Clearfield Cnty. v. Bigler Boyz Enviro, Inc., 2204 C.D. 2015

144 A.3d 258

CLEARFIELD COUNTY

v.BIGLER BOYZ ENVIRO, INC. and Pennsylvania Office of Open Records

Appeal of: Bigler Boyz Enviro, Inc.

No. 2204 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued June 6, 2015.

Decided July 28, 2016.

Matthew R. Zwick, Dubois, for appellant.

Kim C. Kesner, Solicitor, Clearfield, for appellee.

BEFORE: RENÉE COHN JUBELIRER, Judge, and MICHAEL H. WOJCIK, Judge, and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Judge MICHAEL H. WOJCIK.

Bigler Boyz Enviro, Inc. (BBE) appeals from the October 12, 2015 order of the Court of Common Pleas of Clearfield County (trial court) reversing a final determination of the Office of Open Records (OOR). The trial court held that handwritten notes made by Clearfield County Commissioner Joan Robinson McMillen concerning two unsolicited telephone calls she received from private individuals were not “records” as defined by section 102 of the Right–to–Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. § 67.102. We affirm.

The Pennsylvania Hazardous Materials Emergency Planning and Response Act (Act)¹ requires each county to have a hazardous material response team (HAZMAT response team) certified by the Pennsylvania Emergency Management Agency (PEMA). Under the Act and PEMA regulations, a county may only have one primary HAZMAT response team, which must have an agreement with the county it serves. Pursuant to an existing three-year contract dated June 7, 2013, Eagle Towing & Recovery, Inc. (Eagle) is Clearfield County's primary HAZMAT response team.

At the County Commissioners' April 14, 2015 public meeting, BBE proposed that it replace Eagle as the County's primary HAZMAT response team. A motion was passed to table consideration of BBE's request until the Commissioners' April 28, 2015 meeting, and the request was listed on the agenda for the April 28th meeting as “old business.”

In the interim, the Commissioners received correspondence concerning BBE's proposal from the Sandy Township Fire Department, Lawrence Township Volunteer Fire Company # 1, and William C. Kriner, Esq. Additionally, Commissioner McMillen, Chair of the Board of Commissioners, received two unsolicited telephone calls at her Commissioner's office from private individuals regarding replacing Eagle with BBE. She made handwritten notes of those calls consisting of one page.

At the Commissioners' April 28th meeting, when the agenda item of “old business” was reached, Commissioner McMillen asked if there was a motion on BBE's request. No motion was made. After pausing for discussion and receiving none, Commissioner McMillen moved to new business.

On April 29, 2015, BBE filed a RTKL request (Request) with Clearfield County Right–to–Know Officer Marianne Sankey. In relevant part, the Request sought the following: “All records, writings, documents and communications in the possession of the Clearfield County Board of Commissioners regarding consideration of [BBE] as a HAZMAT vendor in Clearfield County, Pennsylvania.” (Findings of Fact Nos. 1–2.)

In accordance with Section 901 of the RTKL, 65 P.S. § 67.901, Ms. Sankey asked each Commissioner to identify any records that fell within the Request. Commissioners John Sobel and Mark McCracken replied that neither had anything responsive to the Request. Commissioner McMillen advised that she had nothing responsive except for one page of handwritten notes concerning two unsolicited telephone calls from private individuals, which she made between April 14, 2015, and 28, 2015.

Ms. Sankey responded to BBE's Request on May 5, 2015, as follows:

This is in response to your itemized request:

1. The request for records as stated is too broad, non-specific, unlimited as to time and vague to reasonably permit identification of all public records “... regarding consideration of [BBE] as a HAZMAT vendor ...” by the Clearfield County Board of Commissioners presently or in the past. Notwithstanding and without limiting the foregoing, inquiry has been made by the Clearfield County Open Records Officer of the Clearfield County Board of Commissioners regarding public records within the request during the period of April 14, 2015 thru April 28, 2015. After the April 14, 2015 meeting of the Clearfield County Board of Commissioners and in apparent reaction to media reports of the Board's potential consideration of [BBE] as Clearfield County's primary HAZMAT responder replacing Eagle Towing & Recovery, Inc., the Board of Commissioners received written communications from the Sandy Township Fire Department, Lawrence Township Volunteer Fire Company # 1 and William C. Kriner, Esquire. Copies of these written correspondences received are enclosed and marked as # 1. In addition, individual Commissioners received various contacts from individuals opposing contracting with [BBE] and/or commending [Eagle] and/or opposing replacement of [Eagle] with [BBE]. The request for all “communications” as defined on Exhibit A of the request exceeds the definition of “record” under the [RTKL]. Moreover, any public records in existence regarding “inquiries, discussions, conversations ... telephone conversations [...] are exempt from public access as 1) internal, predecisional deliberations of an agency, its members, employees or officials ...” (RTKL Section 708(B)(10)(i)(l ) or 2) material, notes, correspondence, reports regarding complaints submitted to the Commissioners and/or investigations by the individual Commissioners on their respective positions on the request by [BBE] to become the primary HAZMAT provider for Clearfield County (Section 708(b)(17)(i)(ii)).

[Items 2, 3, 4, and 6 are granted and provided. Item 5 is omitted; the minutes of the Commissioners' April 28, 2015 meeting have not yet been approved and can be requested after the Commissioners' May 12, 2015 meeting.].

Appellant's brief, Appendix D. Upon advice of counsel, access to Commissioner McMillen's notes was denied. (Finding of Fact No. 7.)

BBE appealed to the OOR. Neither party requested a hearing, but both parties submitted additional information, including a supplemental statement made under penalty of perjury by Commissioner McMillen.² The OOR first concluded that the Request was sufficiently specific as evidenced by the County's response. The OOR next considered that Section 102 of the RTKL defines a “record” as “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102. The OOR concluded that the Commissioners' decision not to take action on BBE's request for consideration as a HAZMAT vendor was an activity of the County in itself; therefore, any records created, received or retained in connection with the failure to act on BBE's proposal were records of the County.

The OOR also rejected the County's arguments that the records are exempt under Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10), as reflecting the internal pre-decisional deliberations between agency members or employees, or under Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17), as related to a non-criminal investigation. Accordingly, the OOR granted the appeal and ordered the County to provide all records responsive to Item 1 of the Request within 30 days.

The County appealed to the trial court, which conducted a de novo hearing on August 24, 2015. During her testimony, Commissioner McMillen stated that she reviewed the Request with Ms. Sankey and they considered the one page of handwritten incomplete sentences and scribblings McMillen made concerning the two phone calls. She said her notes included the identities of the callers, who were critical of replacing Eagle with BBE. McMillen said she did not want to disclose the notes because she believed her constituents expected and deserved confidentiality in expressing their opinions. She explained that the callers were fearful of retaliation against them from BBE. R.R. at 104–07. She also testified that Eagle was certified by PEMA and BBE was not.

McMillen testified that she received the two phone calls in her office; she did not share her notes with the other Commissioners and they did not influence her position on this issue. She said that she had already noted on the record that BBE was not certified and that the County had a longstanding relationship with Eagle, which had provided excellent service. In other words, she said, her decision had already been made and the calls had absolutely no influence on her position. (R.R. at 118.)

McMillen stated that a motion to pursue a contract with BBE was made at the April 14th meeting and died for lack of a second; a subsequent motion to table any decision until the Commissioners' next meeting was passed. McMillen testified that, in apparent response to media reports, the Commissioners received letters from the Sandy Township Fire Department, Lawrence Township Volunteer Fire Company # 1, and William C. Kriner, Esq. regarding the issue, with the firefighters expressing strong objection to a contract with BBE. McMillen also referenced a pending lawsuit against the County filed by BBE, and she noted that BBE rejected the suggestion to become a secondary HAZMAT provider. (R.R. at 135–37.) She added that both of the other Commissioners had taken a tour of BBE's facility between the two meetings. According to McMillen, the matter was listed as old business on the agenda for the April 28th meeting; she asked for a motion; and no motion was made. Moreover, there was no discussion or deliberation of the matter at that meeting.

The trial court's pertinent findings include the following. Commissioner McMillen believed that the callers intended their calls to be held in confidence out of fear of retribution by BBE. She did not share the content of those calls or her notes with the other Commissioners. The content of the calls did not affect Commissioner McMillen's...