Commonwealth, Department of Environmental Protection v. Cole
52 A.3d 541
| Pa. Commw. Ct. | 2012Background
- Cole sought Sunshine Program records from the Department for analysis of rebates and contacted program overseer Bell via email on June 13, 2011 with a detailed data list including recipient name, address, installation details, and provider information.
- Cole stated the data should fall under the Right-to-Know Law and indicated she was not requesting personal contact or financial information, just information about rebate recipients.
- The Department initially responded in July 2011 with an interim notice and then denied the request in August 2011, claiming it did not possess the records in the requested format and could not create or reorganize data to suit the request.
- Open Records granted Cole’s appeal, ordering the Department to provide the records; the Department argued its August 16, 2011 letter was not a proper denial and that it could withhold certain information.
- The Department later issued a September 19, 2011 response indicating it would withhold addresses and other sensitive data under RTKL exemptions and privacy rights, while acknowledging some information could be provided.
- On August 29, 2011, Cole appealed to Open Records arguing that missing azimuth, tilt, and utility data were Department records and that addresses should not be categorically exempt; Open Records found jurisdiction, lack of a proper exemption, and that the Department waived unraised exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Open Records compel disclosure of data existing only in electronic databases? | Cole: data reside in Department databases and must be disclosed in available formats. | DEP: Section 705 allows no creation or reformatting; data do not exist as a discrete record in the requested form. | Yes; pulling data from a database is disclosure, not creation; provide in available format. |
| May the court consider unraised RTKL exceptions on appeal under Bowling? | Cole argues court may consider broader grounds as in Bowling. | DEP argues Bowling allows supplementing records but not adding new legal bases on appeal. | No; cannot raise new legal grounds on appeal; Signature controls. |
| Are rebate recipient addresses subject to disclosure under RTKL? | Cole requests addresses; argues they are not categorically exempt. | DEP relies on RTKL exemptions and privacy rights to withhold addresses. | Addresses may be disclosed where not exempt; suppression denied; guidelines considered to support disclosure. |
| Can Sunshine Guidelines be admitted and relied upon if not originally presented to Open Records? | Cole argues guidelines support disclosure. | DEP seeks suppression of Attachment A as not part of the record. | Guidelines admissible; Bowling allows record enlargement on appeal; suppression denied. |
Key Cases Cited
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) (broad/independent review; supplemental record permitted)
- Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711 (Pa.Cmwlth.1999) (non-disclosure where information exempt; creation not required)
- Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa.Cmwlth.2010) (agency cannot advance new legal grounds for denial on appeal)
- Gingrich v. Pennsylvania Game Commission, 1 A.3d 365 (Pa.Cmwlth.2010) (database extraction can require disclosure in formats available to agency)
- Department of Conservation and Natural Resources v. Office of Open Records, 1 A.3d 929 (Pa.Cmwlth.2010) (accepting additional evidence on RTKL appeal)
- Pennsylvania Gaming Control Board v. Office of Open Records, 48 A.3d 503 (Pa.Cmwlth.2012) (agency cannot waive individual privacy interests; administrative record considerations)