Pennsylvania Office of Attorney General v. Philadelphia Inquirer
2015 Pa. Commw. LEXIS 513
| Pa. Commw. Ct. | 2015Background
- OAG’s RTKL denial sought emails of a personal nature or inappropriate material involving former and current OAG staff from 2005–present.
- Requestor narrowed to pornographic emails, including all recipients in chains and the actual emails from origin.
- OAG denied as non-specific, burdensome, not records, or exempt under Section 708(b)(17)(vi)(A).
- Appeals Officer found pornographic emails could be a public record as an activity of the agency, requiring production.
- Court conducted de novo review of the Appeals Officer’s decision and ultimately held that the requested emails are not records under RTKL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are personal emails under a public email domain public records? | Requestor argues emails document agency activity and are public records. | OAG contends emails do not document agency activity and are not records. | Not public records; emails do not document an agency transaction or activity. |
| Do emails that violate agency policy become records due to agency activity? | Requestor posits policy-violation emails transform into agency activity records. | OAG argues policy violations do not convert private emails into agency records. | Emails violating policy are not records; cannot be disclosed as records under RTKL. |
| Does the non-criminal investigation exemption apply to the requested emails? | Requester implicitly argues exemption may allow disclosure if records exist. | OAG bears burden to show ongoing investigation; lack of supporting evidence weakens exemption. | Exemption not dispositive because records not found to be records; exemption absence is moot. |
Key Cases Cited
- Easton Area School District v. Baxter, 35 A.3d 1259 (Pa.Cmwlth.2012) (emails not automatically records despite use of agency addresses)
- Mollick v. Township of Worcester, 32 A.3d 859 (Pa.Cmwlth.2011) (records depend on documenting a transaction or activity, not location or medium)
- Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa.Cmwlth.2012) (documents must prove or evidence agency transaction or activity)
- Office of Governor v. Bari, 20 A.3d 634 (Pa.Cmwlth.2011) (two-part test for public records: documents a transaction or activity; created/received/retained by agency)
- Johnson v. Pennsylvania Convention Center Authority, 49 A.3d 920 (Pa.Cmwlth.2012) (illustrates scope of public records regarding government services and costs)
- Denver Publishing Co. v. Board of County Commissioners of Arapahoe, 121 P.3d 190 (Colo.2005) (private documents cannot be public records solely by agency computer placement)
- Florida v. City of Clearwater, 863 So.2d 149 (Fla.2003) (nature of the record, not its location, governs public records status)
- Howell Education Association, MEA/NEA v. Howell Board of Education, 287 Mich.App. 228 (2010) (personal emails on school systems' tools not per se public records)
- Schill v. Wisconsin Rapids School District, 327 Wis.2d 572 (Wis. 2010) (contents of personal emails not government business solely due to use of government systems)