Pennsylvanians for Union Reform v. Pa. Dep't of State , 2016 Pa. Commw. LEXIS 232 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvanians for Union Reform, :
Petitioner :
:
v. : No. 1852 C.D. 2015
: Argued: March 7, 2016
Pennsylvania Department of State, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: May 23, 2016
Pennsylvanians for Union Reform (PFUR), a nonprofit corporation, petitions
for review of a Final Determination of the Office of Open Records (OOR), which
denied in part and dismissed as moot in part PFUR’s appeal from the decision of
the Pennsylvania Department of State (Department) granting PFUR’s Right-to-
Know Law (RTKL)1 request (Request) for voter registration information in
accordance with what is commonly referred to as the Pennsylvania Voter
Registration Act2 (Voter Registration Act) and the Department’s regulations
thereunder, which have different access provisions than the RTKL.3 PFUR argues
that a requester may use whatever law it deems appropriate to access public
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
25 Pa. C.S. §§ 1101-1906.
3
Bureau of Commissions, Elections and Legislation Regulations, 4 Pa. Code §§ 141.1-
191.4.
records and, where it requests records pursuant to the RTKL, the agency must
process the entire request under the access provisions of the RTKL. Because the
RTKL specifically provides that the RTKL does not apply where access to the
records is otherwise provided by law, we affirm.
Background
On June 15, 2015, PFUR submitted a standard request form to the
Department, pursuant to the RTKL and “not . . . under any other law,” along with
an affirmation4 seeking voter registration and candidate information. (R.R. at 7a,
8a, 13a.) The request expressly stated that PFUR was not seeking the public
information list, known as the full voter export. (R.R. at 11a.) PFUR sought four
specific items in the Request,5 however, only the following three items remain at
issue in this appeal:
(1) [Q]uery and extract the following information from the SURE
system and send it to PFUR in manipulable electronic database
medium: The full names and associated home or mailing addresses
and full dates of birth of all Public Registered Voters in all counties in
4
In the affirmation, PFUR’s President, on behalf of PFUR and subject to the penalties of
Section 4904 of the Crimes Code, 18 Pa. C.S. § 4904, affirmed “that any information obtained
from the records requested . . . will not be used for commercial or other purposes, except
purposes related to elections, political activities[,] and law enforcement” and “that PFUR will not
publish any of the released information on the Internet.” (R.R. at 13a (footnote omitted).)
Despite its contents, the affirmation was not completed “on a form prescribed by the
Department.” 4 Pa. Code § 183.14(b)(5).
5
PFUR also requested copies of “Candidate Affidavits for the six (6) remaining
candidates in the race for Pennsylvania Supreme Court (David Wecht, Christine Donohue, Kevin
M. Dougherty, Anne Covey, Michael George, [and] Judith F. Olson).” (R.R. at 12a.) However,
the OOR dismissed as moot the appeal as to these affidavits because the Department provided
them to PFUR during the course of the appeal. (Final Determination at 7, R.R. at 87a.) PFUR
does not challenge this on appeal.
2
the Commonwealth of Pennsylvania who have a first name of
“Barbara”, “David”, “James”, “Jennifer”, “John”, “Linda”, “Lisa”,
“Mary”, “Michael”, “Robert”, “Susan”, or “William” [(Requested
Item 1)];
...
(2) [S]end the following information to PFUR in manipulable
electronic database medium: The Philadelphia County Voter List
[(Requested Item 2)];
...
(3) [A] screen shot/screen print copy of the following identified
citizens’ voter registration information in the SURE system (i.e.
name/address/date of birth/political party registration) [of]: . . .
Thomas W. Scott [(Name, Home Address, and Date of Birth),] . . .
Wagdy V. Abdelshaheed [(Name and Birth Year),] . . . Korri J. Brown
[(Name and Birth Year), and] . . . Richard E. Burridge [(Name and
Zip Code) (Requested Item 3)].
(R.R. at 11a-12a (footnote omitted).)
Pursuant to Section 902(b)(2) of the RTKL, 65 P.S. § 67.902(b)(2), the
Department, via letter to PFUR, extended its deadline to respond by 30 days due to
the extent and nature of PFUR’s Request and indicated that it would include the
estimated or actual fees in its subsequent response once the records became
available. (R.R. at 21a-22a.) On July 22, 2015, the Department granted PFUR’s
request, provided that PFUR complete the Department’s “Request for Voter Lists
from the Department of State” form, which requires the requester to affirm that the
records would not be used for purposes unrelated “to elections, political activities
and law enforcement,” and obligates the requester to present the Department with
proper identification and to pay the applicable fee of $20.00 before receiving the
records, as mandated by the Voter Registration Act and the Department’s
regulations. (R.R. at 25a-28a.) Upon its receipt of the required information from
PFUR, the Department stated that it would process the Request pursuant to
3
Sections 306 and 3101.1 of the RTKL, 65 P.S. §§ 67.306, 67.3101.1, and provide a
copy of the public information list, known as the full voter export, to PFUR. (R.R.
at 25a-26a.) In its response, the Department informed PFUR that the full voter
export contains “all of the information sought in a fully manipulated electronic
format wherein [PFUR] can perform [] simple quer[ies] for any . . . information [it]
seek[s].” (R.R. at 26a.)
On July 28, 2015, PFUR appealed to the OOR challenging the Department’s
“grant” of access to the requested records.6 The OOR invited the parties to
supplement the record and directed the Department to notify third parties of their
ability to participate in the appeal. Neither party requested a hearing. In its appeal,
PFUR argued, inter alia, that as a corporation, it could not produce the proof of
identification required by the Voter Registration Act and objected to any third
party notification. (R.R. at 37a-38a.) On August 6, 2015, the Department timely
submitted a Brief in Opposition to Appeal and the affidavit of Jonathan Marks,
Commissioner of the Bureau of Commissions, Elections and Legislation. In
response, PFUR submitted its Counter-Statement of the Issues. PFUR then sent its
“final brief” to the Department, in which it argued, generally, that the Department
acted arbitrarily in following the requirements for access set forth in the Voter
Registration Act and the Department’s regulations. (R.R. at 80a.)
In his affidavit, Commissioner Marks attested that the full voter export,
otherwise known as the public information list, which is available electronically,
“contains all of the information [requested by PFUR],” and “[t]he Department
regularly makes this list available pursuant to the applicable election and voter
6
PFUR appealed the Department’s decision through two emails sent on July 28, 2015;
the first at 3:50 p.m. and the second at 5:49 p.m. (R.R. at 35a-38a.)
4
registration laws and regulations.” (R.R. at 67a.) Commissioner Marks described
the purposes for which voter records are conditionally made available to the public
and the unique nature of these records, and he acknowledged the General
Assembly’s enactment and the Department’s promulgation of “reasonable
safeguards to ensure that [voter registration] information is not used improperly.”
(R.R. at 67a.)
The OOR issued its Final Determination denying in part and dismissing as
moot in part PFUR’s appeal with regard to the requested voter registration
information and the Department’s conditional grant of access to those records.
(R.R. at 81a, 85a-87a.) The OOR determined that “the Department [] established
that it may withhold the responsive records [(Requested Item 1 and 2)] unless and
until [PFUR] complies with the applicable provisions of the [Voter Registration]
Act . . . and the Department[’s] regulation[s.]” (R.R. at 86a (citations omitted).)
Relying on Commissioner Marks’ affidavit, the OOR found that because
Requested Item 3 was “available through ‘publicly accessible electronic means,’
the Department [] met its obligations under the RTKL,” and denied the appeal as to
that item. (R.R. at 86a (citing Section 704(a) of the RTKL, 65 P.S § 67.704(a)).)
On September 9, 2015, PFUR petitioned for reconsideration of the OOR’s Final
Determination. The OOR did not act on the petition for reconsideration. This
petition for review by PFUR followed.7
7
In reviewing a final determination of the OOR, this Court “independently reviews the
OOR’s orders and may substitute its own findings of facts for [those] of the agency.” Bowling v.
Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) (en banc), aff’d, 75 A.3d 453 (Pa.
2013). As we are not limited to the rationale offered in the OOR’s decision, we enter narrative
findings and conclusions based on the evidence, and we explain our rationale. Id. at 820. Our scope
of review on a question of law under the RTKL is plenary. Allegheny County Department of
Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1029 n.3 (Pa. Cmwlth. 2011).
5
On appeal, PFUR argues that the OOR erred in affirming the Department’s
decision and misinterpreted Section 3101.1 of the RTKL because no conflict exists
between the RTKL and the Voter Registration Act. Since PFUR requested the
items at issue under the RTKL and followed all of the RTKL’s statutory
requirements for obtaining those documents, PFUR contends that the Department
“may not dictate in an arbitrary or discriminatory fashion what law a requester may
use to access public records” or “condition access to such records on compliance
with a different statute,” and “the OOR cannot enforce stricter access provisions of
another law or regulation.” (PFUR’s Br. at 22, 24, 26.) PFUR contends that the
General Assembly did not intend the Voter Registration Act and corresponding
regulations to be the exclusive means by which requesters may access that
information, and therefore, the Department may not condition access to the
requested voter registration information upon PFUR’s compliance with the Voter
Registration Act and the Department’s regulations.
PFUR also argues that the OOR abused its discretion by determining that the
Department granted access to the specific records requested by PFUR.
Specifically, PFUR asserts that the Department did not grant access to the records
requested because it “attempt[ed] to narrow PFUR’s request to records [] available
only under the Voter Registration Act.” (PFUR’s Br. at 16.) PFUR maintains that
under the RTKL, the Department must perform the query PFUR requested, provide
only the specific records resulting from that query, and those results had to be in
the medium requested by PFUR. (PFUR’s Br. at 17-18.)
In response, the Department argues that the RTKL, the Voter Registration
Act, and the Department’s regulations must be construed together. The
Department argues, inter alia, that “the method of accessing the [requested voter
6
registration] information are ‘otherwise provided by law,’” and that Section 1404
of the Voter Registration Act, 25 Pa. C.S. § 1404, and Section 183.14 of the
Department’s regulations, 4 Pa. Code § 183.14, govern that access. (Department’s
Br. at 12.) The Department contends that, pursuant to Sections 306, 701, 703, and
3101.1 of the RTKL, the RTKL “specifically preserved the provisions of other
laws and regulations that speak to the availability of agency records.”8
(Department’s Br. at 10-11.) Specifically, the Department maintains that where
the RTKL conflicts with the access provisions of another state law, the state law
supersedes the RTKL. (Department’s Br. at 11, 14-15.) The Department also
argues that it complied with the Request by agreeing to provide PFUR with access
to the requested information in a manipulable electronic format, known as the full
voter export, in accordance with the Voter Registration Act and the Department’s
regulations. Essentially, PFUR could receive the information it requested by
completing the Department’s form,9 showing identification, and paying $20.00.
8
65 P.S. §§ 67.306 (providing that “[n]othing in th[e RTKL] shall supersede or modify
the . . . nature of a record or document established in . . . State law, regulation or judicial order or
decree”); 67.701(a) (providing that “[u]nless otherwise provided by law,” public record “shall
be accessible for inspection and duplication in accordance with th[e RTKL]” (emphasis added));
67.703 (providing that neither a reason nor an intended use of the records needs to be included in
a written request “unless otherwise required by law” (emphasis added)); and 67.3101.1(see
infra p. 9).
9
The Department’s form requires that individuals inspecting or copying the public
information list provide their name, address, telephone number, a photocopy of proof of
identification, and their signature on the affirmation that the information “will not be used for
commercial or other purposes, except purposes related to elections, political activities and law
enforcement,” and that the information will not be published on the Internet. (R.R. at 28a.)
7
Discussion
This case involves the interpretation and interplay between the RTKL, the
Voter Registration Act, and the Department’s regulations. “[W]hether the RTKL
applies to PFUR’s request [for access to voter registration information] in the first
instance represents a purely legal issue which this Court is authorized to decide[,]”
and “[i]n analyzing this matter, we are guided by the Statutory Construction Act of
1972.” McCord v. Pennsylvanians for Union Reform, ___ A.3d ___, ___ (Pa.
Cmwlth., No. 87 M.D. 2014, filed March 18, 2016), slip op. at 7-8, 12 (quoting
Pennsylvania Gaming Control Board v. Office of Open Records, 103 A.3d 1276,
1284 (Pa. 2014)) (footnote omitted). Pursuant to the Statutory Construction Act of
1972,10
‘[t]he object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly.’ 1
Pa.C.S. § 1921(a). To that end, the general rule is that ‘[w]ords and
phrases [are to] be construed . . . according to their common and
approved usage[,]’ Id. § 1903(a), and ‘[e]very statute [is to] be
construed, if possible, to give effect to all its provisions.’ Id. §
1921(a). The Act further provides, ‘[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.’ Id. § 1921(b).
Only where the operative statutory language is not explicit in
conveying the intent of the General Assembly should courts look
beyond the General Assembly’s words to ascertain its intent. In doing
so, as it becomes necessary, the Act provides that courts may ascertain
such intent by looking to several enumerated considerations,
including, inter alia, ‘[t]he mischief to be remedied [,]’ ‘[t]he object to
be attained[,]’ and ‘[t]he consequences of a particular interpretation.’
Id. § 1921(c). . . . Moreover, the Act explains that parts of statutes
which are in pari materia, i.e., statutory parts which relate to the same
persons or things, are to be construed together wherever possible. Id.
§ 1932.
10
1 Pa. C.S. §§ 1501-1991.
8
Pennsylvania Gaming Control Board, 103 A.3d at 1284 (emphasis in original).
Having set forth the above principles, we turn to the relevant RTKL
provision. Section 3101.1 of the RTKL provides that “[i]f the provisions of th[e
RTKL] regarding access to records conflict with any other . . . State law, the
provisions of th[e RTKL] shall not apply.” 65 P.S. § 67.3101.1 (emphasis
added). Thus, under the plain language of the RTKL, we look to the access
provisions of the Voter Registration Act and the Department’s regulations to
determine whether the RTKL access provisions are in conflict.
Section 1404 of the Voter Registration Act, 25 Pa. C.S. § 1404, governs
public information lists, generally. That section establishes the information
contained in public information lists, the authority of the Secretary to promulgate
regulations pertaining to access to the list, as well as information about copying the
list. 25 Pa. C.S. § 1404(a)-(c). Section 183.14 of the Department’s Regulations, 4
Pa. Code § 183.14, also governs public information lists. That section includes
more specific information about the list’s contents, availability, inspection and
copying, fees, and provides a timeline for processing requests, as well as certain
reasonable safeguards, which must be followed before access to the list will be
granted.11 4 Pa. Code § 183.14(a)-(b) (establishing the information contained in
the list, the time the list is available, and the contents of the Department’s form),
(h) (providing that access to the list may be disrupted occasionally), (i) (prescribing
a timeline for processing requests and that “the Department . . . will distribute the
11
The General Assembly also explicitly provided that certain types of voter registration
information may not be disclosed. 25 Pa. C.S. § 1404(a)(3) (providing items “[t]he [public
information] list may not contain”); 4 Pa. Code § 183.14(c)(1)-(6), (e)-(f) (designating certain
information as confidential, specific categories of persons whose information may not be made
available, and situations in which limited access to confidential information may be granted).
9
public information list . . . for a reasonable fee”), (j) (permitting the Department to
“supply the . . . list in a paper copy or in an electronic format”), and (k) (providing
that “[t]he list may not be published on the Internet”).12
In the Voter Registration Act, the General Assembly established a
comprehensive framework within which the Department is responsible for
compiling, organizing, maintaining, and disseminating voter registration records.
25 Pa. C.S. § 1404; 4 Pa. Code § 183.14. These records include names, addresses,
birth dates, party registration, and voting history. It is the Department that has
been entrusted with the custody, control, and protection of voter registration
information, and the Secretary of the Department who has been delegated the
authority to develop reasonable safeguards in the form of regulations governing the
public’s access to that information. 25 Pa. C.S. § 1404(a)(1). The affidavit of
Commissioner Marks13 states the purposes for which voter registration information
is made available, including “to assist candidates for public office in identifying
constituents and carrying out campaign-related activities[, and to help p]olitical
parties, candidates for public office, political campaigns, and special-interest
groups use the information to identify constituents and carry out election-related
activities.” (R.R. at 67a.) He also explained that due to the “unique nature of the
records, the General Assembly and the Department, . . . have imposed []
12
See supra note 8 (providing sections of the RTKL regarding access to records that
conflict with the Voter Registration Act and the Department’s regulations) and other conflicting
RTKL sections; Section 301(b) of the RTKL, 65 P.S. § 67.301(b) (regarding access to and the
intended use of records); Section 704 of the RTKL, 65 P.S. § 67.704 (providing for electronic or
paper access); Section 705 of the RTKL, 65 P.S. § 67.705 (governing the creation of records);
and Section 1307 of the RTKL, 65 P.S. § 67.1307 (regarding fee limitations).
13
Under the RTKL, unsworn attestations made subject to the penalties of perjury are
considered competent evidence to sustain an agency’s burden of proof. Moore v. Office of Open
Records, 992 A.2d 907, 909 n.4 (Pa. Cmwlth. 2010).
10
reasonable safeguards to ensure that the information is not used improperly.” (Id.)
Commissioner Marks reiterated that those wishing to gain access to such
information must abide by the reasonable safeguards set forth by the Department,
as authorized by the General Assembly, including completing the Department’s
form, presenting proof of identification,14 “stat[ing,] in writing [on a form
prescribed by the Department] that any information obtained from the list will not
be used for purposes unrelated to elections, political activities or law enforcement,”
and paying the reasonable $20.00 fee.15 (R.R. at 67a); 25 Pa. C.S. § 1404(b)(3),
(c)(1)-(2); 4 Pa. Code § 183.14(a), (b)(1)-(5).
We conclude that the RTKL provisions conflict with the access provisions of
the Voter Registration Act and the Department’s regulations, and therefore, the
RTKL’s access provisions do not apply to PFUR’s request for voter registration
14
PFUR maintains that “[a]s a corporation, [it] is a “person” under Pennsylvania law[,]
and [is] thus a [] “[r]equester” under the RTKL.” (PFUR’s Br. at 23 (citations omitted).)
Section 102 of the RTKL defines “[r]equester” as “[a] person that is a legal resident of the
United States and requests a record pursuant to this act. The term includes an agency.” 65 P.S. §
67.102. However, because of its corporate status and inability to produce photo identification,
PFUR argues that it “cannot comply with the [Department’s] prescribed form” to gain access to
the requested records. (PFUR’s Br. at 23-24.) We are unpersuaded by this argument and note
that PFUR’s president filled out an “affirmation” on behalf of PFUR when requesting the
information under the RTKL. There is no evidence that PFUR’s president is not similarly able to
present proof of identification when requesting such records under the Voter Registration Act
and the Department’s regulations.
15
PFUR argues that the permissible fee for the four voter records in Requested Item 3 is
25 cents per page, totaling $1, and that the Department is asking it to pay “twenty times that
amount” for the full voter export the Department agreed to provide. (PFUR’s Reply Br. at 24-
25.) This has been the fee for the type of information requested here since 2006. (See Request
for Voter Lists from the Department of State, R.R. at 28a (stating that “Effective July 12, 2006,
the Full Voter Export is available for a charge of $20.00 for a request for any county or all
counties in the Commonwealth of Pennsylvania).) We also note that PFUR agreed to pay up to
$100 for the requested records. (R.R. at 23a-24a.) Therefore, we disagree that the $20.00 fee is
unreasonable.
11
information. Moreover, the Department’s regulations expressly establish the
manner and medium in which the public information list may be made available
for public inspection and copying to those who request access to it. See 25 Pa.
C.S. § 1404(a)(1) (providing that “[a] commission shall provide for computer
inquiries concerning individual registered electors”), (c)(1) (providing that “[t]he
commission . . . may provide copies in some other form . . .”); 4 Pa. Code §
183.14(j) (providing that “[t]he Department . . . will supply the public information
list in a paper copy or in an electronic format.”) (emphasis added).
Commissioner Marks also attested to the fact that PFUR would be able to access
all the information it sought from the full voter export, or public information list, a
fact that PFUR acknowledged at oral argument. Therefore, we conclude that
PFUR was granted access to the requested voter registration information in
accordance with the Voter Registration Act and the Department’s regulations, and
in a manner and medium in which the Voter Registration Act and the Department’s
regulations explicitly allow. 16
Conclusion
The Voter Registration Act and the Department’s regulations
comprehensively govern the accessibility of voter registration information in
16
PFUR argues that under Section 704(b)(2) of the RTKL, 65 P.S. § 67.704(b)(2)
(requiring agencies to provide printed copies of records to requesters “unwilling or unable to
access [] record[s] electronically”), the Department must provide PFUR with printouts of the
records requested. (PFUR’s Br. at 21.) While this provision of the RTKL does not apply to
PFUR’s request, there is a similar provision applicable to requests under the Voter Registration
Act. See Section 183.14(j) of the Department’s regulations, which provides that “[t]he
Department . . . will supply the public information list in a paper copy or in an electronic
format.” 4 Pa. Code § 183.14(j) (emphasis added). However, PFUR did not request a paper
format.
12
Pennsylvania, and the RTKL expressly provides that it will not apply under such
circumstances. Therefore, the Department may respond to requests for voter
registration information under the RTKL by requiring requesters to comply with
the Voter Registration Act and the Department’s regulations. Accordingly, we
affirm the OOR’s Final Determination.
________________________________
RENÉE COHN JUBELIRER, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvanians for Union Reform, :
Petitioner :
:
v. : No. 1852 C.D. 2015
:
Pennsylvania Department of State, :
Respondent :
ORDER
NOW, May 23, 2016, the Final Determination of the Office of Open
Records entered in the above-captioned matter is AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge