing Requester's appeal as untimely. OOR explained that it lacked jurisdiction over the untimely appeal and stated as follows:

Requester submitted the City's September 25, 2020 notice invoking a thirty-day extension, as well as an email dated October 22, 2020 seeking additional time to respond. On December 29, 2020, the City submitted an affidavit made under the penalty of perjury from Nora Day, Legal Assistant in the City's Law Department. Ms. Day attests that on October 22, 2020 she sought an additional extension to respond; however, she confirms there was no written agreement from the Requester agreeing to the extension. Even if the parties had an oral agreement to extend the date to respond to the Request, because there was no agreement in writing from the Requester, the Request was deemed denied on October 26, 2020. Based on the deemed denial date of October 26, 2020, the appeal was to be filed by November 17, 2020. Because the OOR received the appeal on December 1, 2020, more than fifteen days after the Request was deemed denied, the appeal is dismissed as untimely, and the City is not required to take any further action.

(OOR Final Determination, at 2-3) (footnotes omitted).

Requester filed an appeal from OOR's Final Determination in the trial court on January 29, 2021. The trial court held a hearing via Zoom video conferencing on July 14, 2021, at which Requester appeared pro se and the City was represented by counsel. Requester testified in pertinent part as follows:

This matter results from a sheriff's sale. It was a large property, almost two acres, unheard of in sheriff's sale, city of Philadelphia standards, very rare. It was like a 30-year offering. And I felt that-there's bidders that usually come to the auction and they consider what high rollers they buy probably 95 percent of the viable property. . . . What was I was looking for was the records of these repeat buyers, these preferential buyers, find out the percentage, some statistics as to how many properties they buy and where they bought them. . . . I was the only one that rose to my feet and made an initial bid, and there was no challenging bid. So [the auctioneer] went on this charade of intimidating me, insulting me and buying time to other bidders, select bidders. . . . I should have been the winning bidder from the offset of the auction[.]

(Notes of Testimony, 7/14/21, at 9-11.) When asked about the timeliness of his appeal to OOR, Requester opined that the legislature did not intend for RTKL requests to be dismissed based on "a date controversy." Id. at 6. After the hearing, the trial court entered an Order denying Requester's appeal. Requester filed a Notice of Appeal with the Pennsylvania Superior Court on August 9, 2021, and that Court transferred the case to us.

The trial court issued an opinion on December 3, 2021, explaining that because Requester's appeal was filed after the 15-day deadline prescribed by the RTKL, OOR properly dismissed it as untimely. (Trial Ct. Op., 12/03/21, at 7-10.) The court additionally noted that Requester failed to produce any evidence to support his allegation that the City engaged in "scam tactics" or other inappropriate conduct, despite being provided with ample opportunity to do so at the July 2021 hearing. Id. at 6-7.

II. Analysis

On appeal,^[6] Requester contends the trial court erred in failing to find that the City disregarded its obligation under the RTKL to provide him with information concerning the February 2020 sheriff's sale. (Requester's Br. at 4, 8-10.) Requester also challenges OOR's dismissal of his appeal as untimely. Id. at 5, 10.

"Initially, the purpose of the RTKL is to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." In re Melamed, 287 A.3d 491, 497 (Pa. Cmwlth. 2022). Although an agency has an obligation to provide information in good faith to requesters under the RTKL, the statute imposes certain requirements relating to extensions. Specifically, as noted, Section 902(b)(2) provides that where the response from an agency is expected to exceed 30 days, that request "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) (emphasis added).

In the instant case, after invoking the initial 30-day extension period concerning the Request, the City requested an additional extension, citing staffing limitations and other logistical constraints. Requester, however, failed to respond to the communication in writing, as required by Section 902. Therefore, the extension was not implemented, and the Request was deemed denied, triggering the15-day appeal period. See Section 1101 of the RTKL, 65 P.S. § 67.1101. Because Requester did not file his appeal with OOR within 15 business days of the deemed denial of his Request, the appeal was untimely, thereby depriving OOR and the trial court of jurisdiction over the matter. Therefore, the trial court properly affirmed the Final Determination of OOR.^[7]

ORDER

AND NOW, this 16^th day of January, 2024, the July 14 2021 Order entered in the Philadelphia County Court of...