Paint Township v. Clark
109 A.3d 796
| Pa. Commw. Ct. | 2015Background
- Requester (board of auditors chair) sought Township cell‑phone contract, detailed bills, message contents, and application/browser data for a phone assigned to Supervisor Vossburg via a RTKL request dated November 28, 2012.
- Township missed the statutory response deadline; OOR granted Requester’s appeal after finding the Township failed to show records didn’t exist.
- Township asserted the publicly funded phone had been ‘‘reset’’ and that Verizon had no retained data after August 30, 2012; the physical phone was kept in the Township safe and later the phone number was privatized while the Township reimbursed the supervisor.
- Trial court ordered the Township to retrieve data from the reset phone (including possible forensic recovery) and to produce redacted records of post‑privatization calls among supervisors about Township business.
- Commonwealth Court affirmed production of post‑privatization supervisor calls as public records but vacated the order forcing forensic retrieval of deleted data, remanding for sworn, focused inspection affidavits about readily accessible ESI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether metadata or other electronic data must be produced where Requester sought application/browser/content data | Requester argued he sought ‘‘all’’ application‑related data and content; deleted data or metadata should be produced if retrievable | Township argued Requester did not ask for metadata specifically and any ESI was deleted or not in its possession | Court: The label "metadata" is immaterial; the key is whether the requested ESI exists. Metadata is part of ESI but here substantive ESI was shown not to exist, so compelled forensic recovery was improper |
| Whether Township must retrieve deleted/reset data by forensic analysis | Requester contended Township should attempt forensic recovery of deleted content from the phone | Township said data did not currently exist, retrieval would require specialists and would amount to creating a record | Court: Absent evidence of bad faith, agency affidavits that records do not currently exist suffice; requiring forensic recreation would compel creation of a record and was vacated and remanded for limited factual affidavits |
| Whether records in possession/control of supervisor after privatization but documenting Township business are public | Requester argued calls/messages among supervisors about Township business remained public even after number privatized and reimbursement paid | Township argued privatized phone/number was personal and thus not subject to RTKL | Court: Communications documenting Township business among supervisors are public records; reimbursement and official role prevent privatization from shielding public records |
| Standard for agency burden to search/produce electronic records held on personal devices | Requester argued Township should produce records or prove nonexistence | Township relied on case law that agencies need not create records and need only produce records in the format they exist | Court: Reaffirmed that an agency need not create records; it must produce existing records in the form available to it and may satisfy burden with affidavits showing nonexistence absent evidence of bad faith |
Key Cases Cited
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (agency need not create records; sworn affidavits that record "does not currently exist" satisfy burden)
- Department of Environmental Protection v. Cole, 52 A.3d 541 (Pa. Cmwlth. 2012) (information in an agency database must be provided in the format in which it exists; agency need not compile a new format)
- Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012) (communications by elected officials about public business on personal devices can be public records)
- Office of the Governor v. Seolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (absent evidence of bad faith, agency explanations for nondisclosure are entitled to deference)