S. Campbell v. PA Interscholastic Athletic Assoc. (OOR) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Simon Campbell, :
Petitioner :
:
v. :
:
Pennsylvania Interscholastic :
Athletic Association (Office of :
Open Records), : No. 25 C.D. 2021
Respondent :
Pennsylvania Interscholastic Athletic :
Association, Inc., :
Petitioner :
:
v. :
:
Simon Campbell (Office of : No. 107 C.D. 2021
Open Records), : No. 170 C.D. 2021
Respondent : Argued: September 22, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: November 30, 2021
Before the Court are consolidated petitions for review from Simon Campbell
(Requester) and the Pennsylvania Interscholastic Athletic Association (PIAA).
Requester petitions this Court for review of the Office of Open Records’ (OOR)
January 13, 2021 Final Determination denying production of the records requested
in Item 7 of his November 2, 2020 request (Request) and asks that this Court make
a finding of bad faith as to PIAA’s conduct in this matter, impose a civil penalty of
$1,500.00 upon PIAA, and award him costs and attorney fees. PIAA petitions this
Court for review of the OOR’s Final Determination and the OOR’s February 5, 2021
denial of its Petition for Reconsideration.
There are six issues before this Court: (1) whether the OOR erred by finding
that PIAA is subject to the Right-to-Know Law (RTKL)1 and whether its
classificaiton as a “state-affiliated entity” under the RTKL constitutes special
legislation and violates its equal protection rights; (2) whether the OOR violated
PIAA’s due process rights by commingling functions; (3) whether the OOR erred
by permitting the RTKL’s record access provisions to supersede those of the
Nonprofit Corporation Law of 1988 (Nonprofit Law);2 (4) whether the OOR erred
by granting unredacted access to PIAA’s legal invoices and by not providing PIAA
additional time to provide a significant volume of documents requiring redaction;
(5) whether PIAA failed to conduct a good faith search and, therefore, acted with the
requisite bad faith to support an award of statutory penalties and attorney fees; and
(6) whether PIAA failed to prove that it did not have possession, custody, or control
of any records responsive to Request Item 7.3
I. BACKGROUND
A. The Request and PIAA’s Response
On November 2, 2020, Requester filed the Request seeking:
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
15 Pa.C.S. §§ 5101-6162.
3
PIAA’s appeal from the OOR’s Final Determination and the OOR’s denial of its Petition
for Reconsideration will be addressed first since the issues therein may be dipositive of this matter.
We have reorganized some of the issues for ease of discussion.
2
[] 1 . . . [E]lectronic copies of all legal invoices that already exist in
electronic form that were paid by PIAA to any and all attorneys/law
firms between the dates of January 1, 2012[,] and the present. . . .
[] 2 . . . [E]lectronic copies of the fronts of all electronic cleared check
images that already exist in electronic form . . . for all financial
accounts owned/operated by PIAA between the dates of June 1, 2019[,]
and the present. . . .
[] 3 . . . [E]lectronic copies of all monthly bank (or other financial
institution) statements that already exist in electronic form for all
financial accounts owned/operated by PIAA between the dates of
December 1, 2013[,] and the present. . . .
[] 4 . . . [A]ll posted line[-]item transactions in all bank (or other
financial institution) accounts that already exist in electronic form for
all financial accounts owned/operated by PIAA between the dates of
June 1, 2019[,] and the present. . . .
[] 5 . . . PIAA’s most recent three (3) years of independent audited
financial statements that already exist in electronic form. . . .
[] 6 . . . PIAA’s most recent Form 990 filing with the [Internal Revenue
Service (]IRS[][)] that already exists in electronic form. . . .
[] 7 . . . [E]lectronic copies of all written communications that already
exist in electronic form, and that were exchanged between PIAA
officials (and between PIAA officials and counsel) between the dates
of January 1, 2020[,] and the present[] that discuss the topic of PIAA
being improperly included in the RTKL. . . .
[] 8 . . . [A] screenshot image showing [Requester] the name of the
software program/s in PIAA’s possession, custody or control that can
perform electronic redactions on PDF files and/or other electronic file
types. . . .
(Reproduced Record (R.R.) at 7a-13a (emphasis in original) (footnotes omitted).)
On November 6, 2020, PIAA invoked a 30-day extension of time to respond
to the Request. (Id. at 5a.) On December 7, 2020, PIAA partially denied the
Request, asserting that records responsive to Items 1, 2, 3, 4, 7 and 8 do not exist.
(Id. at 3a-4a.) PIAA responded that it requested records responsive to Item 5 from
its auditors and had not yet received them, but they would be produced upon receipt.
3
(Id. at 4a.) In response to Item 6 of the Request, PIAA directed Requester to the
IRS’s publicly available website. (Id.) PIAA also noted a general objection to the
Request, stating that PIAA is not a Commonwealth of Pennsylvania
(Commonwealth) authority or entity subject to the RTKL and that it intended to
litigate that issue. (Id. at 3a.)
B. Proceedings Before the OOR and Appeals to This Court
On December 10, 2020, Requester appealed to the OOR, challenging PIAA’s
denial and stating grounds for disclosure of the requested records. (Id. at 1a-2a.)
The OOR invited both parties to supplement the record. On December 21, 2020,
PIAA filed a Motion to Stay Proceedings (Motion), asserting that the instant appeal
should be stayed pending this Court’s consideration of PIAA’s Petition for Review
in the Nature of a Complaint for Declaratory and Injunctive Relief, which it filed
with this Court on December 18, 2020.4 (Id. at 26a-81a.) That same day, the OOR
afforded Requester the opportunity to respond to PIAA’s Motion. (Id. at 19a.) On
December 22, 2020, Requester objected to the Motion, and the OOR denied the
Motion and set forth deadlines for the parties to submit evidence relative to the
appeal. (Id. at 82a-99a.)
On December 30, 2020, PIAA submitted a position statement reiterating its
grounds for denial. (Id. at 106a-32a.) PIAA reasserted that it is not subject to the
RTKL and added that the RTKL’s application to PIAA constitutes unconstitutional
special legislation. (Id. at 110a-22a.) PIAA further argued that the RTKL violates
4
See Pa. Interscholastic Athletic Ass’n, Inc. v. Commonwealth (Pa. Cmwlth., No. 661 M.D.
2020) (wherein PIAA is requesting that this Court declare that PIAA is not subject to the RTKL).
4
PIAA’s equal protection rights under the United States5 and Pennsylvania6
Constitutions and that disclosure of certain banking information would violate its
privacy rights. (Id. at 122a-32a.) In addition, PIAA submitted an affidavit, made
under penalty of perjury, from PIAA’s Executive Director and Open Records Officer
Dr. Robert Lombardi (Dr. Lombardi). (Id. at 134a-41a.) Dr. Lombardi stated, in
relevant part:
30. Request [Item] 7 . . . sought copies of all written communications
between PIAA officials, including legal counsel between January 1,
2020[,] and the date of [Requester’s] submission that discuss the topic
of PIAA being improperly included in the RTKL.
5
Section 1 of the Fourteenth Amendment to the United States Constitution provides, in
relevant part, that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST. amend. XIV, § 1.
6
The equal protection provision found in article III, section 32 of the Pennsylvania
Constitution, also known as the special legislation provision, provides:
The General Assembly shall pass no local or special law in any case which has been
or can be provided for by general law and specifically the General Assembly shall
not pass any local or special law:
1. Regulating the affairs of counties, cities, townships, wards, boroughs or
school districts[;]
2. Vacating roads, town plats, streets or alleys[;]
3. Locating or changing county seats, erecting new counties or changing
county lines[;]
4. Erecting new townships or boroughs, changing township lines, borough
limits or school districts[;]
5. Remitting fines, penalties and forfeitures, or refunding moneys legally
paid into the treasury[;]
6. Exempting property from taxation[;]
7. Regulating labor, trade, mining or manufacturing[;]
8. Creating corporations, or amending, renewing or extending the charters
thereof[.]
Nor shall the General Assembly indirectly enact any special or local law by the
partial repeal of a general law; but laws repealing local or special acts may be
passed.
PA. CONST. art. III, § 32.
5
31. I conducted a thorough search of all PIAA records relating to that
topic and found no responsive records.
32. I am also aware that any communications on that subject would be
limited to me and legal counsel as no other PIAA official was involved
in 2020 in discussion of that issue as of the date of the [R]equest.
33. I am also aware that all communications between me and legal
counsel on that topic in 2020 were oral. There were no 2020 written
communications on that subject prior to submission of the [R]equest.
....
40. PIAA has no responsive records in an electronic format.
41. PIAA receives its legal invoices in a paper format.
42. I have requested electronic records from law firms which [PIAA
has] used but have not received them.
43. There are several thousand pages of such invoices.
44. Once the records arrive, they will need to be redacted.
45. It will take weeks to do so since none of those documents are []
currently in a redacted format and must be created by PIAA.
46. [PIAA’s] standard redaction process involves going through entries
on each printed invoice.
47. I have recently undertaken this task with the same requested records
pursuant to an earlier request by another individual for the same
documents, so I know how long the effort will take. However, those
redacted records were destroyed once the requester informed PIAA that
he would not pay for the costs of reproduction. That destruction
occurred prior to receiving [Requester’s] request. Consequently, I
would need to replicate the process here.
(R.R. at 138a-39a.)
On December 31, 2020, Requester submitted a request to the OOR that the
record remain open for an additional two or three business days. (Id. at 142a.) On
the same day, PIAA submitted an assertion that, because the Requester did not
6
timely respond to any of the issues identified in the denial letter, argument on
assertedly newly raised issues would be untimely and should not be permitted. (Id.
at 144a.) Also, on December 31, 2020, Requester submitted a reply to PIAA’s
submission, stating, in part, that PIAA acted in bad faith. (Id. at 155a.) The OOR
notified the parties that the record would remain open through January 5, 2021. (Id.
at 157a.)
On January 4, 2021, Requester made a submission to the OOR, indicating that
he was asking the Pennsylvania Office of Attorney General (OAG) to ensure the
OAG set forth the Commonwealth’s direct interest in this appeal, which Requester
enclosed in a letter to the OAG. (Id. at 158a-65a.) On January 5, 2021, PIAA
submitted a supplemental position statement, asserting, in part, that any Requester
submission relating to responses presented in PIAA’s December 7, 2020 letter
should be rejected as untimely. (Id. at 167a-72a.) On the same day, Requester
submitted a supplemental position statement, declaring, in part, that “[a]ny and all
redaction arguments not raised [had] been waived” and seeking to have the OOR
issue an advisory opinion finding that PIAA and its counsel acted in bad faith and in
wanton disregard of the law. (Id. at 196a-98a, 201a-09a.)
On January 13, 2021, the OOR granted in part and denied in part Requester’s
appeal, determining that PIAA was subject to the RTKL but declining to make a
finding of bad faith. (Id. at 244a-45a, 254a.) The OOR directed PIAA to provide
responsive records as follows: to the extent the legal invoices existed in electronic
format, they were subject to disclosure; Items 2, 3 and 4 of the Request that existed
in electronic format were subject to disclosure, with PIAA’s bank account numbers
redacted; to the extent that PIAA’s auditors had the records responsive to Item 5 in
electronic format, they were subject to public access, absent PIAA providing a
sufficient evidentiary basis that no responsive records exist; and, as to Item 8, the
OOR would order disclosure of responsive public records within 30 days of the Final
7
Determination. (Id. at 245a-50a; 252a-53a.) As for Item 7, the OOR determined
that PIAA demonstrated that the records requested did not exist. (Id. at 251a.)
On January 15, 2021, Requester petitioned for review of the OOR’s Final
Determination, claiming that the OOR should have ordered disclosure of Request
Item 7 and that PIAA acted in bad faith in denying disclosure of the other withheld
documents. On January 27, 2021, PIAA filed its Petition for Reconsideration, which
the OOR denied on February 5, 2021. On March 4, 2021, PIAA filed a Petition for
Review with this Court, maintaining that it is not subject to the RTKL. Also, that
same day, PIAA filed a Petition for Review challenging the OOR’s denial of its
Petition for Reconsideration, alleging that the OOR’s Chief Counsel violated
PIAA’s procedural due process rights by commingling functions in both filing
Preliminary Objections to PIAA’s Petition for Review in the original jurisdiction
matter and denying PIAA’s Petition for Reconsideration.7
7
“This Court exercises plenary, de novo review of [the] OOR’s [Final D]etermination in
this matter.” UnitedHealthcare of Pa., Inc. v. Pa. Dep’t of Hum. Servs., 187 A.3d 1046, 1052 n.6
(Pa. Cmwlth. 2018).
The OOR has not promulgated any regulations regarding petitions for
reconsideration. In general, however, an agency’s “decision to grant or deny a
request for reconsideration is a matter of administrative discretion and, as such, will
only be reversed for an abuse of discretion.” Fleeher v. Dep[’t] of Transp[.],
Bureau of Driver Licensing, 850 A.2d 34, 36 (Pa. Cmwlth. 2004); Muehleisen v.
State Civ[.] Serv[.] Comm[’n], . . . 443 A.2d 867, 869 ([Pa. Cmwlth.] 1982).
Pa. Tpk. Comm’n v. Elec. Transaction Consultants Corp., 230 A.3d 548, 560 (Pa. Cmwlth. 2020).
Further, “[a] challenge to the constitutionality of legislation poses a question of law, and thus, our
review is plenary and non-deferential.” Pa. Tpk. Comm’n v. Commonwealth, 899 A.2d 1085, 1094
(Pa. 2006).
8
II. DISCUSSION
A. Whether OOR erred in finding the PIAA is subject to the RTKL and
whether its classification as a “state-affiliated entity” constitutes
special legislation and violates equal protection.
We start with the issues presented in PIAA’s two appeals. PIAA first contends
that the OOR erred by finding that it is subject to the RTKL. PIAA argues that,
notwithstanding it being singled out within the RTKL as such, PIAA is not a state-
affiliated entity. PIAA maintains that it is neither a Commonwealth authority nor
Commonwealth entity because PIAA: (1) receives no Commonwealth funding or
tax dollars; (2) has not been granted any powers by the Commonwealth; (3) is not
administered or governed by any Commonwealth personnel; and (4) was not created
by the General Assembly. PIAA asserts that it is no different than a myriad of other
private nonprofit corporations in Pennsylvania with similar members, powers, and
responsibilities.
Moreover, even if PIAA is a “state-affiliated entity,” PIAA claims that its
inclusion within the RTKL as such, when it does not meet the definition established
for the class in which it is allegedly included, is unconstitutional special legislation
and violates PIAA’s equal protection rights. PIAA declares that its inclusion in the
RTKL as a state-affiliated entity bears no rational relationship to the purpose of the
law and improperly discriminates against PIAA.
Requester rejoins that PIAA’s constitutional claims fail because there is a
rational basis to include PIAA in the RTKL. Requester retorts that PIAA performs
state action by regulating high school athletics statewide, is largely funded by
Commonwealth public school districts, and wields tremendous power over the lives
of Commonwealth student athletes. Thus, Requester maintains that there is a
substantial public interest in the transparency of PIAA’s use of public funds.
Preliminarily, “[t]he answer to these arguments, of course, is that [PIAA] is
an agency if the General Assembly says it is. It is axiomatic that[,] within
9
constitutional limits, the General Assembly is empowered to pass legislation[ and]
define the terms of its legislation . . . as it sees fit[.]” Harristown Dev. Corp. v. Dep’t
of Gen. Servs., 614 A.2d 1128, 1131 (Pa. 1992). It is undisputed that the General
Assembly included PIAA as a “state-affiliated entity” for purposes of the RTKL.
See Section 102 of the RTKL, 65 P.S. § 67.102 (“A Commonwealth authority or
Commonwealth entity. The term includes . . . the [PIAA.]”).
Nonetheless, legislation specifically identifying a person or entity may violate
the proscription on special laws found in article III, section 32 of the Pennsylvania
Constitution. Pa. Tpk. Comm’n v. Commonwealth, 899 A.2d 1085, 1094 (Pa. 2006);
Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1088 (Pa. 2003). “[T]he citizens of
Pennsylvania chose to include within the Constitution of 1874 a proscription on
special laws for the very simple and understandable purpose-to put an end to the
flood of privileged legislation for particular localities and for private purposes” and
“to end the practice of favoritism.” Zogby, 828 A.2d at 1088 (quotations omitted).
Our Supreme Court explained that, “[o]ver the years, the underlying purpose of
[a]rticle III, [s]ection 32 has been recognized to be analagous to the federal principles
of equal protection under the law . . . , and thus, special legislation claims and equal
protection claims have been reviewed under the same jurisprudential rubric.” Pa.
Tpk. Comm’n, 899 A.2d at 1094 (citing Zogby, 828 A.2d at 1088). “The common
constitutional principle at the heart of the special legislation proscription and the
equal protection clause is that like persons in like circumstances should be treated
similarly by the sovereign.” Id. (citations omitted).
Even so, “[e]qual protection principles do not, however, vitiate the
Legislature’s power to classify, which necessarily flows from its general power to
enact regulations for the health, safety, and welfare of the community.” Zogby, 828
A.2d at 1088 (citation omitted). “Nor do they prohibit differential treatment of
persons [or organizations] having different needs . . . , provided the classifications
10
at issue bear a reasonable relationship to a legitimate state purpose”—i.e. the
rational-basis inquiry. Id. (citation omitted). Our Supreme Court has described the
rational-basis inquiry as follows:
The prohibition against treating people differently under the law does
not preclude the Commonwealth from resorting to legislative
classifications, provided that those classifications are reasonable
rather than arbitrary and bear a reasonable relationship to the
object of the legislation. In other words, a classification must rest
upon some ground of difference, which justifies the classification and
has a fair and substantial relationship to the object of the legislation.
Curtis v. Kline, 666 A.2d 265, 268 (Pa. 1995) (citations omitted) (emphasis added).
In pursuing this analysis, we remain cognizant that a duly enacted statute is
presumed valid and will not be declared unconstitutional unless it “clearly,
palpably[,] and plainly violates the Constitution.” Purple Orchid, Inc. v. Pa. State
Police, 813 A.2d 801, 805 (Pa. 2002). In seeking to overcome this presumption of
validity, the challenging party bears a heavy burden of persuasion. Dep’t of Transp.
v. McCafferty, 758 A.2d 1155, 1160 (Pa. 2000).
In Harristown, a nonprofit corporation that served as “the largest lessor of
space to the Commonwealth” and received $13 million of revenue in 1 year from the
Commonwealth, brought suit after the enactment of an amendment to The
Administrative Code of 19298 that categorized nonprofit corporations which leased
land to the Commonwealth as state agencies for the purpose of the RTKL.
Harristown, 614 A.2d at 1130. In considering the nonprofit corporation’s argument
that its classification as an agency constituted unconstitutional special legislation
and violated equal protection, our Supreme Court stated:
Plainly, there is a rational basis for the classification.[] Because
Harristown is the largest supplier of rented space to the
Commonwealth, and because the viability of state government depends
8
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 51-732.
11
upon assurance that it will continue to be able to have space for its
various departments and agencies, the Commonwealth needs to be able
to monitor the soundness of Harristown’s business operations and to
avoid impending difficulty which may threaten Harristown’s continued
operation and ability to provide rental space for government operations.
Id. at 1132 (footnote omitted).
In the case sub judice, PIAA contends that it is a nonprofit corporation with
no funding from, control over, or affiliation with the Commonwealth. Requester,
however, points to PIAA’s website as evidence that it is not. According to PIAA’s
website,
[t]he membership of PIAA consists of 1,431 schools, of which 583 are
senior high schools and 594 are junior high/middle schools. Of that
membership, 40 are [c]harter senior high [s]chools, 144 are [p]rivate
senior high [s]chools, 17 are [c]harter junior high/middle schools, and
53 are [p]rivate junior high/middle [s]chools.[9] More than 350,000
students participate in interscholastic athletics at all levels (varsity,
junior varsity, or otherwise) of competition under PIAA jurisdiction,
which placed Pennsylvania sixth among the states for 2017-2018.
Similar associations exist in all 50 states.
....
[M]embers of [PIAA’s] Board of Directors include representatives
of the member junior high/middle schools, the Pennsylvania School
Boards Association (PSBA), the Pennsylvania Association of School
Administrators (PASA), the Pennsylvania Principals Association, the
Pennsylvania State Athletic Directors Association (PSADA), the
Pennsylvania Coaches’ Association (PCA), the Pennsylvania
Department of Education (PDE), one female and one male PIAA-
registered sports’ official, the chairpersons of the Girls’ Athletics and
Private Schools’ Steering Committees, and one female and one male
representative from the Parents’ Advisory Committee. With the
sometime exception of the officials’ and parents’ representatives,
members of the Board of Directors are experienced professional
educators who have background and experience in dealing with high
school athletics.
9
The remaining 1,234 schools (roughly 86% of PIAA’s membership) are public or charter
schools.
12
PIAA About Our Story, https://www.piaa.org/about/story.aspx (last visited Nov. 29,
2021) (emphasis added).
Further, PIAA was formed by a group of high school principals to “eliminate
abuses, establish uniform rules, and place interscholastic athletics in the overall
context of secondary education.” Id. PIAA establishes and enforces rules governing
the eligibility of high school athletes to participate in interscholastic athletics,
including rules for academic performance and attendance; adopts rules for each sport
under its jurisdiction; provides training opportunities for public high school
educators to officiate at contests in which public high schools participate; and
organizes and operates Inter-District Championship Contests, in which public high
schools compete. See id.; (see Requester’s Second Brief (Br.) at 10 n.2).
Accordingly, PIAA is the de facto statewide regulator of high school athletics across
the Commonwealth.
Moreover, our Supreme Court has declared that PIAA’s affairs constitute state
action “in the constitutional sense” for the purpose of due process. Sch. Dist. of City
of Harrisburg v. Pa. Interscholastic Athletic Ass’n, 309 A.2d 353, 356-57 (Pa. 1973).
The Court explained:
[A]ffairs of the PIAA constitute state action. [PIAA] is composed of
all the public high schools in this Commonwealth except those in
Philadelphia. [] PIAA is funded by the payment of membership fees
from public school moneys, and so ultimately by the Commonwealth’s
taxpayers, and from the gate receipts of athletic events between public
high schools.
Id. at 357.
Therefore, as PIAA undertakes state action and is funded primarily by public
school districts, id., the General Assembly’s classification of PIAA as a “state-
affiliated entity” for the purpose of qualifying as an agency under the RTKL has a
rational basis and furthers a legitimate state interest of transparency in PIAA’s use
13
of public funds in a manner that dramatically impacts students’ lives. Just as the
nonprofit corporation’s status in Harristown as the largest supplier of rented space
to the Commonwealth was sufficient under the rational-basis inquiry for the
corporation to be subject to the RTKL, PIAA’s statewide control over high school
athletics and the connection between the funds it receives from its members and the
Commonwealth’s taxpayers is sufficient such that its classification as a “state-
affilated entity” for purposes of the RTKL is reasonable. Thus, it cannot be said that
this classification is arbitrary or that it bears no reasonable relationship to the object
of the law. Curtis, 666 A.2d at 268. Therefore, because PIAA meets the definition
established for the class in which it is included, and the RTKL’s classification of
PIAA as a state-affiliated entity is not unconstitutional special legislation and does
not violate PIAA’s equal protection rights, the OOR properly determined that PIAA
is subject to the RTKL.
B. Whether PIAA’s procedural due process rights were violated.
Second, PIAA argues that PIAA’s procedural due process rights were violated
as a result of the OOR’s unconstitutional commingling of functions in one person
who both helped adjudicate the appeal litigated against PIAA and denied PIAA’s
Petition for Reconsideration. Specifically, PIAA contends that, in having its Petition
for Reconsideration decided by the OOR’s Chief Counsel, the OOR violated PIAA’s
due process rights. Thus, PIAA asks this Court to issue an order vacating the denial
of PIAA’s Petition for Reconsideration and remand this matter to the OOR with
instructions to grant reconsideration of the underlying Final Determination and
accept additional evidence.
Requester responds that PIAA fails to show how the OOR’s denial of its
Petition for Reconsideration, which occurred well after the close of the
administrative record, prejudiced PIAA’s ability to present evidence in support of
14
nondisclosure. To the contrary, Requester asserts that the record is clear that PIAA
created this problem for itself by failing to conduct a timely, good faith search and
assessment of the public nature of the responsive records.
The violation of due process through the commingling of adjudicatory and
prosecutory functions was established in Lyness v. State Board of Medicine, 605
A.2d 1204 (Pa. 1992), and clarified in Harmon v. Mifflin County School District,
651 A.2d 681 (Pa. Cmwlth. 1994). This Court has explained:
In Lyness, the State Board of Medicine convened to hear evidence
against a physician accused of sexual misconduct and determined that
formal charges should be lodged and a formal hearing held.
Subsequently, the State Board of Medicine, with many of the same
members participating, reviewed the hearing examiner’s
recommendation and decided to permanently revoke the physician’s
license to practice medicine. Our [S]upreme [C]ourt held that, because
the members of the State Board of Medicine made both the decision
to initiate the professional licensing prosecution and then acted as
the ultimate fact-finder in determining whether a violation had
occurred, they impermissibly commingled their prosecutorial and
adjudicatory functions and violated the physician’s due process
right to a fair and impartial tribunal.
Behm v. Wilmington Area Sch. Dist., 996 A.2d 60, 64 (Pa. Cmwlth. 2010) (emphasis
added).
In Harmon, this [C]ourt recognized that the due process protections
needed in Lyness-type cases are not required in every case.[] We
established a “continuum of due process rights” approach, observing
that, “[t]he type of due process hearing that is required is dependent
upon the forum, the relationship of the parties, the interests at stake
and should be consistent with the goal of reducing the risk of
arbitrary government action.” Harmon, 651 A.2d at 685.
Behm, 996 A.2d at 65-66 (second alteration in original) (emphasis added) (footnote
omitted).
Here,
15
unlike discipline by agencies regulating licenses (Lyness) or employee
terminations for cause (Harmon), [RTKL adjudications] are non-
disciplinary in nature, and, consequently, this matter is controlled by
cases at the opposite end of the due process spectrum. In non-
disciplinary cases, such as teacher suspensions resulting from the
curtailment of educational programs, our courts have determined that
no one is acting in a prosecutorial capacity and that the purpose of such
a hearing is merely “to ensure that the reasons for the [action] existed
and that all procedural requirements were followed.” Callahan v. Mid
Valley Sch[.] Dist[.], 720 A.2d 815, 817 (Pa. Cmwlth. 1998) . . . ; see
also Krupinski v. Vocational Tech[.] Sch[.], E[.] Northampton [Cnty.],
. . . 674 A.2d 683 ([Pa.] 1996).[] . . . [The RTKL adjudication] was a
similar, non-disciplinary [adjudication], the sole purpose of which was
to [determine whether the Requester was entitled to disclosure of the
requested documents].
Behm, 996 A.2d at 66 (footnote omitted). Accordingly, we conclude that OOR’s
Chief Counsel did not impermissibly commingle functions in this case and,
therefore, that the OOR did not violate PIAA’s procedural due process rights.
C. Whether the OOR erred in granting unredacted access to PIAA’s legal
invoices and not providing PIAA additional time.
PIAA next contends that the OOR erred by granting unredacted access to
PIAA’s legal invoices and by not providing PIAA additional time to provide a
significant volume of documents that required redaction. PIAA asserts that, despite
Requester’s agreement that redactions would be necessary and that a line-by-line
analysis of legal invoices would need to be performed for privileged content, the
OOR granted access to unredacted legal invoices without even inquiring into the
need for redactions or performing an in camera review.
Requester rejoins that this Court should reject PIAA’s request for an
additional opportunity to present new evidence in support of nondisclosure as
contrary to the statutory procedures that ensure expeditious access to public records.
Requester declares that PIAA has offered no explanation as to why it needed more
than two months to retrieve electronic copies of its invoices from the law firm that
16
represented PIAA in a prior case before the OOR. Requester maintains that PIAA’s
refusal to comply with its statutory duties to timely retrieve and assess the public
nature of its legal invoices did not require the OOR to suspend administrative
proceedings indefinitely.
Relative to the legal invoices, the OOR stated:
[W]hile [] PIAA states that the relevant invoices “will need to be
redacted,” [] PIAA presents no evidence in support of any redactions.
Specifically, [] PIAA’s submissions fail to indicate what would need to
be redacted and the basis for such redactions. Notably, although []
PIAA states that it is waiting to receive the responsive invoices in
electronic form from its attorneys, [] PIAA acknowledges that it has in
its possession the invoices in paper format. As such, [] PIAA has had
the opportunity to review the responsive invoices and determine any
necessary redactions. Moreover, the fact that a request may entail
retrieving a large number of documents does not relieve the agency’s
duty to comply with the RTKL. See [] Dep’t of Env[’t] Prot. v. Legere,
50 A.3d 260, 265 (Pa. [Cmwlth.] 2012); see also Ruggiero v.
Lackawanna County, OOR Dkt. AP 2014-0043, 2014 PA O.O.R.D.
LEXIS 157[, filed Feb. 10, 2014] (“[A] request involving the detailed
review of voluminous documents does not relieve the agency of its
requirements to presume the records are open and available and [to]
respond in accordance with the RTKL[.]”); Falcetta v. Grove City Area
Sch. Dist., OOR Dkt. AP 2018-0908, 2018 PA O.O.R.D. LEXIS 908[,
filed July 27, 2018]. Accordingly, to the extent the legal invoices
currently exist in electronic format, they are subject to disclosure. See
[Section 708(a)(1) of the RTKL,] 65 P.S. § 67.708(a)(l).
(Final Determination at 8-9; R.R. at 246a-47a (11th and 12th alterations in original).)
Section 708(a)(1) of the RTKL provides: “The burden of proving that a record
of a Commonwealth agency or local agency is exempt from public access shall be
on the Commonwealth agency or local agency receiving a request by a
preponderance of the evidence.” 65 P.S. § 67.708(a)(1). Here, PIAA submitted Dr.
Lombardi’s affidavit, stating, in relevant part:
40. PIAA has no responsive records in an electronic format.
41. PIAA receives its legal invoices in a paper format.
17
42. I have requested electronic records from law firms which [PIAA
has] used but have not received them.
43. There are several thousand pages of such invoices.
44. Once the records arrive, they will need to be redacted.
45. It will take weeks to do so since none of those documents are []
currently in a redacted format and must be created by PIAA.
46. [PIAA’s] standard redaction process involves going through entries
on each printed invoice.
47. I have recently undertaken this task with the same requested records
pursuant to an earlier request by another individual for the same
documents, so I know how long the effort will take. However, those
redacted records were destroyed once the requester informed PIAA that
he would not pay for the costs of reproduction. That destruction
occurred prior to receiving [Requester’s] request. Consequently, I
would need to replicate the process here.
(R.R. at 139a-40a.)
Although not specifically averred, PIAA represented that the invoices contain
privileged information based on its repeated references to redaction. (See R.R. at 3a
(PIAA Response #1) (“All such records, if they exist, must be redacted prior to
production[].”); see also R.R. at 139a (Dr. Lombardi Affidavit ¶44) (“Once the
records arrive, they will need to be redacted.”).) Further, it is also apparent to this
Court that Requester expected the invoices to be redacted upon disclosure. (See R.R.
at 7a (Request Item 1) (“Using the cheapest redaction (if necessary . . . .)”); see also
R.R. at 14a-15a (Requester’s Position Statement) (“My position is that any
redactions (which are not admitted is necessary) on electronic records would need
to be performed electronically . . . .”) (“Put another way, it is not a ‘necessarily
incurred’ cost to print electronic records onto paper in order to redact or copy
them.”).)
18
Thus, this Court is satisfied that PIAA has demonstrated that it is more likely
than not that the legal invoices contain privileged information. See Moore v. Off. of
Open Recs., 992 A.2d 907 (Pa. Cmwlth. 2010). Accordingly, the OOR’s Final
Determination directing disclosure of the legal invoices is affirmed as modified. To
the extent the legal invoices currently exist in electronic format, PIAA is directed to
produce the redacted legal invoices to Requester with an accompanying privilege
log explaining why a privilege applies to each redacted entry.10
D. Whether OOR erred by permitting the record access provisions of the
RTKL to supersede the Nonprofit Law.
Fourth, PIAA argues that the OOR erred by permitting the record access
provisions of the RTKL to supersede the Nonprofit Law. Specifically, PIAA
contends that the RTKL provides an exemption for disclosure of records where such
disclosure conflicts with other laws. PIAA declares that it is a nonprofit corporation
subject to the Nonprofit Law, and, therefore, it is restricted thereby to only providing
its records to its members and board members, and only for proper purposes. PIAA
claims that the RTKL removes those limitations on PIAA and treats it differently
than every other comparable nonprofit corporation in Pennsylvania.
In response, Requester argues that no provision in the Nonprofit Law conflicts
with the RTKL. Requester asserts that Sections 5508(b) and 5512 of the Nonprofit
Law permit members to access records. See 15 Pa.C.S. §§ 5508(b), 5512. Requester
retorts that PIAA argues the inverse, that the General Assembly intended all
10
“[This Court’s] standard of review is de novo[,] and [] its scope of review is broad or
plenary when it hears appeals from determinations made by appeals officers under the RTKL.”
Bowling v. Off. of Open Recs., 75 A.3d 453, 477 (Pa. 2003). Pursuant to Bowling, rather than
remand to the OOR to direct PIAA’s disclosure of the redacted legal invoices, this Court will retain
jurisdiction for that purpose only. But see Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399 (Pa.
Cmwlth. 2013) (wherein this Court remanded to the OOR because the OOR summarily dismissed
an appeal rather than addressing the issues). Here, because the OOR reviewed the evidence and
addressed the issues, this Court has discretion to retain jurisdiction.
19
corporate records to be private. Requester maintains that neither of these provisions
deem nonprofit corporate records confidential.
Section 305(a)(3) of the RTKL provides, in relevant part:
A record in the possession of a Commonwealth agency or local agency
shall be presumed to be a public record. The presumption shall not
apply if:
....
(3) the record is exempt from disclosure under any other [f]ederal or
[s]tate law or regulation or judicial order or decree.
65 P.S. § 67.305(a)(3). Section 306 of the RTKL states: “Nothing in this act shall
supersede or modify the public or nonpublic nature of a record or document
established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 P.S.
§ 67.306. Section 102 of the RTKL defines a “public record” as “[a] record,
including a financial record, of a Commonwealth or local agency that . . . is not
exempt from being disclosed under any other [f]ederal or [s]tate law or regulation or
judicial order or decree[.]” 65 P.S. § 67.102.
This Court has held: “In order to constitute an exemption under Section
305(a)(3) of the RTKL, the [] statute must expressly provide that the record sought
is confidential, private, and/or not subject to public disclosure.” Ali v. Phila. Plan.
Comm’n, 125 A.3d 92, 99-100 (Pa. Cmwlth. 2015). Section 5508(b) of the
Nonprofit Law permits “[e]very member . . . a right to examine . . . the membership
register, books and records of account, and records of the proceedings of the
members, directors and any other body[.]” 15 Pa.C.S. § 5508(b). Section 5512(a)
of the Nonprofit Law permits,
[t]o the extent reasonably related to the performance of the duties of the
director, . . . a director of a nonprofit corporation . . . to inspect and copy
corporate books, records and documents and, in addition, to inspect[]
and receive information regarding, the assets, liabilities and operations
of the corporation and any subsidiaries of the corporation incorporated
20
or otherwise organized or created under the laws of this Commonwealth
that are controlled directly or indirectly by the corporation[.]
15 Pa.C.S. § 5512(a). Because the above-quoted sections of the Nonprofit Law do
not state that nonprofit corporate records are “confidential, private, and/or not
subject to public disclosure,” they are not exempt from disclosure under the RTKL.
Ali, 125 A.3d at 100. Accordingly, the OOR properly determined that the Nonprofit
Law did not preclude disclosure of PIAA’s records.
E. Whether PIAA failed to conduct a good faith search.
Turning now to the issues presented in Requester’s Petition for Review,
Requester first argues that PIAA failed to conduct a good faith search and, therefore,
acted with the requisite bad faith to support an award of statutory penalties and
attorney fees. Specifically, Requester contends that “PIAA has effectively nullified
the RTKL’s expeditious access procedures by refusing to comply with its duties to
conduct a good faith search for and to assess the public nature of responsive financial
records in a timely manner.” (Requester’s First Br. at 16.) Requester submits that
“[t]he failure of an agency to comply with its duties under the RTKL constitutes bad
faith.” (Id.) Therefore, Requester asserts that this Court should order “PIAA to
perform a good faith search for all responsive records, including records responsive
to Request Item 7,[11] impose civil penalties in the amount of $1,500.00 per [] record
withheld, and award Requester attorney fees and costs.” (Id. at 16-17.)
PIAA rejoins that, even though it asserted a good faith legal basis that it is not
subject to the RTKL, it nevertheless complied with the RTKL by: timely issuing an
extension notice under Section 902 of the RTKL, 65 P.S. § 67.902; timely
responding to the Request in accordance with Section 901 of the RTKL, 65 P.S.
11
Request Item 7 will not be considered with regard to the issue of PIAA’s bad faith. See
infra pp. 25-27.
21
§ 67.901; repeatedly making timely submissions in accordance with the Appeals
Officer’s multiple deadlines; timely filing its Petition for Reconsideration; and
timely petitioning for review of the Final Determination and the denial of its
Petition. In addition, PIAA retorts that it provided Requester with records
responsive to Request Items 5 and 8 well in advance of the 30-day deadline to do so.
PIAA asserts that, because it performed its mandatory duties under the RTKL, this
Court should reject the request for an award of attorney fees or civil penalties.
Section 1304(a) of the RTKL provides:
If a court reverses the final determination of the appeals officer or
grants access to a record after a request for access was deemed denied,
the court may award reasonable attorney fees and costs of litigation or
an appropriate portion thereof to a requester if the court finds either of
the following:
(1) the agency receiving the original request willfully or with wanton
disregard deprived the requester of access to a public record subject to
access or otherwise acted in bad faith under the provisions of this act;
or
(2) the exemptions, exclusions or defenses asserted by the agency in its
final determination were not based on a reasonable interpretation of
law.
65 P.S § 67.1304(a). Section 1305(a) of the RTKL further provides: “A court may
impose a civil penalty of not more than $1,500[.00] if an agency denied access to a
public record in bad faith.” 65 P.S § 67.1305(a).
The Pennsylvania Supreme Court has explained:
It is well[ ]settled that “[j]ust like a private corporation, any
governmental agency or political subdivision, and indeed the
Commonwealth itself can only act or carry out its duties through real
people - its agents, servants or employees.” Moon Area Sch[.] Dist. v.
Garzony, . . . 560 A.2d 1361, 1366 ([Pa.] 1989). Section 901 of the
RTKL places upon an agency the responsibility to “make a good faith
effort to determine if the record requested is a public record . . . and to
22
respond as promptly as possible under the circumstances existing at the
time of the request.” 65 P.S. § 67.901. Section 502(b)(1) [of the
RTKL] provides that the open records officer is the individual who
receives the request and “track[s] the agency’s progress in responding
to requests.” 6[5] P.S. § 67.502(b)(1).
Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 243 A.3d 19, 27 (Pa. 2020) (sixth
alteration in original). The Uniontown Newspapers Court held: “[This] Court did
not err when it determined that [the agency] acted in bad faith at the request stage,
in significant part because the open records officer failed to act with diligence in
response to [the requester’s] request.” Id. at 28.
“[T]here is simply nothing in the RTKL that authorizes an agency to
refuse to search for and produce documents based on the contention it
would be too burdensome to do so.” Such concerns must give way to
the important goal of government transparency, which is the hallmark
of the RTKL.
Id. (quoting Legere, 50 A.3d at 266). “[A] good faith response - either to produce
records or assert an exemption - cannot occur absent a good faith search, followed
by collection and review of responsive records, so an agency has actual knowledge
about the contents of the relevant documents.” Id. at 28-29 (quotation marks
omitted).
This Court has explained:
[T]he purpose of Section 1305 of the RTKL is not to remedy harm to a
party but to penalize conduct of a local agency and to provide a
deterrent in the form of a monetary penalty in order to prevent acts
taken in bad faith in the future. The purpose of Section 1305 of the
RTKL is akin to the purpose of the penalty provision of the Sunshine
Act,[12] which makes it a summary offense for “[a]ny member of any
agency who participates in a meeting with the intent and purpose by
that member of violating this chapter,” and provides that[,] upon
conviction, the member shall pay the costs of prosecution plus a fine
within a defined range, the exact amount of which to be determined by
12
65 Pa.C.S. §§ 701-716.
23
the sentencing authority. 65 Pa.[]C.S. § 714. However, unlike the
penalty provision in the Sunshine Act, the focus in Section 1305 of the
RTKL is not on the mental state of the actor but the actions taken by
the agency. Compare Section 1304(a)(1) of the RTKL, 65 P.S.
§ 67.1304(a)(1).
Off. of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1141 (Pa. Cmwlth. 2017).
Here, the OOR concluded:
PIAA properly extended its time to respond to the Request by [30] days,
65 P.S. § 67.902(b)(2), and, ultimately, issued its response in a timely
manner. Moreover, while the OOR disagrees with the PIAA’s legal
arguments regarding whether it is subject to the RTKL, the OOR
declines to make a finding of bad faith on that basis. Likewise, []
PIAA’s assertion that certain records do not exist, or that responding to
portions of the Request “would significantly impact on [sic] the
operations of PIAA” does not rise to the level of bad faith.
(R.R. at 254a.) Although the OOR reversed PIAA with respect to the legal invoices,
this Court granted PIAA the opportunity to redact the legal invoices as necessary.
See supra pp.18-19. Further, this Court’s decision herein is the first dispositive
ruling on the issue of whether the RTKL applies to PIAA. See supra pp. 6-9.
Moreover, PIAA did, in fact, request the invoices from the appropriate law firms.
(See R.R. at 139a (Dr. Lombardi Affidavit ¶42) (“I have requested electronic records
from law firms which we have used . . . .”).) Under the circumstances, this Court
holds that PIAA’s actions do not constitute bad faith.13 Accordingly, the imposition
of a civil penalty is not warranted, and Requester is not entitled to attorney fees and
costs.
Given this Court’s disposition with respect to the legal invoices (Request Item 1), the
13
issue of PIAA’s bad faith relative to said disclosure will remain open.
24
F. Whether PIAA failed to prove that it does not have possession,
custody, or control of any records responsive to Request Item 7.
Finally, Requester argues that PIAA failed to prove that it does not have
possession, custody, or control of any records responsive to Request Item 7.
Specifically, Requester contends that the OOR did not offer any analysis of how
PIAA’s evidence was sufficient to establish the non-existence of records. Rather,
Requester claims that the OOR simply restated several paragraphs of Dr. Lombardi’s
affidavit and held that a sworn affidavit may be sufficient to confirm the non-
existence of records.
In addition, Requester asserts that the OOR failed to address Requester’s
contentions that PIAA presented no evidence that Dr. Lombardi asked any of the 32
members of PIAA’s governing Board of Directors to search for responsive records.
Further, Requester claims that Dr. Lombardi’s assertion that he conducted a
thorough search of all PIAA records relating to that topic and found no responsive
records is ambiguous as to the nature and extent of the search. Requester maintains
that Dr. Lombardi cannot confirm that communications only took place between
himself and legal counsel if he did not speak to any of the other 32 members of
PIAA’s Board of Directors.
PIAA argues that, under the RTKL, the preponderance of the evidence
standard applies, which is the lowest evidentiary standard tantamount to a more
likely than not inquiry. See Delaware County v. Schaefer ex rel. Phila. Inquirer, 45
A.3d 1149 (Pa. Cmwlth. 2012). PIAA retorts that the OOR correctly determined
that it was “more likely than not” that no responsive records exist based on the
evidence provided by PIAA. PIAA asserts that when an agency “submits a sworn
or unsworn affidavit that it was not in possession of the record, it satisfies the
agency’s burden in demonstrating the non-existence of the record in question.”
Moore, 992 A.2d at 909.
25
PIAA declares that Request Item 7 sought written communications exchanged
between PIAA officials (and between PIAA officials and counsel) between January
1 and November 2, 2020, that discuss the topic of PIAA being improperly included
in the RTKL. In accordance with Moore, PIAA argues that it presented Dr.
Lombardi’s affidavit, which provides details from the highest official at PIAA, under
penalty of perjury, concerning his personal knowledge regarding discussions of the
specific subject matter listed in Request Item 7 and how those discussions were
limited solely to himself and legal counsel. Accordingly, PIAA claims that it
demonstrated that it was “more likely than not” that no records responsive to Request
Item 7 exist. Id.Concerning Request Item 7, PIAA provided Dr. Lombardi’s affidavit,
wherein he stated, in relevant part:
30. Request [Item] 7 . . . sought copies of all written communications
between PIAA officials, including legal counsel between January 1,
2020[,] and the date of his submission that discuss the topic of PIAA
being improperly included in the RTKL.
31. I conducted a thorough search of all PIAA records relating to that
topic and found no responsive records.
32. I am also aware that any communications on that subject would be
limited to me and legal counsel as no other PIAA official was involved
in 2020 in discussion of that issue as of the date of the [R]equest.
33. I am also aware that all communications between me and legal
counsel on that topic in 2020 were oral. There were no 2020 written
communications on that subject prior to submission of the [R]equest.
(R.R. at 138a.) The OOR explained:
Under the RTKL, a sworn affidavit may serve as sufficient evidentiary
support for the non[-]existence of records. See Sherry [v. Radnor Twp.
Sch. Dist.], 20 A.3d [515,] 520-21 [(Pa. Cmwlth. 2011)]; Moore, 992
A.2d at 909. Based on the evidence provided--the affidavit of []
PIAA’s Executive Director and Open Records Officer, who would have
the capacity to search for responsive records--the PIAA has
26
demonstrated that it conducted a good faith search for responsive
records. See Hays v. Pa. State Police, OOR Dkt. AP 2015-0193, 2015
PA O.O.R.D. LEXIS 294[, filed Mar. 18, 2015] (finding that an agency
conducted a good faith search by “contact[ing] the [b]ureau most likely
to possess responsive records, and . . . explain[ing] why that [b]ureau is
most likely to possess those records”); Yaldm v. Municipality of
Monroeville, OOR Dkt. AP 2017-1946, 2017 PA O.O.R.D. LEXIS
1685[, filed Nov. 22, 2017]. Accordingly, [] PIAA has met its burden
of proof that it does not possess records responsive to Item 7 of the
Request. See Hodges [v. Pa. Dep’t of Health], 29 A.3d [1190], 1192
[(Pa. Cmwlth. 2011)].
(R.R. at 251a.)
In Sherry, this Court considered whether a requester had the right to depose
or cross-examine witnesses who submitted affidavits in connection with a RTKL
dispute before the OOR. In holding that the trial court did not err in refusing to
permit the requester to depose or cross-examine the affiants, we determined that
there was “no error on [the] OOR’s part to the extent that it relied upon the affidavits
in rendering its final determination.” Sherry, 20 A.3d at 521; see also Moore, 992
A.2d at 909 (holding that both sworn and unsworn affidavits stating that the
requested record did not exist were sufficient to carry the agency’s burden of
demonstrating the non-existence of the record in question). The same is true in the
present case. Dr. Lombardi’s affidavit states that he conducted a thorough search
for the items requested and that such did not exist. We perceive no error in the
OOR’s reliance on Dr. Lombardi’s affidavit as it pertains to Item 7 of the Request,
id., and, accordingly, we affirm the OOR’s determination that records responsive to
Item 7 of the Request do not exist.
27
III. CONCLUSION
For all of the above reasons, the OOR’s Final Determination is affirmed as
modified with respect to Request Item 1.
_________________________________
RENÉE COHN JUBELIRER, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Simon Campbell, :
Petitioner :
:
v. :
:
Pennsylvania Interscholastic :
Athletic Association (Office of :
Open Records), : No. 25 C.D. 2021
Respondent :
Pennsylvania Interscholastic Athletic :
Association, Inc., :
Petitioner :
:
v. :
:
Simon Campbell (Office of : No. 107 C.D. 2021
Open Records), : No. 170 C.D. 2021
Respondent :
ORDER
NOW, November 30, 2021, the Office of Open Records’ (OOR) January 13,
2021 Final Determination is AFFIRMED as MODIFIED with respect to Simon
Campbell’s (Requester) request for legal invoices that were paid by Pennsylvania
Interscholastic Athletic Association (PIAA) to any and all attorneys/law firms
between the dates of January 1, 2012, and the date of the request (legal invoices).
To the extent they exist in electronic format, PIAA is directed to produce redacted
copies of the legal invoices and an accompanying privilege log to Requester within
30 days of the exit date of this Order. The OOR’s February 5, 2021 denial of PIAA’s
Petition for Reconsideration is AFFIRMED.
Jurisdiction retained.
_________________________________
RENÉE COHN JUBELIRER, Judge