Mollick v. Township of Worcester
2011 Pa. Commw. LEXIS 600
| Pa. Commw. Ct. | 2011Background
- Mollick filed four RTKL requests seeking emails among Worcester Township Supervisors on personal devices/accounts about township business.
- Township denied or limited access; OOR issued determinations that some emails were public records and some privilege-related.
- Trial court reversed OOR on First/Second/Third/Fourth determinations, holding records not in Township possession and not public.
- Appellate court confronted retroactivity, specificity, and whether emails are records of the Township, then vacated/remanded for further RTKL proceedings.
- Court remands to OOR to perform good-faith possession/information analyses and determine public status/exemptions for pre- and post-RTKL emails.
- Procedural posture involves consolidation of appeals and remand to OOR consistent with Silberstein framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| RTKL retroactivity to pre-2009 records | Mollick—RTKL applies to pre-2009 records if requested post-2008. | Township—RTKL not retroactive; pre-2009 records protected absent explicit retroactivity. | RTKL applies to requests after 12/31/2008; not retroactive to pre-2009 creation. |
| OOR sampling of records under Section 703 | OOR properly directed sampling to craft specific requests. | OOR cannot sample; must require agency to interpret a sufficiently specific request. | OOR erred; remanded for Township to determine possession and public status without sampling. |
| Whether emails between Supervisors are records ‘of’ the Township | Two+ Supervisors’ emails about Township business are records of the Township. | Silberstein controls; individual official emails may not be ‘of’ the Township unless authority/ratification exists. | Not controlled by Silberstein; questions of whether records are Township records and possessed must be resolved by good-faith inquiry. |
| Public record status vs. predecisional deliberations | Emails involving deliberation by a quorum are public records under RTKL 708(b)(10)(ii). | Some emails qualify as predecisional deliberations under 708(b)(10)(i)(A) or lack possession. | Remand to determine public status, possession, and exemptions for Third/Fourth Requests; predecisional exemption still possible. |
Key Cases Cited
- Silberstein v. York Twp., 11 A.3d 629 (Pa.Cmwlth.2011) (emails on personal computer may not be ‘of’ the local agency unless authorized/ratified)
- Kaplin v. Lower Merion Twp., 19 A.3d 1209 (Pa.Cmwlth.2011) (RTKL scope of agency response; OOR cannot remedy a deficient request by sampling)
- Pennsylvania State Police v. Office of Open Records, 995 A.2d 515 (Pa.Cmwlth.2010) (OOR not empowered to narrow a request on appeal; agency must respond with specific reasons for denial)
- Bowling v. OOR, 990 A.2d 813 (Pa.Cmwlth.2010) (RTKL remedial nature; exemptions construed narrowly)
- Signature Information Solutions, LLC v. Aston Twp., 995 A.2d 510 (Pa.Cmwlth.2010) (remand appropriate when agency decisions require good-faith open-records inquiry)