Pa. Off. of Governor v. Brelje

312 A.3d 928

PENNSYLVANIA OFFICE OF the GOVERNOR, Petitioner

v.Beth BRELJE (Office of Open Records), Respondent

No. 363 C.D. 2022

Commonwealth Court of Pennsylvania.

Submitted on Briefs February 10, 2023

Decided February 23, 2024

Appealed from No. AP 2022-0459, Office of Open Records.

Thomas P. Howell, Deputy General Counsel, Harrisburg, for Petitioner.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER

Pennsylvania Office of the Governor (Governor’s Office) petitions for review of the Office of Open Record’s (OOR) Final Determination granting in part and denying in part the request of Beth Brelje (Requester) seeking emails of two individuals under the Right-to-Know Law (RTKL).¹ After careful review, we affirm in part, reverse in part, and remand.

I. Background

A. Factual and Procedural Background

On January 6, 2022, Requester filed two RTKL requests, one seeking "[a]ll incoming and outgoing email for Deputy Press Secretary Emily Demsey, Dec. 1-Dec, 10" and the other seeking "[a]ll incoming and outgoing email for Press Secretary Elizabeth Rementer, Dec. 11-Dec. 31" (Requests). (Reproduced Record (R.R.) at 6a-7a.) The Governor’s Office provided an interim response to Requester on January 13, 2022, indicating that it would need an extension of time pursuant to Section 902(a)(1), (3), (4), and (7) of the RTKL, 65 P.S. § 67.902(a)(1), (3), (4), and (7), to identify the records and conduct a legal review. (R.R. at 5a.) It represented that it "ha[d] begun the process of identifying records that may be responsive to [the R]equests. The extent [thereof], however, precludes a response within five business days as required by the [RTKL]." (Id.)

On February 14, 2022, the Governor’s Office denied the Requests. (Id. at 3a.) The Governor’s Office determined that the Requests were not sufficiently specific pursuant to Section 703 of the RTKL, 65 P.S. § 67.703, pointing to the three-part test which requires subject matter, scope of request, and timeframe to be identified. Carey v. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Cmwlth. 2018). From the perspective of the Governor’s Office, the Requests failed the first prong, as they "define[d] no subject matter about which [Requester] seek[s] records." (R.R. at 3a)

That same day, Requester appealed to the OOR. (Id. at la.) Requester argued that the Requests were "so clear and specific that if … anyone with basic email knowledge, were sitting at a computer with access, the requested documents could easily be found in moments." (Id. at 2a.) Requester asserted that the Requests satisfied each of the Carey factors. (Id.) On February 25, the Governor’s Office submitted a position statement. It characterized the requirement that the request identify the "subject matter" of the request as "a wholly appropriate and necessary point of inquiry." (Id. at 18a.) It took the position that because the Requests were not sufficiently specific, it was "not able to compile and review all potentially responsive records." (Id. at 19a.) However, it specifically requested "the opportunity to review and provide more detailed information regarding sufficient bases to withhold or redact those privileged or exempt records" in the event the OOR did not agree the Requests were insufficiently specific. (Id. at 20a)

The Governor’s Office also submitted an affirmation (Affirmation), sworn by its agency open records officer. Therein, the open records officer explains that he consulted with custodians, thereby determining the lack of meaningful subject matter prevented identification of responsive records. (Affirmation ¶¶ 3–4.²) The Affirmation continues that, "if specifically identified" the records would be exempt for several reasons. (Id. ¶¶ 10-15.)

B. The OOR’s Final Determination

In its Final Determination, the OOR likened the emails at issue in this case to those sought by the requester in Easton Area School District v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012), and our recent unreported decision in Methacton School District v. Office of Open Records, 2021 WL 6122163 (Pa. Cmwlth., No. 250 C.D. 2021, filed December 28, 2021). It reasoned that by focusing on two individuals’ communications within a short period of time, the Requests were sufficiently specific to pass muster under Carey. The OOR then rejected the Governor’s Office’s argument that it should have the opportunity to "review and provide more detailed information regarding sufficient bases to withhold or redact privileged or exempt records." (Final Determination at 6 (quotation marks omitted).) However, the OOR construed this argument as a request to bifurcate the proceeding, and it declined to do so. It explained that "[b]ecause there is no statutory mechanism enabling the OOR to bifurcate an appeal, the [Governor’s] Office was required to raise all of its arguments and support them with evidence in the normal course of the appeal." (Id.) It did, however, permit the Governor’s Office to redact email addresses, phone numbers, and other sensitive information upon its review per Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(6)(i)(A). The Governor’s Office timely petitioned for review of the OOR’s Final Determination. (See Petition for Review.) All parties having had the opportunity to brief the issues, this case is now ripe for our disposition.³

C. Issues

Before this Court, the Governor’s Office raises three issues, reordered for ease of disposition, asking us to determine: (1) whether the OOR erred in finding the Requests to be sufficiently specific; (2) whether the OOR erred in determining the Governor’s Office’s request for further review with respect to privilege and exempt records was insufficient in light of Pennsylvania State System of Higher Education v. Association of State College and University Faculties, 142 A.3d 1023 (Pa. Cmwlth. 2016) (PASSHE); and (3) whether the OOR erred in disregarding substantial evidence that the records at issue were exempt and privileged. (Petition for Review ¶ 4(a)-(c).)

II. Discussion

A. General Legal Principles

1. The RTKL

"[W]hen the General Assembly replaced the Right to Know Act⁴ in 2009 with the current RTKL, it ‘significantly expanded public access to governmental records … with the goal of promoting governmental transparency.’ " Pa. State Police v. Grove, 640 Pa. 1, 161 A.3d 877, 892 (2017). Consistent with that focus on transparency, the RTKL created a statutory presumption that "record[s] in the possession of a Commonwealth agency or local agency" are public records. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). That presumption does not apply to records the statute specifically exempts under Section 708,⁵ records protected by a privilege,⁶ or records exempt by operation of, inter alia, federal or state law. Section 305(a)(1)-(3) of the RTKL, 65 P.S. § 67.305(a)(1)-(3). Notably, unlike the predecessor Right to Know Act, under the RTKL, the agency—not the requester—bears the burden of proving that a given record is exempt from disclosure. 65 P.S. § 67.708(a)(1). The RTKL also has demanding deadlines. The agency has five business days to respond, Section 901 of the RTKL, 65 P.S. § 67.901, which may be extended if one of several conditions applies, 65 P.S. § 67.902(a). If the requester appeals the agency’s determination, the OOR must issue a final determination within 30 days. Section 1101(b)(1) of the RTKL, 65 P.S. § 67.1101(b)(1).

2. Standard and Scope of Review⁷

[1–4] Pursuant to Chapter 13 of the RTKL, with respect to appeals relating to decisions of Commonwealth agencies, this Court is the ultimate factfinder in RTKL disputes.⁸ Section 1301 of the RTKL, 65 P.S. § 67.1301. Accordingly, we owe no deference to the OCR’s legal analysis or factfinding, as our standard of review of a final determination of the OOR is de novo. Bowling v. Off. of Open Recs., 621 Pa. 133, 75 A.3d 453, 474 (2013). In addition, we are "entitled to the broadest scope of review[,]" covering all justiciable issues raised and preserved below. Id. at 477. See also Payne v. Pa. Dep't of Health, 240 A.3d 221, 225 n.6 (Pa. Cmwlth. 2020). Unlike in other administrative agency contexts, "we … may substitute our own findings of fact for that of the agency." W. Chester Univ. of Pa. v. Browne, 71 A.3d 1064, 1067 n.4 (Pa. Cmwlth. 2013). We have the discretion to conduct a hearing, or to remand to the OOR, to supplement the record. Id.

B. Sufficient Specificity

1. Arguments

The Governor’s Office first argues that because the Requests did not specify a specific subject matter, but rather only the identities of the individuals and a timeframe, the request is insufficiently specific. It argues the request must identify the transaction or activity at issue, pointing to Carey and Pennsylvania Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Cmwlth. 2015). The Governor’s Office attempts to distinguish Baxter by focusing on two factual differences: First, that the school district had already identified records, and second, that the school directors at issue there were part time. By contrast, the individuals whose emails are at issue here are "full time, high-ranking administration employees" who "engage in business that conceivably relates to any or all of the Commonwealth’s executive agencies." (Governor’s Office Brief (Br.) at 12.) It contrasts the "vast operations" of the two individuals here from the school directors in Baxter, faulting Requester for failing to "include even a single topic about which" Requester seeks records. (Id. at 13.) It urges this Court not to give weight to Methacton for similar reasons. Pointing to federal Freedom of Information Act⁹ caselaw, the Governor’s Office explains that the inquiry should be "highly context specific." (Id. at 11 (quoting Nat’l Sec. Counselors v. Cent. Intel, Agency, 898 F. Supp. 2d 233, 278 (D.D.C. 2012)).) In its view, "reliance on B...