PA OAG v. B. Bumsted, Capitol Reporter Pittsburgh Tribune-Review
2016 Pa. Commw. LEXIS 131
| Pa. Commw. Ct. | 2016Background
- In July 2014 Brad Bumsted (Requestor) sought OAG emails reviewed by Special Deputy Geoffrey Moulton that contain pornographic images sent to or from current/former OAG staff, clarifying the request to records reviewed by Moulton.
- The OAG’s RTK Officer denied the request as not sufficiently specific, argued the emails were not “records” documenting agency activity, and alternatively asserted they were exempt under the RTKL’s non‑criminal investigation exemption.
- Requestor appealed to the OAG Appeals Officer, who concluded the request was specific, that such emails could constitute agency “records” because they evidence misuse of agency resources, and that OAG failed to prove the non‑criminal investigation exemption by affidavit.
- The Appeals Officer ordered disclosure; the OAG petitioned for review to the Commonwealth Court.
- The Commonwealth Court majority reversed, holding personal/pornographic emails exchanged on agency accounts do not document an agency transaction or activity and, even if they did, the request facially implicated an internal review such that the non‑criminal investigation exemption applied.
- A dissent argued the emails were pervasive agency activity (reviewed by a senior deputy) and the OAG did not prove an exemption, so disclosure should be upheld.
Issues
| Issue | Plaintiff's Argument (Bumsted) | Defendant's Argument (OAG) | Held |
|---|---|---|---|
| Whether requested pornographic emails are "records"/public records under RTKL §102 | Emails reviewed by a senior deputy and sent via agency accounts evidence misuse and thus document an agency activity — they are records | Personal nature of the content means they do not document an agency transaction or activity; location on agency system alone does not make them records | Not records: emails of a pornographic/personal nature do not document an OAG transaction or activity and thus are not public records (majority) |
| Whether the request was sufficiently specific under RTKL §703 | Request narrowed to emails reviewed by Moulton and thus sufficiently specific as to custodian/time | OAG argued original requests were vague and broad; invoked lack of specificity | Appeals Officer found specificity; court did not rest its reversal on specificity but on record/exemption analysis |
| Whether requested records are exempt under RTKL §708(b)(17) non‑criminal investigation exemption | OAG failed to present sworn evidence showing an ongoing noncriminal investigation or relevance; conclusory RTK Officer letters insufficient | Disclosure would reveal the progress/result of an internal review; the request itself references Moulton’s review indicating an internal investigation | Exemption applies: because the request seeks records that are part of an internal review, the non‑criminal investigation exemption covers them (majority) |
| Burden of proof to invoke exemption | Agency must prove exemption by a preponderance with evidence (affidavit) | Agency can rely on the face of the request when it expressly references an internal review | Court held the facial reference to Moulton’s review establishes the exemption; agency need not supply additional affidavit in these circumstances (majority) |
Key Cases Cited
- Pennsylvania Office of Attorney General v. Philadelphia Inquirer, 127 A.3d 57 (Pa. Cmwlth. 2015) (held personal emails on agency accounts are not public records merely because they use agency systems)
- Meguerian v. Office of the Attorney General, 86 A.3d 924 (Pa. Cmwlth. 2013) (emails are not agency records solely because they were sent/received on agency accounts)
- Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012) (two‑part test for whether information is a "public record": documents an agency transaction or activity and is created/received/retained in connection with that activity)
- Easton Area School District v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012) (personal emails that do not document an agency transaction are not records despite agency email policy)
- Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012) (definition of a non‑criminal investigation as a systematic or searching inquiry)