Smith Butz, LLC v. Pennsylvania Department of Environmental Protection
2016 Pa. Commw. LEXIS 281
| Pa. Commw. Ct. | 2016Background
- Smith Butz, LLC (SB) submitted a Right-to-Know Law (RTKL) request seeking "all records associated with the August 30, 2010 Notice of Violation (NOV)" for the Yeager Impoundment, including investigations, complaints, and resolution.
- The Pennsylvania DEP responded that it did not have the requested records in its possession, custody, or control because no NOV was ever issued on August 30, 2010.
- DEP provided three sworn attestations (file clerk Jeffrey Brown, Program Manager Eric Gustafson, and inspector Byron Miller) describing searches and stating no NOV or related file exists; Miller explained he entered violation details into eFACTS but did not draft or issue an NOV.
- SB pointed to eFACTS entries, a federal study table, and Range Resources communications to argue an NOV existed and accused DEP of bad faith; SB also sought broader records relating to the August 30, 2010 violations.
- The Office of Open Records (OOR) and the Commonwealth Court credited DEP’s attestations, held DEP met its burden to show the requested NOV records do not exist, and denied SB’s appeal; the court affirmed the OOR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEP met burden to prove requested NOV records do not exist | SB: eFACTS entry, federal study, and Range emails show an NOV existed; DEP acted in bad faith or misplaced records | DEP: Sworn attestations and file searches show no NOV was drafted/issued and no responsive file exists | DEP met its burden; court accepted attestations and held no responsive NOV records exist |
| Whether SB may expand request on appeal to seek all records relating to the August 30, 2010 violation (not just an NOV) | SB: request language included "all records ... including investigations" and OOR should treat it broadly | DEP: request specifically sought records tied to an NOV; agency required only to search for records as requested | Court: request must be read as written; SB could not expand request on appeal; DEP required only to search for requested NOV records |
| Whether DEP’s attestations were contradictory or non-credible | SB: alleged inconsistencies between attestations and Miller’s eFACTS entry; argued Brown/Gustafson conflicted with Miller | DEP: attestations uniformly state no NOV exists; apparent references to inspection or eFACTS do not show an NOV was issued | Court: no material contradictions; attestations were detailed, credible, and unrebutted; no evidence of bad faith |
| Whether agency must explain why a requested record was not created | SB: wanted explanation for why NOV was not issued despite eFACTS entry | DEP: obligation is to show whether it possesses the record, not to justify non-creation | Court: agency need only prove nonexistence/absence of record; not required to explain why it was not created |
Key Cases Cited
- Department of Corrections v. Disability Rights Network of Pennsylvania, 35 A.3d 830 (Pa. Cmwlth. 2012) (agency must make good faith effort to determine possession, custody, or control of records)
- Hodges v. Pennsylvania Department of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011) (agency bears burden of proving a requested record does not exist; unsworn attestation or sworn affidavit may suffice)
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (attestation/affidavit of nonexistence can satisfy agency’s burden)
- McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374 (Pa. Cmwlth. 2014) (in absence of evidence of bad faith, affidavits asserting nonexistence are to be credited)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (standard of review under RTKL is de novo and scope of review is plenary)
- Commonwealth v. Donahue, 98 A.3d 1223 (Pa. 2014) (presumption that Commonwealth agencies act in good faith under the RTKL)