L&I v. J. Earley
126 A.3d 355
Pa. Commw. Ct.2015Background
- Requestor (John Earley) sought all 2013 emails involving three named Department employees (Dwyer, McNulty, Van Jura) concerning a Scranton Legal Division color printer and ink cartridges under the RTKL.
- Department denied possession, stating it did not have responsive records; Requestor appealed to the OOR and submitted an affidavit claiming the emails existed on Department servers and that he had read them while employed in the Legal Division.
- The three named employees each submitted sworn affirmations that they searched their individual email accounts and did not possess the requested emails.
- The OOR found the Department had not shown the records did not exist in the Department’s possession, custody, or control because the request sought emails sent by the named individuals regardless of recipient, and the Department did not show whether copies might remain on other employees’ accounts or on mail servers.
- The Commonwealth Court vacated the OOR determination and remanded, holding the Department must search its mail servers and, if no responsive records exist there, file an affidavit to that effect; if records exist, produce them.
Issues
| Issue | Plaintiff's Argument (Earley) | Defendant's Argument (Department) | Held |
|---|---|---|---|
| Whether Department met its burden to prove nonexistence of requested emails | Emails exist on Department servers; Department must search and produce | Affidavits from the three named employees show they do not possess the emails; requiring server-wide attestations from ~7,000 employees is unreasonable | Department must search its mail servers; if records exist, produce them; if not, file an affidavit establishing nonexistence |
| Whether affidavits from custodial employees suffice to show emails do not exist in agency custody | Affidavits alone insufficient because server copies may persist | Affidavits of the three custodians are sufficient to show those individuals lack the messages | Custodial affidavits suffice only to show lack of possession by those individuals; agency must also address server retention to prove nonexistence |
| Scope of agency obligation to search beyond named custodians | Agency must determine if copies exist elsewhere (including servers) when request seeks messages by named senders regardless of recipient | Agency should not be required to obtain attestations from all employees or run exhaustive searches absent specific evidence | Agency is not required to obtain attestations from all employees but must search central servers when reasonable evidence suggests server copies may exist |
| Specificity and reasonableness of RTKL request | Request was specific to emails by named employees about printer/ink in 2013 | Broad request would force impracticable searches across all staff mailboxes | Request sufficiently specific to require server search rather than blanket production from every employee |
Key Cases Cited
- Office of the Governor v. Raffle, 65 A.3d 1105 (Cmwlth. 2013) (scope of appellate review of OOR legal questions)
- Stein v. Plymouth Township, 994 A.2d 1179 (Pa. Cmwlth. 2010) (standards for appellate review)
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (reviewing court may substitute its findings for agency findings)
- Hodges v. Department of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011) (affidavit can establish nonexistence of requested records)
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (agency’s sworn statements can satisfy burden to show non-possession)