Methacton SD v. OOR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Methacton School District, :
Appellant :
:
v. : No. 250 C.D. 2021
: ARGUED: November 15, 2021
Office of Open Records of the :
Commonwealth of Pennsylvania :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 28, 2021
Methacton School District appeals from an order of the Court of Common
Pleas of Montgomery County affirming the final determination of the Office of Open
Records (OOR) that directed the School District to provide Dr. James Mollick
(Requester) with copies of all emails sent and received by specific School District
employees for four discrete one-month time periods. The four employees include
the President of the School District’s Board of School Directors; the Chairman of
the Board’s Property Committee; the Director of Labor Relations and Human
Resources, who is also the interim Right-to-Know Law (RTKL) Officer; and the
Superintendent. The time periods include 11/01/2019 to 11/30/2019; 10/01/2019 to
10/31/2019; 9/01/2019 to 9/30/2019; and 8/01/2019 to 8/31/2019. This case is
controlled by Easton Area School District v. Baxter, 35 A.3d 1259 (Pa. Cmwlth.
2012), where this Court considered nearly the same request language and concluded
that it was sufficiently specific under Section 703 of the RTKL.1 Accordingly, we
affirm.
The pertinent background of this matter is as follows. At the request of the
interim RTKL Officer, the School District’s Information Technology Department
performed a search using the parameters of Requester’s requests. After extraction
from the server, the potentially responsive records were stored in an electronic folder
but not further reviewed. (Jan. 26, 2021, Trial Ct. Decision, Finding of Fact “F.F.”
No. 9.) Subsequently, the School District denied each of the four requests as
“insufficiently specific” under Section 703 of the RTKL stating:
The request was insufficiently specific with regard to a
transaction or activity of the Methacton School District.
See Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette, 119
A.3d 1121 (Pa. [Cmwlth.] 2015). Moreover, the request
did not provide a context by which the request could be
narrowed; the request was solely a fishing expedition for
all emails sent or received by four individuals over a
period of one month with no defied [sic] subject matter.
Id. Here, despite providing a timeframe and naming
specific email accounts, the request failed to specify a
subject matter or transaction/activity of the agency.
(F.F. No. 11) (emphasis in original). Requester appealed.
Following OOR’s consolidation of Requester’s four appeals and
consideration of the parties’ position statements, the OOR issued a final
determination directing the School District to provide all responsive records within
thirty days. The School District’s petition for review to the trial court followed. The
trial court affirmed, rejecting the School District’s argument that the request lacked
1
Act of February 14, 2008, P.L. 6, 65 P.S. § 67.703.
2
sufficient specificity for lack of a specific email subject or search keywords. The
School District’s appeal to this Court followed.
Section 703 of the RTKL provides as follows: “A written request should
identify or describe the records sought with sufficient specificity to enable the
agency to ascertain which records are being requested . . . .” 65 P.S. § 67.703. The
three-part balancing test for considering a challenge to the specificity of a request
requires an examination of the extent to which the request sets forth: (1) the subject
matter of the request; (2) the scope of the documents sought; and (3) the timeframe
relating to the records sought. Borough of Pottstown v. Suber-Aponte, 202 A.3d 173,
179 (Pa. Cmwlth. 2019). Consistent with the definition of “record,”2 “[t]he subject
matter of the request must identify the ‘transaction or activity’ of the agency for
which the record is sought.” Pittsburgh Post-Gazette, 119 A.3d at 1125. Even when
a request is burdensome, it is not deemed overly broad. Dep’t of Env’t Prot. v.
Legere, 50 A.3d 260, 265 (Pa. Cmwlth. 2012).
In the present case, because the requests include a finite timeline and specific
email addresses, there is no dispute that parts two and three of the balancing test
have been satisfied. However, the School District argues that the subject-matter part
has not been met due to Requester’s failure to specify a “transaction or activity.” In
addition, the School District maintains that its good faith effort to segregate
potentially responsive material does not constitute a concession that the requests are
sufficiently specific.
The School District’s position is without merit. There is no bright-line rule
absolutely requiring a requester to precisely identify the subject matter of the
2
Section 102 of the RTKL defines “record” as “[i]nformation, 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.
3
requested record. The absence of a stated subject matter is but one factor to consider
in determining whether the request is sufficiently specific. A requester’s failure to
identify a subject matter may be accorded more or less weight depending upon other
factors. For example, there may be circumstances where a requester cannot identify
a subject matter and that inability may be part of the reasoning behind the request.3
At the end of the day, all that Section 703 of the RTKL requires is that a written
request “identify or describe the records sought with sufficient specificity to enable
the agency to ascertain which records are being requested . . . .” 65 P.S. § 67.703.
By way of illustration, when a request includes limited specific timeframes
and email addresses, a requester’s failure to identify a subject matter may be
accorded less weight in ascertaining whether the request is sufficiently specific. In
Baxter, the requester sought copies of all emails sent and received between
10/01/2010 and 10/31/2010 for the email addresses of nine school board members,
the superintendent, and the general school district but failed to identify the subject
matter of the requested emails. In determining that the request was sufficiently
specific under Section 703 of the RTKL, this Court reasoned: “[T]he request . . . is
limited in terms of the type of record requested, the timeframe and the number of
email addresses.” Baxter, 35 A.3d at 1264. On the other hand, the inclusion of
specific email accounts and timeframes does not necessarily equate to a request
being sufficiently specific. In Mollick v. Township of Worcester, 32 A.3d 859 (Pa.
Cmwlth. 2011), a request for emails transmitted by and between township
supervisors on their personal computers and/or via their personal accounts was found
to be insufficient in the absence of identifying a special subject/activity for the
emails. Commenting on Mollick, this Court observed that “[t]he subject matter
3
The RTKL provides that “[a] written request need not include any explanation of the
requester’s reason for requesting or intended use of the records unless otherwise required by law.”
65 P.S. § 67.703.
4
should provide a context to narrow the search.” Pittsburgh Post-Gazette, 119 A.3d
at 1125.
Moreover, we reject the School District’s argument that its good faith effort
to amass the potentially responsive emails should not act as a concession that the
requests are sufficiently specific and/or that all of those emails constitute records.
While it is true that “we have never held that such identification alone was enough
to satisfy Section 703 of the RTKL[,]” Pittsburgh Post-Gazette, 119 A.3d at 1126
n.8, the School District was able to separate the emails that met the parameters of
the requests. Part of the subject-matter requirement is the ability to locate responsive
documents. As we stated in Baxter, “the request was obviously sufficiently specific
because the [s]chool [d]istrict has already identified potential records included
within the request.” Baxter, 35 A.3d at 1264. Compare Montgomery Cnty. v.
Iverson, 50 A.3d 281, 284 (Pa. Cmwlth. 2012) (en banc) (holding that an agency’s
ability to respond did not render a request specific where the request provided no
timeframe for the emails it sought and did not identify specific individuals’ email
addresses or departments such that there was no context within which the search
could be narrowed). Accordingly, given the requests’ restrictions to limited
timeframes and emails of only four specific persons, as well as the fact that the
School District was able to locate the responsive documents, the absence of a stated
subject matter for the requested emails was not solely determinative of whether the
requests were sufficiently specific under Section 703 of the RTKL.4
4
This Court recently opined that “Baxter does not stand for the proposition that a RTKL
request that is limited to a short timeframe is always, by itself, sufficiently specific.” Keystone
Nursing & Rehab. of Reading, LLC v. Simmons-Ritchie (Pa. Cmwlth., Nos. 1631, 1692, and 1696
C.D. 2018, filed January 3, 2020), appeal denied, (Pa., No. 167 MAL 2020, filed September 16,
2021), slip op. at 40. [An unreported opinion of this Court can be cited for its persuasive value
under Section 414(a) of our Internal Operating Procedures. 210 Pa. Code § 69.414(a).] This
reasoning is consistent with our statement herein that a requester’s failure to specify a stated
5
Further, Requester’s failure to identify the subject matter of the requests did
not alleviate the School District from looking at the face of the emails to ascertain
their status as records, any applicable exemptions, and the presence of any protected
information. Upon receipt of a written record request, Section 901 of the RTKL
requires an agency to “make a good faith effort to determine if the record requested
is a public record, legislative record or financial record and whether the agency has
possession, custody or control of the identified record, and to respond as promptly
as possible under the circumstances.” 65 P.S. § 67.901. At that time, Section
902(a)(1) and (4) of the RTKL requires the open records officer to determine, inter
alia, whether the request for access requires redaction and/or a legal review to
ascertain whether the record is a record subject to access. 65 P.S. § 67.902(a)(1) and
(4). Thereafter, Section 903 of the RTKL requires that an agency’s denial include
“[t]he specific reasons for the denial, including a citation of supporting legal
authority.” 65 P.S. § 67.903.
In summary, “[a]fter obtaining all potentially responsive records, an agency
has the duty to review the records and assess their public nature under Sections 901
and 903 of the RTKL.” Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 185 A.3d
1161, 1172 (Pa. Cmwlth. 2018). “It is axiomatic that an agency cannot discern
whether a record is public or exempt without first obtaining and reviewing the
records.” Id. Here, the School District performed only the first task. However, once
the School District was able to identify and collect the emails that met the criteria
set forth in the requests, it should have conducted the analysis set forth in the RTKL.
As for the adequacy of the School District’s denial and any potential waiver
issues, it is true that an agency’s failure to raise all denial grounds in its denial does
subject matter is but one factor to consider in determining whether the request is sufficiently
specific.
6
not waive other grounds. Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013). However,
an agency is limited to the defenses raised before the fact finder. Levy v. Senate of
Pa., 94 A.3d 436 (Pa. Cmwlth. 2014). As the trial court herein concluded, the School
District waived the right to assert that the requested records were exempt from public
disclosure due to potentially confidential or protected information by not raising it
below. (Trial Ct.’s Conclusion of Law No. 44.) The fact that the School District
stated that there might be protected information buried in the amassed emails was
insufficient. As noted, the School District should have ascertained the emails’ status
as records and reviewed them for the presence of exemptions and protected
information. Consequently, it is simply too late to seek redaction of the emails or to
argue that any of them do not constitute records subject to disclosure.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Methacton School District, :
Appellant :
:
v. : No. 250 C.D. 2021
:
Office of Open Records of the :
Commonwealth of Pennsylvania :
ORDER
AND NOW, this 28th day of December, 2021, the order of the Court of
Common Pleas of Montgomery County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita