T. Greco v. DGS ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thom Greco, :
Petitioner :
:
v. : No. 260 C.D. 2016
: Submitted: June 9, 2017
Department of General Services, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 10, 2017
Thom Greco (Greco) appeals a final determination by the Office of
Open Records (OOR) finding his appeal moot because the Department of General
Services (Department) provided him with the documents he requested in his Right-
to-Know Law1 request after he filed his appeal. For the following reasons, we
reverse and remand.
I.
The Department’s Bureau of Real Estate solicited proposals (SFPs) to
lease for office space. On June 2, 2015, Greco responded to an SFP and on August
1
The Right-to-Know Law, Act of February 14, 2008, P.L. 6, No. 3, 65 P.S. § 67.101-104.
14, 2015, he received an email from Pete Kafkalas, the Real Estate Coordinator
from the Department’s Bureau of Real Estate, which said: “Please submit your
Best & Final Offers [(BAFO)] for the above SFP to me by close of business
Friday, 21 August [2015].” (Reproduced Record (R.R.) at 1a.) In September
2015, Greco received a letter from the Chief of the Division of Leasing at the
Department, informing him that “the Commonwealth has completed its evaluation
of all proposals received and has tentatively selected another proposal for this new
lease, which is contingent upon all necessary approvals being obtained . . . .” (R.R.
at 2a.) Greco then submitted a Right-to-Know Law request to the Department,
requesting “[a]ll responding bids submitted for the SFP # 94715 - and the Best And
Final Offers that were to be submitted by August 21, 2015 to Real Estate
Coordinator – Pete Kafkalas.” (R.R. at 3a.)
Because it had not yet awarded a lease, the Department denied the
request pursuant to Section 708(b)(26) of the Right-to-Know Law2 which exempts
2
Section 708(b)(26) of the Right-to-Know Law provides that the following is exempt
from public access by a requester under the Act:
A proposal pertaining to agency procurement or disposal of
supplies, services or construction prior to the award of the contract
or prior to the opening and rejection of all bids; financial
information of a bidder or offeror requested in an invitation for bid
or request for proposals to demonstrate the bidder’s or offeror’s
economic capability; or the identity of members, notes and other
records of agency proposal evaluation committees established
under 62 Pa.C.S. § 513 (relating to competitive sealed proposals).
65 P.S. § 67.708(b)(26).
2
bid or proposal documents from public access prior to award of the bid or proposal.
In its denial letter, the Department also stated:
Generally, the procedure to lease office space consists of
a series of sequential actions which begins by identifying
the need for additional office space or the evaluation of
existing office space to determine what will meet an
agency’s needs. Reviews of and by various legal,
comptroller and audit staff of several agencies including
independent agencies such as those in the Pennsylvania
Attorney General’s Office and State Treasurer are
embedded into the solicitation, award and contracting
process to protect Commonwealth interests, to ensure the
availability and proper use of funds, to guarantee fair and
reasonable pricing, and to maintain integrity. . . . After
all required reviews have been completed, the Bureau of
Real Estate presents the proposed lease to the Board of
Commissioners of Public Grounds and Buildings for
approval. The lease is awarded upon final approval by
the Secretary of General Services.
(R.R. at 6a.)
Greco then appealed to the OOR, contending that the contract had, in
fact, been awarded once a proposal had been selected and not when the lease is
approved by the Department. Greco also contended that the email requesting that
the bidders submit their best and final offers was a new request for proposals,
effectively rejecting the solicitation of bids, which would make the exemption
contained in Section 708(b)(26) of the RTKL inapplicable. 65 P.S. §
67.708(b)(26).
3
Shortly after he appealed, Greco received a letter from the Department
informing him that it was “re-evaluating [its] needs,” and therefore the SFP was
cancelled. (R.R. at 14a.) Greco received a subsequent letter from the Department
granting his records request. After providing Greco with the responsive records,
the Department submitted a position statement to the OOR contending that the
appeal was moot.3 Although admitting that he received the documents that he
requested, Greco contended that the OOR should decide the matter anyway
because it was capable of being repeated since his next bid proposal could also be
rejected, necessitating a filing of a new RTKL request that would be denied for the
same reasons here, and the matter involved a matter of great public importance.
The OOR dismissed the appeal as moot finding that the exceptions to the mootness
doctrine did not apply because there was no evidence that the events set forth in the
appeal were likely to be repeated4 and the matter was not one of public importance.
This appeal followed.5
3
A case is moot where there is no actual case or controversy in existence at all states of
the controversy. Pap’s A.M. v. City of Erie, 812 A.2d 591, 599 (Pa. 2002). Although we
generally will not decide moot cases, exceptions are made when (1) the conduct complained of is
capable of repetition yet evading review, or (2) the matter involves questions important to the
public interest, or (3) the matter will cause one party to suffer some detriment without the
Court’s decision. Clinkscale v. Department of Public Welfare, 101 A.3d 137, 139 (Pa. Cmwlth.
2014).
4
We note that the OOR in Walsh v. School District of Philadelphia, OOR Dkt. AP 201-
1080, determined that a BAFO was, in essence, a supplement to the proposal and not a “rejection
of all bids” under the RTKL.
5
This Court independently reviews the OOR’s orders and may substitute its own findings
of fact for that of the agency. Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth.
2010) (holding that the Commonwealth Court has de novo review over appeals of final
determinations of the OOR), aff’d 75 A.3d 453 (Pa. 2013).
4
II.
Greco appeals, again contending that his appeal falls within an
exception to the mootness doctrine because the Department’s denial based upon
Section 708(b)(26) of the RTKL is subject to repetition that will escape review,
and that it is a matter of public importance because the citizens of Pennsylvania are
entitled to transparency in obtaining information pertaining to activities of their
government.
To fall within the capable repetition yet evading review exception,
two elements must be established: (1) that the duration of the challenged action is
too short to be fully litigated prior to its cessation or expiration, and (2) that there is
a reasonable expectation that the complaining party will be subjected to the same
action again. Philadelphia Public School Notebook v. School District of
Philadelphia, 49 A.3d 445, 449 (Pa. Cmwlth. 2012). Greco argues that the
Department’s request for a BAFO constituted a rejection of the initial proposals,
causing the proposals to lose their exemption under Section 708(b)(26) of the
RTKL. He further argues that because there was such a short time between the
rejection of those original bids (August 14, 2015, the date of the request for
BAFOs) and the date that the BAFOs were to be submitted (August 21, 2015), the
matter also could not be fully litigated.
In determining whether a document should be released, considerations
of the derivative effects of granting or denying a public record are irrelevant; the
only issues to be considered are whether a record is public and whether it falls
within one of the exemptions to access. The RTKL makes clear that “[a]
5
Commonwealth agency may not deny a [requestor] access to a public record due to
the intended use of the public record by the [requestor] unless otherwise provided
by law.” Section 301(b) of the RTKL, 65 P.S. § 67.301(b). Correspondingly, the
RTKL prohibits the agency from making it a requirement to disclose the purpose
or motive in requesting access to records. Section 1308 of the RTKL, 65 P.S. §
67.1308. That means “[u]nder the [RTKL], the right to examine a public record is
not based on whether the person requesting the disclosure is affected by the records
or if his or her motives are not pure in seeking them, but whether any person’s
rights are fixed.” Weaver v. Department of Corrections, 702 A.2d 370, 371 (Pa.
Cmwlth. 1997) (citing Marvel v. Dalrymple, 393 A.2d 494, 497 (Pa. Cmwlth.
1978) and Tribune-Review Publishing Co. v. Allegheny County Housing Authority,
662 A.2d 677 (Pa. Cmwlth. 1995)) (emphasis in Weaver). Moreover:
Under the RTKL, whether the document is accessible is
based only on whether a document is a public record,
and, if so, whether it falls within an exemption that
allows that it not be disclosed. The status of the
individual requesting the record and the reason for the
request, good or bad, are irrelevant as to whether a
document must be made accessible under Section 301(b)
[of the RTKL, 65 P.S. § 67.301(b)]. . . .
Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 (Pa. Cmwlth. 2014).
Because this Court only looks to whether a document constitutes a
public record, any issue involving whether a document is a public record, even if
an issue is capable of repetition, will never escape review. In this case, though,
because all the bids or proposals for a contract will become public records once the
6
contract is awarded or all bids are rejected, the issue is not whether a document
will be released. Instead, the issue here is when those documents will be released,
which is determined under Section 708(b)(26) of the RTKL. 65 P.S. §
67.708(b)(26).
The Department contends the matter is incapable of repetition and that
it is unlikely that Greco will suffer any detriment if the matters he raises are not
resolved because it is unlikely that all bids will be rejected and he will have to file
a new RTKL request. However, if his positions are correct that the selection of the
proposal is tantamount to the award of a contract or the BAFO is tantamount to the
rejection of a bid, the matter is capable of repetition every time the Department
selects a proposal or seeks BAFO from the proposers. Also, if he is correct, he will
suffer a detriment because he will not receive public records when he is entitled to
receive them.
As to the issue of whether the matter will escape review, the
Department contends that the matter will not escape review for the same reasons
set forth in its letter of November 6, 2015, where it noted that there are a number of
steps that need to be taken before a contract can be executed. Those steps involve
submitting the proposal to a series of legal, comptroller and audit staffs before
submitting a proposed lease to the Board of Commissions of Public Grounds and
Buildings for approval and finally obtaining approval by the Secretary of General
Services. The Department argues that given the strict time limits that it has to
respond to a request and the OOR has to make a decision, issues involving when a
7
contract is awarded or rejected within the meaning of Section 708(b)(26) of the
RTKL can be fully litigated prior to the award/execution of a contract.
While the issues in this case may possibly go through the
administrative process prior to the award of a contract, there is no evidence that the
proposal process is so lengthy that it will allow for this court to review the matter,
which is significant because we conduct de novo review of the OOR’s decision.
Moreover, the issue involved here – i.e., what constitutes an award of a contract or
the rejection of all bids – is one that also involves agencies that can award
contracts more expeditiously. In any event, just as we do not look to any
derivative consequences incurred from a request, similarly, we cannot decide
whether an issue will escape review when that issue is within the control of the
Department to move the contract approval process forward to make an appeal
moot.
Accordingly, because this matter is capable of repetition and can
escape review, we reverse the OOR’s decision and remand the matter to the OOR
for a determination on the merits.6
________________________________
DAN PELLEGRINI, Senior Judge
Judge Cosgrove did not participate in the decision of this case.
6
Because of the way we have resolved this matter, we need not address whether this
matter falls within the public importance exception to the mootness doctrine.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thom Greco, :
Petitioner :
:
v. : No. 260 C.D. 2016
:
Department of General Services, :
Respondent :
ORDER
AND NOW, this 10th day of July, 2017, the order of the Office of
Open Records dated January 14, 2016, in the above-captioned matter is reversed
and this matter is remanded to the Office of Open Records in accordance with this
opinion.
Jurisdiction relinquished.
________________________________
DAN PELLEGRINI, Senior Judge