OPINION BY
This is a Right-to-Know Law (RTKL)
OOR reasoned it lacked jurisdiction over the appeal because the request sought records of PSU, which is not a defined agency under the RTKL. Requester contends jurisdiction was proper because he made the request to the Department, a Commonwealth agency. He also argues the records are not exempt. Both parties ask this Court to address the exemptions, although OOR did not reach them. Because OOR had jurisdiction, we reverse and remand for further proceedings as to the applicability of the asserted exemptions.
I. Background
Requester sought records from the Department, specifically “copies of letters, emails, reports and memorandfa] received by Secretary of Education Ronald J. To-malis that were: (1) received by Secretary Tomalis in April, May, June and July of 2012; (2) sent to Secretary Tomalis during his official capacity as a member of [PSUj’s Board of Trustees; and, (3) sent by any of the below-mentioned individuals who are associated with [PSU].... ” Reproduced Record (R.R.) at la-2a (Request). The 38 people identified in the Request are current оr former members of the Board, employees of the Board, prior counsel to the Board, a former PSU President, and a spokesperson for the Board.
The Department denied the Request in part on the following grounds: attorney-client and attorney work-product privileges; the Predecisional Deliberative exception in Section 708(b)(10) of the RTKL,
Requester appealed to OOR, asserting the Department did not describe the records it withheld. Requester also argued the Department did not explain how the asserted exemptions applied.
The Department submitted a letter memorandum outlining its legal basis for withholding the records. The Department also represented that the only records responsive to the Request are from either a PSU Board member or Board staff. See Department Letter, 8/23/12, (Letter), R.R. at 19a-23a. Counsel signed the Letter below the following statement: “Under penalty of perjury, I swear that the facts set forth herein are true and correct to the best of my knowledge, information and belief.” R.R. at 23a. The Department explained the Secretary was the co-chairman of the Board’s Special Investigations Task Force (Task Force), created to investigate the allegations underlying the Sandusky scandal. For the first time, in response to Requester’s appeal, the Department claimed the records requested are not Department records under the RTKL.
In support of its argument that the records are not “of’ the Department, the Department advised it disclosed certain records to Requester before it learned of OOR’s decision in another case involving the Governor, and his capacity as a PSU Board member, Schackner/The Pittsburgh Post-Gazette v. Office of the Governor, OOR Dkt. No. AP 2012-0329 (issued Apr. 4, 2012). In Schackner, OOR determined that correspondence between PSU and the Governor, in his capacity as a PSU Board member, were not records because PSU is not defined as an аgency under the RTKL. The Department explained the only responsive records were communications from Board members or Board staff to another Board member (ie., the Secretary); therefore, the correspondence were not Department “records” as defined in Section 102 of the RTKL, 65 P.S. § 67.102. Under Schackner, the Department argued, OOR should dismiss the appeal.
In the alternative, the Department asserted the records withheld are protected by the Noncriminal Investigative exception, and attorney privileges because they pertain to the Task Force, and the Secretary’s role as its co-chаirman. The Department also argued the records are protected by the Predecisional Deliberative exception because the Secretary received the communications “as a Board member for purposes of contemplating or proposing policy or courses of action by the Board.” See Letter at 4; R.R. at 22a. Notably, aside from counsel swearing to the content of the Letter, the Department did not submit any evidence in support of its cited exemptions.
In rebuttal, Requester argued the Secretary is part of a Commonwеalth agency, and serves on the Board ex officio on behalf of the Department.
OOR issued its final determination dismissing the appeal based on its prior decision in Schackner. OOR did not explain its reasoning beyond its statement that PSU is not an agency subject to the RTKL; thus, its records are outside the scope of the RTKL. Requester appealed to this Court, challenging the dismissal and asserting the public nature of the records.
II. Discussion
Procedurally, Rеquester challenges the sufficiency of the Department’s representations in its partial denial. Requester asserts the Department did not comply with Section 903 of the RTKL, 65 P.S. § 67.903, in describing responsive records or the exemptions. In addition, Requester claims the Department waived any jurisdictional argument because it responded to the Request on the merits, and did not raise jurisdiction in its initial response.
Substantively, Requester argues the records are “of’ an agency because the correspondence at issue was sent to the Secretary in his official capacity as an ex officio PSU Board member. He contends the Secretary holds a position as a member of the PSU Board as a means of the Department overseeing PSU as one of the state-related institutions it regulates. As a consequence, the records evidence the Department’s oversight and knowledge of PSU activities. Further, OOR erred in holding the appeal was not within its jurisdiction because the records at issue originated with PSU. He also asserts the records are not protected by any of the exemptions, and the Department did not properly explain or prоve any exemption.
Interestingly, the Department changed its theory of the case on appeal to this Court. The Department abandoned its reliance on OOR’s reasoning in Schackner. Instead, the Department asks us to affirm on alternate grounds, focusing on the substantive exemptions cited in its initial response to Requester! To the extent it addresses the status of the records as “of’ PSU in its brief, the Department contends PSU is a third party that lacks rights under the RTKL, and raises a concern that PSU’s records may not be entitled to RTKL-based protection.
A. The Department’s Initial Response
At the outset, we address Requester’s procedural claims. Requester argues that the Department did not comply with Section 903 of the RTKL (regarding denial of a request). Requester asserts the Department’s alleged defective response should preclude it from' denying access. Requester also contends the Department waived any argument that the records are “of’ PSU, and beyond OOR’s jurisdiction because it did not allude to that defense in its initial response.
Section 903(2) of the RTKL requires an agency to set forth “specific reasons for the denial, including a citation of supporting legal authority.” 65 P.S. § 67.903(2). We acknowlеdge the Department’s partial denial does not adequately describe the responsive records to which the alleged exemptions apply, and it does not correlate exemptions with records. However, the
Thus, while the partial denial is deficient in describing the exempted records, the denial is sufficient to put Requester on notice of the exemptions at issue. Notice is the essential purpose of the denial. The initial response should enable a requester to make an informed decision regarding appeal. Carey v. Dep’t of Corr.,
As to Requester’s waiver claim, we note that the waiver rule enunciated in Signature Information Solutions, LLC v. Aston Township,
B. The Department’s Relationship to the Board
The current RTKL contains a presumption of openness as to any records in a defined agency’s possession. Bowling v. Office of Open Records,
The Department is a Commonwealth agency as defined by the RTKL. 65 P.S. § 67.102. A Commonwealth agency bears the burden of proving a record is exempt from disclosure. Dep’t of Transp. v. Office of Open Records (Aris),
In this case, there is no dispute the records are “in the possession” of the Department through the Secretary. Therefore, we consider whether the appeal came properly within OOR’s jurisdiction.
OOR dismissed Requester’s appeal because PSU is not an agency subject to the RTKL, and thе Request sought records “of’ PSU. In so doing, OOR disregarded that the Request sought records from the Department, a Commonwealth agency subject to the RTKL, received pursuant to the Secretary’s ex officio role as a PSU Board member. Essentially, OOR concluded the PSU Board records are “of’ a non-agency over which it exercised no jurisdiction. Implicit in OOR’s decision is that a record cannot be both “of’ a non-agency, (PSU) and “of’ an agency, (the Department) simultaneously. Following that logic, records originating with non-agencies are insulated from public view. We respectfully disagree.
Tо reach its conclusion that it lacked jurisdiction, OOR did not analyze whether the Secretary in his ex officio capacity was performing Department activities. Instead, OOR determined the status of the records as “of’ PSU, originating with PSU, precluded its jurisdiction. In so holding, OOR ignored the Department’s relationship with PSU.
PSU is a state-related institution subject to Department regulations, 22 Pa.Code §§ 40.21-26. Although an instrumentality of the Commonwealth, a state-related institution, as opposed to a state university within the State System of Higher Education, is only partially controlled by government representatives. See Pa. State Univ. v. Derry Twp. Sch. Dist.,
OOR followed the reasoning from its earlier determination in Schackner. In Schackner, the requester sought correspondence sent to the Gоvernor in his capacity as Governor, and in his capacity as a PSU Board member. Like the Secretary here, the Governor is statutorily required to serve as a PSU Board member by virtue of his office. In other words, his service as a PSU Board member is inseparable from his role as Governor because he holds the membership solely because he is Governor.
In Schackner, based on the significant evidence of record, OOR reasoned the records were either not responsive to the request or were not subject to the RTKL. In its final determination, OOR did not discuss whether the Governor servеd as an ex officio PSU Board member while simultaneously serving as Governor.
Significantly, without analyzing the statutory provisions requiring the Governor to serve on the PSU Board, OOR stated the documents are not “records” as defined by the RTKL, because “PSU is is [sic] excluded from the definition of an ‘agency
We are not bound by OOR’s holding in Schackner as “decisions of administrative boards or tribunals have no precedential value on this Court.” See Scott v. Del. Valley Reg’l Planning Comm’n,
Our case law belies OOR’s predicate assumption that records “of’ PSU are insulated from review because PSU is not an agency under the RTKL. See Pa. State Univ. v. State Emp. Ret. Bd. (SERB),
While not an agency under the RTKL, PSU’s Board is a defined agency
That the PSU Board is not an agency does not determine the outcome in this case. This is because both parties to correspondence do not have to be agencies. Rather, only one party needs to be an agency to lead to RTKL disclosure. Therefore, the relevant inquiry is whether the recipient, the Secretary of Education, when acting as a PSU Board member, is acting on behalf of a Commonwealth agency. Accordingly, we consider whether records that are sent from the PSU Board members or staff to the Secretary, in his capacity as an ex officio member of the Board, qualify as records of an “аgency” as defined by the RTKL.
We begin with assessing the role of the Secretary on PSU’s Board and the relationship between ■ the Department and PSU. The Secretary acts as a surrogate for the Department. When performing statutorily imposed duties, the Secretary must act at all times as the Secretary of the Department, and thus is acting in a governmental capacity. Notably,
When a provision of [Part 1 of Title 22 (Education of the Pa. Code)] confers powers on or imposes duties upon the Department which under a statute may be exercised by or imposed only оn the Secretary of Education, the reference to the Department shall be construed to mean the Department acting by and through the Secretary of Education personally.
22 Pa.Code § 1.1. In essence, references to the Secretary are to be construed as references to the Department. Id.
The Secretary is statutorily required to serve on the PSU Board by assuming the duties of the State Superintendent of Public Instruction. Section 1 of the Act of March 24, 1905, P.L. 50, as amended, 24 P.S. § 2586; see also Section 1 of the Act of July 23, 1969, P.L. 181 (the Act), as amended, 71 P.S. § 1037 (whereby all functions of the Department of Public Instruction were transferred to the Depart
PSU explains the historical purpose behind appointing the Secretary to its Board on its website as follows:
In an effort to build a broad base of support for the institution, the Trustees decided that their number should be more representative of the groups served by [PSU]_ In 1875, they obtained approval ... to amend the charter to provide for twenty-three Trustees. The change increased state influence.... The number of ex officio Trustees was increased to eight: the governor, the secretary of the Commonwealth, the state superintendent of public instruction, the secretary of the Department of Internal Affairs, the adjutant general, the secretary of the Philadelphia-based Franklin Institute, the president of the state agricultural .society, and the college president.
See Board of Trustees History, available at http:///www.psu.edu/trustees/timeline/ index.html (last visited July 1,. 2013) (emphasis added). Thus, the purpose of the Secretary’s ex officio membership on the Bоard is to build support for the institution and to increase state influence. Id. Both PSU and the Commonwealth benefit. Stated differently, the purpose of departmental regulation of PSU and all state-related institutions is to protect students and citizens of the Commonwealth. See 22 Pa.Code § 31.1.
This Court recognizes that the capacity in which government officials act is relevant to whether records may be reached under the RTKL. See Parsons v. Pa. Higher Educ. Assistance Agency,
In PHEAA, the agency held requested expense vouchers did not qualify as “public records” under the definition in the prior RTKL because the PHEAA Board was partially comprised of legislators. On appeal to this Court, the agency argued that records regarding activities of its legislator board members were legislative records, and therefore were beyond the reach of the prior RTKL. This Court disagreed. Records of legislators who were also PHEAA board members wеre accessible under the prior RTKL because the.records were sought from an agency (PHEAA), and pertained to the legislators’ activities as board members of that agency. That the records were records “of’ legislators at the same time that they were records “of’ PHEAA did not permit the legislators to insulate them from the RTKL. Id. Access depended on which role the legislator served.
Similarly, in Mollick v. Township, of Worcester,
Here, there is no allegation that the Secretary is serving in his individual capacity on the PSU Board. Indeed, during oral argument Department’s counsel agreed the Secretary acted on behalf of the Commonwealth while serving on PSU’s Board, and she acknowledged the Secretary was a “state actor” serving the Commonwealth’s interests.
By contrast, in Office of the Governor v. Bari,
It is useful to compare the appointment circumstances in this case with those in Bari. The designees on the board for the nonprofit corporation in Bari were not statutorily required to be designated; instead, the designation was at the option of the corporation. Moreover, neither the bylaws nor the articles of the corporation of the nonprofit required designation of a mayoral or gubernatorial representative. The appointment by the Governor, therefore, was the only agency connection, peripheral at best.
Here, OOR has jurisdiction because the Request is directed to a Commonwealth agency, which admittedly possesses the records. Also, the Board membership by the Secretary is required by statute.
The non-agency status of the creator or sender of records does not preclude their public status. See Dep’t of Envtl. Prot. v. Cole,
We now turn to whether the requested information falls under the RTKL definition of “record.”
2. “Records” received by the Secretary
OOR reasoned that correspondence between PSU and the Department are not “records” as defined in the RTKL because PSU is excluded from the RTKL definition of “agency.” Thus, OOR placed a narrow emphasis on the record’s creator. The definition of “record,” however, is not so narrow. The RTKL defines “records” in pertinent part as follows:
Information, regardless of physical form or characteristics, that documents a transaction or activity of an аgency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.
65 P.S. § 67.102 (emphasis added).
The Secretary’s receipt, on the Department’s behalf, of information from PSU through his service as an ex officio Board member qualifies the information as “received” by an agency. Nevertheless, we must also consider whether the record is “of’ an agency and the purpose of the record.
Further, the submissions to the Secretary as a PSU Board member “document” the Department’s participation on PSU’s Board. This Court consistently construes “documents” when used as a verb in the definition of “record” to meаn “proves, supports, [or] evidences.” Bari,
C. Substantive Exemptions
The Department asks this Court to affirm OOR on alternative grounds and consider the substantive exemptions on their merit. However, jurisdiction was proper before OOR, and OOR has yet to rule on the merits of the substantive exemptions.
Given the limited record developed below, we decline to exercise our authority to independently review it. More evidence may be necessary to assess the exemptions. Also, our review would be particularly challenging because the existing record does not identify or describe the responsive records.
In particular, the Department raised a concern that PSU did not participate below, or submit evidence to suрport potentially applicable exemptions. We recognize the necessity of protecting rights of third parties because the RTKL lacks a mechanism for providing notice and ensuring full participation. Levy, — Pa. at -,
We may remand to ensure development of a fuller record, expanded if necessary to include submissions from interested third parties. See, e.g., Bari,
Accordingly, we reverse and remand to OOR. Because we treat OOR as the fact-finder in the first instance, we leave to the thoughtful discretion of OOR to determine what defenses to disclosure are properly before it, whether to allow more evidence, who may participate, and what time frame
III. Conclusion
OOR fell into error by dismissing the appeal for lack of jurisdiction. Pursuant to a statutory requirement, the Secretary serves on behalf of the Department when serving on the PSU Board. Thus, the records the Secretary receives as a Board member are received by the Department pursuant to its statutory function as supporter and influencer of education at state-related institutions. Because the records are received by a Commonwealth agency to enable it to perform its statutory governmental function, they qualify as “records” under the RTKL.
Therefore, we reverse the dismissal, and remand to OOR for further proceedings consistent with this opinion.
Judge LEADBETTER dissents.
ORDER
AND NOW, this 19th day of July, 2013, after determining that jurisdiction was proper, the order of the Office of Open Records is REVERSED, and the case is REMANDED to the Office of Open Records to enable further development of the record as it deems necessary, for consideration of the substantive exemptions in accordance with this opinion.
Notes
. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
. “Ex officio " means "[b]y virtue or because of an office; by virtue of the authority implied by the office." Blаck’s Law Dictionary 597 (7th ed. 1999).
. See, e.g., McCord v. Pa. Gaming Control Bd.,
. In a RTKL appeal from an OOR final determination involving a Commonwealth agency, this Court "independently reviews the OOR’s orders and may substitute its own findings of facts for [those] of the agency.” Bowling v. Office of Open Records,
. The Sunshine Act defines “agency” in pertinent part as:
The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: ... the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action.
65 Pa.C.S. § 703 (emphasis added); see also Lee Publ’ns, Inc. v. Dickinson Sch. of Law,
. The Department counsel signed the Letter submitted to OOR "under penalty of perjury.” However, nowhere in the Letter did the Department identify the records. This is in contrast to the submissions to OOR in Schackner, in which the agency submitted a detailed affidavit and indices of responsive records.