142 A.3d 941
Pa. Commw. Ct.2016Background
- Smith Butz, LLC challenged DEP Open Records' dismissal of its RTKL appeal, seeking records related to an August 30, 2010 Notice of Violation for Yeager Impoundment.
- DEP determined it did not possess, custody, or control the requested NOV records and thus denied access, citing nonexistence.
- DEP submitted attestations from Miller, Brown, and Gustafson asserting no NOV was issued and no responsive records exist.
- SB argued an August 30, 2010 NOV existed because eFACTS entries, a May 2015 US EPA study reference, and Range Resources communications referenced it.
- OOR initially allowed supplemental briefing and later required clarifications, ultimately holding no NOV existed and no responsive records were in DEP.
- The court held DEP met the burden of proving nonexistence of the records; SB could submit a new RTKL request if it wished to pursue related records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does DEP prove nonexistence of the NOV records? | SB asserts NOV existed and records are in DEP. | DEP attests no NOV or responsive records exist. | Yes; record shows no NOV and no responsive records exist. |
| May SB expand its request on appeal to include all August 30, 2010 violations? | SB contends broader records should be included. | Agency searches only for NOV as framed; cannot expand on appeal. | No; SB cannot expand the request on appeal; only NOV-related records addressed. |
| Are DEP attestations sufficient to prove nonexistence? | Attestations may be insufficient or conflicting. | Attestations detailing searches and nonexistence are credible and adequate. | Yes; attestations are thorough and credible to prove nonexistence. |
Key Cases Cited
- Hodges v. Pennsylvania Department of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011) (agency may prove nonexistence by unsworn attestation or sworn affidavit)
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (unsworn attestation and notarized affidavit suffice to prove nonexistence)
- Disability Rights Network of Pennsylvania v. Department of Public Welfare, 35 A.3d 830 (Pa. Cmwlth. 2012) (agency bears burden to search and respond; cannot expand request on appeal)
- McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374 (Pa. Cmwlth. 2014) (courts accept agency affidavits if no bad faith shown)
- Commonwealth v. Donahue, 98 A.3d 1223 (Pa. 2014) (presumption of good faith in agency actions under RTKL)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. Cmwlth. 2013) (RTKL standard of review is de novo with plenary scope)