Pa. Dep't of Revenue v. Flemming

Pennsylvania Department of Revenue, Petitioner v. Derrick Flemming, Respondent

No. 2318 C.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: June 26, 2015

August 21, 2015

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

The Pennsylvania Department of Revenue (Department) petitions for review from a final determination of the Office of Open Records (OOR), granting the request of Derrick Flemming (Requester) under the Right-to-Know Law (RTKL).¹ Requester sought records regarding the Department's administration of the Pennsylvania Lottery (the "Lottery") pursuant to Section 303 of the State Lottery Law, 72 P.S. §3761-303² (State Lottery Law). The Department denied access under Section 708(b)(1)(ii) of the RTKL, 65 P.S. §67.708(b)(1)(ii) (the Personal Security exception), and Section 708(b)(11) of the RTKL, §67.708(b)(11) (the Trade Secrets exception). The Department raises a procedural challenge and appeals OOR's determination on the merits. Upon review, we affirm.

I. Background

Requester submitted a RTKL request to the Department for "[(1)] data for all of your retail agents info[rmation] [(Agent Information),] and [(2)] all purchased and winning tickets by each game (Scratch-off and Draw), by day and retailer[,] from January 1, 2012 to current [(Ticket Information)]. I am not looking for any winner names. For winning tickets[,] can you tell where they were purchased?" Reproduced Record (R.R.) at 18a (Request). As to Agent Information, he sought: Agent number; store name; address; city; retailer type; and, Agent start date. As to Ticket Information for purchased and winning tickets, he sought: Agent number; game; date; number of tickets purchased; number of winning tickets; dollar(s) spent; and dollar(s) paid out. Id.

The Department denied the Request in part based on the public safety exception in Section 708(b)(2) of the RTKL, 65 P.S. §67.708(b)(2). Requester appealed the denial of part 2 of the Request (Ticket Information) to OOR.

On appeal to OOR, the Department asserted the requested records were protected by the Personal Security and Trade Secrets exceptions under the RTKL. In support, the Department submitted a position statement verified by Jeffrey Kaylor, Records Legal Liaison for the Department, and a sworn affidavit of James Morgan, Director of Security for the Lottery (Affidavit).

Upon review of the materials the Department submitted, OOR concluded the Department did not establish either exception asserted. See Flemming v. Dep't of Revenue, OOR Dkt., No. AP 2014-1658 (issued Nov. 25,2014) (Final Determination). OOR did not dismiss the appeal as defective, noting Requester submitted a copy of the Request once ordered to do so. Id. at 2 n.2.

As to the Personal Security exception, OOR reasoned the Affidavit was too speculative to qualify as sufficient evidence. In particular, OOR noted the Department did not explain how releasing records regarding past ticket sales and winnings posed a threat to retailers in the present. Id. at 6.

As to the Trade Secrets exception, OOR likewise found the Affidavit too vague. For instance, although the Department alleged that Lottery competitors would use the information to the detriment of Lottery's economic goals, the Department did not identify any competitors, or indicate how disclosure of the information would harm Lottery's economic, business and policy goals.

The Department then filed a petition for review.

II. Discussion

On appeal,³ the Department raises procedural and substantive issues. Procedurally, it asserts Requester's appeal is defective because he did not submit a copy of his original request to OOR. Substantively, it contends the information is protected by the Personal Security exception contained in Section 708(b)(1)(ii) of the RTKL, and as trade secret information protected by the Trade Secrets exception in Section 708(b)(11) of the RTKL.

A. Procedure

At the outset, the Department challenges Requester's appeal to OOR as procedurally deficient. It argues OOR erred in failing to "summarily dismiss [Requester's] appeal even though [he] failed to comply with the OOR's Order dated October 27, 2014." See Pet. for Review at ¶10(a). The Department's sole complaint is that Requester did not submit the original request with his appeal to OOR as required by OOR's Interim Guidelines.

Although it is unclear whether this issue was raised before the fact-finder, R.R. at 19a-34a, because the Department questions OOR's authority to render a decision, we address it. Upon consideration, we reject the Department's procedural challenge for several reasons.

First, OOR's "Interim Guidelines" are a dubious basis for a dismissal. As our Supreme Court noted, OOR's Interim Guidelines "do not constitute duly promulgated regulations" entitled to deference. Bowling v. Office of Open Records, 75 A.3d 453, 471 n.20 (Pa. 2013); Office of Open Records v. Center Twp., 95 A.3d 354, 369 n.20 (Pa. Cmwlth. 2014).

Second, the guidelines purportedly require an appeal to include a copy of the complete request. The Department does not allege the Request was incomplete. Relevant here, OOR's guidelines do not require submission of an identical copy of a request in the original format. Indeed, were OOR to construe its guidelines so strictly, compliance would not be possible as the original copy of a request is submitted to an agency subject to the RTKL.

Third, contrary to the Department's characterization, Requester did not "[fail] to comply with the OOR's Order ...." Pet. for Review at ¶10(a). OOR allowed Requester an opportunity to cure the alleged deficiency and deemed his later submission sufficient. In so doing, OOR construed its guidelines to require the original content of the request submitted to an agency, not the original format. On review, the content of the Request is identical to the submission to the Department, and the Department does not dispute its accuracy. Based on that construction, Requester did not violate OOR's guidelines or OOR's procedural directive.

Thus, Requester's alleged failure to include a copy of the Request with his appeal is not fatal. See, e.g., Kokinda v. Cnty. of Lehigh (Pa. Cmwlth., No. 1146 C.D. 2013, filed Jan. 8, 2014), 2014 WL 61317 (unreported) (noting trial court held copy of request was not necessary for review). Accordingly, OOR did not err in accepting Requester's appeal and deciding it on the merits.

B. Merits

Next, we assess the Department's arguments that Ticket Information is protected by the Personal Security and the Trade Secrets exceptions of the RTKL.

The RTKL is remedial in nature and "is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." Pa. State Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc).Consistent with the RTKL's goal of promoting government transparency, the exceptions to disclosure must be narrowly construed. Id.

Under the RTKL, records in possession of a Commonwealth agency are presumed to be public unless they are: (1) exempt under Section 708 of the RTKL; (2) "protected by a privilege; or[,] (3) ... exempt from disclosure under any other Federal or State law or regulation or judicial order or decree." Section 305 of the RTKL, 65 P.S. §67.305 (emphasis added). Pursuant to Section 708(a) of the RTKL, an agency bears the burden of proving a RTKL exception by a preponderance of the evidence. 65 P.S. §67.708(a).

1. Personal Security Exception

The Personal Security exception protects any record, the disclosure of which "would be reasonably likely to result in substantial and demonstrable risk of physical harm to or the personal security of an individual." Section 708(b)(1)(ii) of the RTKL, 65 P.S. §67.708(b)(1)(ii). To meet its burden of proof, an agency must show both: (1) a "reasonable likelihood" of (2) "substantial and demonstrable risk" to an individual's security if the information is not protected. Governor's Office of Admin. v. Purcell, 35 A.3d 811 (Pa. Cmwlth. 2011). We define substantial and demonstrable as actual or real and apparent. Id. "More than mere conjecture is needed." Governor's Office of Admin. v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61, 66 (Pa. Cmwlth. 2014) (quoting Purcell, 35 A.3d at 820).

Recently, this Court construed this exception strictly to require some explanation as to "how the disclosure ... would be reasonably likely to result in a substantial and demonstrable risk of harm to [individuals'] personal security." State Emps.' Ret. Sys. v. Fultz, 107 A.3d 860, 869 (Pa. Cmwlth. 2015) (emphasis added). We rejected "general and broad-sweeping" conclusory statements contained in identical affidavits regarding the perceived threat. Id.

Here, the harm the Department articulates relates to the potential for criminal activity involving retail establishments because the Lottery is a largely cash business. The Department contends that divulging the number of winning tickets purchased at a specific retailer would divulge the amount of cash on hand, which in turn, would encourage robberies of these retailers. Specifically, the Department submits: "If information about the total number of tickets purchased at a specific Pennsylvania Lottery retailer would be disclosed, it is my opinion that criminals would use this information to target specific Pennsylvania Lottery retailers and their employees." Affidavit at ¶20, R.R. at 28a. The Department also posits that "criminals would use this information to target ... Lottery winners." Id.

The Affidavit consists of speculation as to possible harms without containing any facts to indicate their likelihood. As such, the threat the Department describes is pure conjecture. Fultz. Given the absence of any facts regarding likelihood, the Court agrees with OOR that the perceived threat of robberies...