*1 A.3d 1223 Pennsylvania, COMMONWEALTH the GOVERNOR v. OF OFFICE Open Records. and the Office DONAHUE Sean Open Records. Appeal Office of Pennsylvania. Supreme 20, 2013. Argued Nov. Aug.
Decided *4 Donahue, Donahue. for Sean Sean Brown, Community of Department PA Esq., Rees Charles Lefkowitz, Chad- Esq., Dena J. Development, and Economic Records, Open for Schnee, Office Open Office of Esq., wick Records. Howell, of Labor & PA Esq., Department Paul
Thomas for Governor. Industry, Office EAKIN, BAER, TODD, CASTILLE, C.J., SAYLOR, McCAFFERY, STEVENS, JJ.
OPINION BAER. Justice matter, a declara- brought of the
In this the Office Governor Court, challenging in the action Commonwealth tory judgment 67.901, § of 65 Records’ P.S. Open the Office of responding time frame for agency’s which addresses an Right- made pursuant written for documents granted The Court Office to-Know Law.1 Commonwealth relief, held that declaratory for request of the Governor’s 67.901, to a respond § an must agency to 65 P.S. pursuant days within five business request Law records Right-to-Know by agency’s respective open- receipt request history explaining procedural records officer. After case, whether the Office of the Governor this we first consider action and bring declaratory judgment had subject had matter then whether the in this matter. we address Common- jurisdiction Finally, Providing part: in relevant record, agency Upon receipt request access to a of a written promptly possible good ... as shall make a faith effort request.... existing the time of the The under the circumstances days the date response not exceed five business from time for shall open-records officer for an request the written is received agency. response within five business If the fails to send access, request the written receipt of the written denied. for access shall be deemed 65 P.S. 67.901. *5 § of the interpretation Right- wealth Court’s of 65 P.S. 67.901 follow, to-Know Law. For the reasons that we affirm the the order of Commonwealth Court.
I. (Donahue) 7, 2012, March to On Sean Donahue submitted (OG) of the Law Right-to-Know Office Governor (RTKL) email, via various and request seeking budgetary open-records records. officer did not re- employment OG’s 12, 2012; days ceive the until March and five business request later, 19, 2012, March open-records proceeded on officer to grant request part deny part. Donahue’s request 29, 2012, March timely appealed On Donahue to the Office (OOR). Records Open OOR determined that Donahue’s request was “deemed denied” because failed to respond OG within a five request day period required by business OOR, § According P.S. 67.901. 901 affords an five business a RTKL days respond request after of the receipt request by any employee agency. In- stantly, day OOR concluded that the five business period to Donahue’s responding request began to run on March date on which an employee OG first received the request, that was request therefore “deemed denied” when OG failed to within five which respond days, business was March 14.2 fact The that OG’s officer did not open-records receive the until request March was immaterial to OOR’s analysis. Notwithstanding holding its that the was request denied,” “deemed upholding OOR issued a final order OG’s substantive response denying Donahue’s on the appeal grounds that his records was request insufficiently specific. OOR,
Even
though
prevailed
OG
the matter before
it
Court,
final
appealed OOR’s
order to the Commonwealth
it
where
contested
of Section 901 of the
RTKL.
wrongly
OG contended
OOR
concluded that an
agency must
to a RTKL
within
respond
request
five business
requestor
right
2. A deemed denial
furnishes
to file an
days
with the
within
fifteen business
the deemed denial
67.1101(a).
becomes effective. See 65 P.S.
receives such
within the agency
any person
the date
from
days
agency,
that an
argued
OG
contrary,
To the
a request.
from the date
it,
five business
has
including
for rec-
receives the
officer
RTKL open-records
must re-
agencies
(stating
§ 67.901
ords. See
65 P.S.
*6
from the
“five business
within
to record
spond
open-records
the
by
is received
request
the written
date
2, 2012, the Commonwealth
July
agency.”).
for an
On
officer
for
petition
curiam
quashing
order
OG’s
per
a
issued
Court
held that OG
review. The Commonwealth
appellate
order because OG
the OOR
appeal
to
from
standing
lacked
order,
with
merely disagreed
but
the
“aggrieved” by
not
was
time frame for
it
the
regarding
against
an issue decided
requests.
RTKL records
to
responding
order,
simulta-
final
OG
In addition to
OOR’s
appealing
action in
Common-
declaratory judgment
filed a
neously
that
a declaration
jurisdiction, seeking
original
wealth Court’s
to
respect
901 of the RTKL with
misinterpreted
OOR
for re-
day period
the five business
the commencement of
901.3 As noted
a RTKL
under Section
request
to
sponding
that
the five
above,
from the court
holding
a
sought
OG
to a RTKL
for an
to
day period
business
of the
receipt
until
running
does not start
records
officer,
to
opposed
as
agency’s open-records
an
request by
respective agency.
receipt by any employee
nam-
judgment
for declaratory
response
petition
OG’s
objections
filed preliminary
OOR
ing
respondent,
alia,
inter
bring
lacked
standing
that OG
claiming,
because,
as found
against
action
it
declaratory judgment
in the
regard
to OG’s
the Commonwealth Court
matter,
decision
Donahue
aggrieved by
was not
OOR’s
OG
and, therefore,
bring
original
Donahue
lacked
also
an issue decided therein. OOR
jurisdiction
raising
action
juris-
original
that
Court lacked
claimed
the Commonwealth
declaratory
respondents in its
and Donahue as
3. OG named both OOR
Court dismissed Donahue as
judgment action. The Commonwealth
grounds
declaratory judgment
party
action on
original
improper forum for OG to file an
Court is an
against Donahue.
action
relief,
declaratory
diction to entertain
be-
petition
OG’s
Assembly specifically placed
cause the General
such matters
in the judiciary’s appellate
original jurisdiction
rather
than
through
statutory appeals
established in
process
Chapter
13 of the RTKL.
67.1101. Finally,
See
P.S.
OOR averred
claim
be
OG’s
should
dismissed because the Common-
wealth Court
held in
previously
Pennsylvania Gaming Con-
(Pa.Cmwlth.
Records,
trol Bd. v.
Oyen
In a single judge
opinion
issued without
on August
28, 2012, the Commonwealth Court dismissed
prelimi-
OOR’s
objections
nary
proceeded
to entertain
declaratory
OG’s
judgment
against
Ct.,
action
OOR. Order of
Cmwlth.
No.
2012).
justification
376 M.D.2012
As
(Aug.
for its August
28, 2012 order dismissing
preliminary objections,
*7
Commonwealth Court cited without
the
explanation
following
two cases: Pennsylvania State Educ. Ass’n ex rel. Wilson v.
Commonwealth,
(2012)
three judge panel of the Commonwealth
granted
Court
OG its
requested
relief on the
declaratory
merits. Commonwealth v.
Donahue,
(Pa.Cmwlth.2013).
59 A.3d the
Notably,
court
expressly declined to address the issues of standing
juris-
by
objections
diction raised
OOR in preliminary
because these
issues,
view,
in the court’s
were
single judge
resolved
Id. at
objections.
preliminary
denying
28 order
August
to the merits.
Instead,
directly
proceeded
the court
1167 n. 5.
an agency’s
OOR’s determination
rejected
The court
request
to a RTKL
responding
for
day period
business
five
employee
any agency
when
901 commences
under Section
held that OOR
the court
Specifically,
the request.
receives
in
holding PGCB
the Commonwealth Court’s
mischaracterized
employee’s receipt
that an agency
the proposition
to stand for
day period
the five business
request triggers
of a RTKL
PGCB, an agency
at 1169. In
Id.
request.
responding
to an
request
open-
a records
failed to forward
employee
after decid-
and,
allegedly, ignored
request
records officer
act,
was defective.
request
in
that the
solitary
ing,
concluded
PGCB
at 504-05. The Commonwealth
request was
circumstances the records
that under
these
that,
written
denied,”
generally,
held
“deemed
addressed to
specifically
not need to be
for records do
formatting
follow certain
officer or
agency’s open-records
analysis
In its
to be valid. Id.
508-10.4
order
guidelines
us,
limited its
the Commonwealth Court
of the case before
RTKL re-
and form of
substance
holding
PGCB
dispositive
to treat
that case as
and refused
quests,
RTKL
to a
day
responding
the five
time frame
regard to
Donahue,
II.
standing to
possessed
first consider whether OG
We
declaratory
given
relief
Court for
*8
petition
Commonwealth
in
of
67.901 enunciated Dona
65 P.S.
interpretation
OOR’s
thus,
law;
our
is a
standing
question
hue. The issue of
issue, namely
granted
whether
Court
allocatur to consider this
This
holding
by
that RTKL records
Court in PGCB erred
Commonwealth
agency’s
specifically addressed to the
requests do not need to be either
formatting guidelines in order to
open-records officer or follow certain
PGCB,
(Pa.Cmwlth.2012),
granted
appeal
74 A.3d
standard of review is de novo and our of review Standard, 492, 318, Am. 8 A.3d plenary. Johnson v. (2010). 326 grant-
OOR that the Commonwealth Court’s decision argues ing declaratory relief should be vacated because OG suffered case, no harm as a result of final order in the Donahue OOR’s and therefore lacked to sue that standing OOR. OOR reasons just correctly as the Commonwealth found that OG lacked final in standing OOR’s order Donahue aggrieved, because it was not the court should have also held to sue in standing declaratory judgment OG lacked OOR (reversal sought where it the same relief in holding matter) (that the Donahue for the same reason OOR’sposition was contrary statutory language).
Specifically, argues OOR OG failed meet the re- elements for in quired standing deсlaratory judgment its action-namely, failed to OG demonstrate that its asserted substantial, direct, interest was and immediate. Fumo v. See (2009). City Philadelphia, 601 Pa. 496 OOR avers that when it rendered its it order Donahue did not engage any sort of “rulemaking” defined Act, Attorneys §§ P.S. 732-101 et seq.; Law, 1201-1208; §§ Commonwealth Documents 45 P.S. or the Act, Regulatory §§ Review seq. P.S. 745.1 et OG, absence of official rulemaking OOR contends affecting any that OG did not suffer harm. further argues that mere with a tribu disagreement legal
nal’s or conclusions of law reasoning does not confer on a standing party. Borough See ACS Enters. v. Norristown Bd., (Pa.Cmwlth.1995) (“[A] Zoning Hearing A.2d prevailing party’s disagreement with the legal reasoning basis for a decision does not amount to a cognizable aggrieve necessary ment to establish standing.”). OOR contends that any potential future adverse of its consequence 901 is sufficiently not immediate to confer relief, on purposes declaratory OG for must OG is, fact, wait to make its in a case it challenge where at which aggrieved, point may pursue remedy through OG
447 in Chap established for review statutory scheme the specific v. Dep’t & Dev. Mining Coal Empire RTKL. See ter 13 of the (1993) 897, 296, 900 623 A.2d Res., 154 Pa.Cmwlth. Env’t judicial a future adverse possibility that the mere (stating for injury immediate establish an to is not sufficient ruling Pa. v. 110 Lloyd, Yarmoski see also standing); purposes (1987) 1169, 1171 that declarato 97, (holding Cmwlth. of events anticipation in “are not to be entered ry judgments occur.”). interpre avers that its Finally, OOR never may to 901, agencies would require where OOR tation of Section days upon -within five business record to time does not waste any agency employee, receipt by or resources. Court that the Commonwealth concedes response,
In
OG
in Dona-
for
review
appellate
its petition
dismissed
properly
to
standing
lacked
finding
after
OG
hue
however,
possessed
it nonetheless
OG,
contends that
order.
declaratory
Court
standing
petition
standing
bring
observes
against
relief
OOR. OG
a “discernible
asserts
party
exists where
original complaint
interest. See William
an individualized
effect” to
adverse
168,
464 Pa.
City
Pittsburgh,
Inc. v.
Parking Garage,
Penn
that,
Here,
(1975)
contends
269,
OG
(plurality).
A.2d
282
346
order,
declaratory
Court’s
from the Commonwealth
apart
Donahue,
its inter-
announced
where OOR
decision
alter both
901, would force OG to
of Section
pretation
and the
public
with the
in which it communicates
manner
matters,
imposing
thus
it
RTKL
litigates
manner in which
burdens on OG.
administrative
significant
at issue
standing
the doctrine of
Pennsylvania,
de
principle
created
judicially
a prudential,
this matter is
in a
have no direct interest
who
litigants
to winnow out
signed
1238,
Hickson,
A.2d
573 Pa.
821
matter.
In re
judicial
exist,
(2003).
controversy
the underlying
standing
For
concrete,
initiating
party
such that the
real and
must be
fact,
Pittsburgh Pali
has,
“aggrieved.”
action
been
legal
Commonwealth,
A.2d
Park,
v.
sades
LLC
(2005).
Parking
in William Penn
explained
As this
Garage,
standing]
“the core
is that a
who is
concept
person
[of
adversely
way
not
affected in
the matter he
any
seeks
is
challenge
‘aggrieved’ thereby
not
and has no
judicial
challenge.”
obtain
resolution to his
Thus, while purpose of the Declaratory Judgment Act, 42 § 7531 et. seq., Pa.C.S. is to “settle and to afford relief from uncertainty insecurity status, and with respect rights, relations, and other legal and is to be liberally construed and administered,” the availability of relief declaratory is limited 7541(a). by certain justiciability § concerns. 42 Pa.C.S. order to sustain an action under the Declaratory Judgment Act, plaintiff direct, must allege interest which is substan immediate, tial and and must demonstrate the existence of a real or actual as the controversy, courts of this Commonwealth generаlly are from proscribed rendering decisions in the ab stract or issuing purely advisory opinions. Pittsburgh See Park, 659; Hickson, Palisades 888 A.2d at see also In re A.2d at 1243.
OOR’s contention that newly announced interpreta tion of Section does not waste time or resources or otherwise harm OG’sinterests borders on the frivolous. Pur suant to interpretation OOR’s of Section the five business day period for responding to a RTKL record request triggers upon receipt by any one of employees, opposed OG’s as date of receipt by respective OG’s officer.5 The open-records effect of OOR’s is interpretation to shorten the window for impact 5. The of OOR's every of Section 901 extends to agency, subject Commonwealth which are all to the directives of the it more thereby making RTKL record requests, responding time comply requirements with the difficult OG to record requests, less time to Section With is which will increase higher, likelihood of deemed denials adjudicate forced to with number of RTKL matters that OG is harm is allegation § 67.1101. the OOR. See 65 P.S. OG’s agen- an administrative speculative, neither remote nor with the charged complying of the cy RTKL, possesses cognizable of the statutory directives OG surpasses in the of this dispute interest outcome interest of all citizens.
Moreover, in the aggrieved insistence that OG is not misguided. engaging rulemaking absence of official OOR adopt regulations authorizes Notably, the RTKL advisory implementation issue to facilitate opinions 67.1310(a). 67.504(a); § 65 P.S. While statute. See 65 P.S. regulation advisory decision is neither a nor an Donahue 901 in although OOR’s discussion opinion, *11 (in that essentially upheld Donahue was dicta OOR OG’s insufficiently being dismissal of Donahue’s record has to defend its of specific), proceeded interpretation OOR indicated that it Section 901 this and has otherwise 901 in accordance with the position intends to enforce Section Thus, it took in Donahue. Brief of at 17-18. OOR OOR’s adjudication initial in this matter and subsequent advocacy sufficiently position serves to enunciate its on this issue which adversely, directly immediately impacts and OG. 67.302, .303, (providing §§ RTKL. See P.S. and .304 Common- agencies, agencies, legislative agencies, judicial agen-
wealth local and RTKL); provide public cies in accordance with the shall records see (defining agencies, agen- also 65 P.S. 67.102 local cies, legislative agencies, judicial agencies purposes for the RTKL). Thus, judicial especially populous, while OG not we take significant interpretation pose notice that of Section 901 would OOR’s challenges agencies Department administrative such as the of Cor- Welfare, Department collectively employ which rections or of Public 30,000 OOR, whom, employees, any according over of could serve as proper recipients purpose triggering of RTKL record for the of requirements the time of Section 901. See 2013 State Government Statistics, Pennsylvania http://www. Administration, Office of Workforce oa.state.pa.us/portal/server.pt/community/workforce_statistics_(new)/ 20613/workforce_statistics_new/1054504 24, 2014).
(last visited Jan.
possesses standing
For these reasons we conclude that OG
interpre-
in a
action
challenge
declaratory judgment
is consistent
position
respect
tation of Section 901. Our
this
justicia-
recognized
with similar decisions where we have
declaratory
seeking pre-enforce-
actions
bility
judgment
ment review of an administrative
agency’s interpretation
a
v.
governing
enforcement of
statute. See Arsenal Coal Co.
(1984)
Commonwealth,
(upholding
505 Pa.
A.3d 866 of a (affirming justiciability of a judgment challenging agency’s interpretation action statute). in a provision governing The fact OOR has not in official to its engaged rulemaking respect interpreta- tion of 901 is a By Section distinction without difference. forth and setting defending interpretation adversely, OOR’s conduct under the facts herein directly and OG, immediately impacts thus on OG conferring challenge OOR’s declaratory judgment.
III. Next, argues the Commonwealth lacked jurisdiction declaratory over OG’s judgment action. OOR “[wjhether phrases the Commonwealth Court issue jurisdiction erred it had finding origi- over the Governor’s jurisdiction nal complaint alleging misinterpretation of statu- tory law in the absence of harm any or constitutional ques- tion?” Brief of OOR at 4. We note that in so arguing, OOR jurisdiction, conflates the distinct standing, notions exhaustion statutory remedies.6 we will Notwithstanding, *12 summarize and posited argument. OOR’s that, 28, 2012, claims in rendering August OOR its order of objections denying preliminary jurisdiction, statutory The terms "exhaustion of remedies” and "exhaustion of interchangeably administrative remedies” are at times used in our Compare Pennsylvania law. decisional State Educ. Ass’n ex rel. Wilson Commonwealth, 491, 1263, (2012); v. 616 Pa. 50 A.3d 1276-77 Kowen-
451 Pennsylvania upon relied erroneously Court Commonwealth Commonwealth, Pa. v. 616 rel. Ass’n ex Wilson Educ. State (2012) (“PSEA ”) that a proposition for the 491, A.3d 1263 50 may the RTKL of interpretation by OOR’s party aggrieved in the relief Commonwealth declaratory for file an action PSEA, 491, 50 A.3d 616 Pa. jurisdiction. See original Court’s seeking (2012) union to sue OOR a teachers’ (permitting 1263 Court, where the in the judgment declaratory and was issues constitutional union raised substantial teachers’ request proceeding). RTKL underlying not a party a provide grant did not holding therein asserts that our OOR Declaratory Judg- purposes over it for jurisdiction of circumstances was limited to but rather generally, ment Act was inade- involving OOR process where the administrative consti- and where substantial address a claim party’s quate PSEA from distinguishes issues were raised. OOR tutional PSEA, case does case, that, this out unlike pointing the instant statutory administrative or left with no party not involve a OOR, and does not against claim for pursuing process issue. constitutional a substantial implicate lacked contends that the Commonwealth thus judg- declaratory jurisdiction to entertain OG’s subject mattеr an issue with constitu- did not raise ment action because OG and, failed to because OG importantly, overtones more tional would have remedies.7 OOR statutory its available exhaust of challenging from OG disallowed 1003, 545, 1010-12 901 A.2d Cnty. Allegheny, 587 Pa. hoven v. of 1240, Inc., (2006); Capital, Pa. Pentlong Corp. v. GLS Assessments, Appeals (2003); Prop. Bd. Borough Green Tree v. of (1974). Cnty., A.2d Allegheny & Review of declaratory judgment action is a OG’s the alternative to Given RTKL, an adminis- remedy provided in the rather than statutory as regulations, by agency appeals process created rules trative statutory reme- clarity the term "exhaustion we will utilize sake analysis of this issue. dies” in our statutory requiring presumes the rule the exhaustion 7. OOR subject jurisdiction. As matter operates to divest a court of its remedies noted, as to whether recently law is not clear our decisional we have implicates a court’s statutory doctrine remedies the exhaustion serving prudential is a concern jurisdiction, or whether the rule *13 452 actually aggrieved,
901 until a future case arises where OG is pursue fully at which will be able to its available point, OG remedies, review as for statutory including appellate provided 67.1101, in Chapter §§ 13 of the RTKL. See 65 P.S. .1301.8 OG that the Commonwealth Court exer- responds properly original jurisdiction declaratory cised its OG’s judgment action petition declaratory sought because its relief review of what viewed as an of the RTKL which OG OG, would as well as all other continuously place Common- RTKL, subject wealth agencies jeopardy. Specifical- ly, OG asserts OOR redefined the limits of its own jurisdiction to entertain RTKL appeals when it clarified the time agency frame within which an must to a RTKL respond request, given jurisdiction record lacks RTKL OOR over until a appeals request has been “deemed denied.” See § P.S. 67.1101. OG thus characterizes its petition declara- tory relief as an seeking action to define the reach of proper matters, which, authority OG, OOR’s in RTKL according to properly falls within the Commonwealth original juris- Court’s diction.
Before turning to OOR’s
we
argumеnts,
initially reject
argument
OG’s
that OOR’s announced interpretation of Sec-
pre-requisite
jurisdiction.
to a court’s exercise of its
See White v.
Co.,
(2012).
Conestoga Title Ins.
53 A.3d
726 n. 11
It
unnecessary
question
is
disposition
to resolve this
in our
of this matter
before the Court.
Additionally,
Sec'y
OOR likens this matter to Marin v.
Common-
wealth,
(Pa.Cmwlth.2012)
recently
which
this
af-
(2013).
per
firmed in a
curiam order. 620 Pa.
ees filed an
injunctions
the disclo-
preliminary
permanent
prohibiting
after
information
OOR
employees’ personal
sure of
school
records
to a series of
pursuant
ordered the release of these
districts across Penn-
RTKL
filed with various school
union
its
premised
While noting remedies, that a declarato- this in PSEA held statutory under the against appropriate action OOR was ry judgment circumstances, process raised substantial due where the union lacked a reliable administrative or alternative
concerns and Moreover, judicial remedy. notwithstanding Id. at 1275-76. tribunal, quasi-judicial that the is a we further held that brought it to an action indispensable proper party was Act, 7541(a), Declaratory Judgment under the Pa.C.S. RTKL, an order seeking regarding adequate when the lacked an particularly aggrieved party judicial obtaining administrative or alternative forum for re- lief, as the case in Id. at 1277.9 was PSEA. to limit the Court’s attempt Commonwealth
jurisdiction over it to the facts of
the reach
PSEA understates
jurisdiction
of the Commonwealth Court’s
over a
original
like
The
OOR.
Commonwealth Court
original jurisdiction
any
has
over
action
brought against
“Commonwealth
government,”
authority
as well as
761(a),
grant declaratory
§§
relief to the same. 42 Pa.C.S.
7541(a);
Commonwealth,
v.
Vine
*15
(2010).
1165
The Judicial Code defines the “Commonwealth
boards,
“...
government”
including
departments,
com
missions, authorities and officers
agencies
of the Com
OOR,
§
monwealth.” 42 Pa.C.S.
102. The
as a Common
wealth agency, plainly falls within the
definition of
statutory
“Commonwealth government”
subject
and is therefore
original jurisdiction of the
in any
Commonwealth Court
action
properly brought against
§
it. See 65
67.1310 (placing
P.S.
Open
Office of
Records in the Department
Community
of
and Economic Development, charged with
implementing
RTKL);
Vine,
enforcing
(jurisdic
also
see
455 origi- Court’s of the Commonwealth scope within the squarely jurisdiction. nal of a that the absence contention reject OOR’s
We therefore deprives in this action issue constitutional substantial in this While PSEA jurisdiction. Court Commonwealth action declaratory judgment held that a expressly Court jurisdic- original Court’s in the Commonwealth against lacked party the aggrieved where appropriate tion was con- and raised a substantial remedy available administrative issue, that the facts PSEA we never indicated stitutional jurisdic- Court’s the extent of Commonwealth represented in PSEA, contrary, To the at 1275-77. 50 A.3d tion. See Corp. Capital, v. Pentlong GLS approval we cited PSEA (2003) by statute Inc., (superseded 1240 Pa. 820 A.2d 7106) a where we endorsed 53 P.S. grounds, on other whether determining flexible” “relatively approach declaratory judg- a should entertain Commonwealth an alternative party possesses the aggrieved ment action when PSEA, 1277; Pentlong Corp., at 50 A.3d remedy. legal Tree v. 1245-46, Borough Green (citing 1248 n. 16 A.2d Assessments, Prop. Bd. of Court, (1974)). this notwith- Pentlong Corp., Specifically, question, constitutional absence of a substantial standing the jurisdiction by sanctioned the exercise involving allegations action declaratory judgment Court over en- entity unjust against private enrichment of fraud Pentlong Corp., lien collections. municipal tax gaged at 1248 n. 16. A.2d the rule contention reject further OOR’s
We
effectively
remedies
statutory
the exhaustion
requiring
of Sec
challenging
OG from
precludes
*16
in
brought
action
declaratory judgment
means of a
tion 901
it
jurisdiction. While
original
Court’s
Commonwealth
exhaustion of
rule
requiring
unclear whether the
remains
(see supra
jurisdictional
prudential
or
statutory remedies is
an exhaustion
7),
one cast
assuming, arguendo,
even
note
a court
terms, there is no doubt
jurisdictional
in
discussion
existing
in the face of an
jurisdiction
exercise
may properly
or
when that
is either
legal
statutory remedy
remedy
inade
or
1003, 1010 Here, OOR, an administrative agency, proffered inter- pretation of Section 901 of the RTKL in its Donahue decision that immediately detrimentally impacted OG. Nonethe- less, challenged appeal OOR OG’s from OOR’s because, noted, Donahue decision Commonwealth Court the prevailing OG was therein.10 now party argues OOR statutory OG must first exhaust its remedies under the RTKL before pursuing declaratory relief in the Commonwealth essentially Court. OOR advocates that OG await the following OG, scenario: a future RTKL requestor challenges or another RTKL, entity subject to the violating OOR’s interpretation Donahue; of Section 901 articulated in OOR resolves the Donahue; dispute favor of the requestor, consistent with OG, or the alternative entity, challenges interpre- tation of Section 901 before the Commonwealth in its Meanwhile, appellate capacity. presumably expects OG every other to act in accord with decision, its Donahue and thus face the direct and immediate administrative burden of with complying pronouncement, this unless and until the aforementioned scenario unfolds. circumstances,
It is precisely under such
where a party is in
need of relief
“uncertainty
from
and insecurity with
respect
status,
relations,”
rights,
and other legal
and where a
legal
matter,
unnecessary
disposition
10. As it is
present
of this
we take
position
regard
no
quashing
Commonwealth Court’s order
decision,
OG’s direct
from the Donahue
where the Common-
precedent
wealth Court
Commonwealth,
Ridgway's Magnetics
relied on its
Co. v.
(1990) (holding
134 Pa.Cmwlth.
901 announced of either with complying with the task whom are burdened they when are challenging or same OOR’s relief is declaratory Accordingly, have violated it. found to jurisdiction original Court’s in the Commonwealth appropriate with lawsuits” “multiplicity duplicative to avert the potential judg- in its declaratory issue raised to the same OG regard at 1245- 820 A.2d Pentlong Corp., ment action. generally See Kowenhoven, 46; at 1011. Tree,
Moreover,
Borough
Green
recognized
as we
need not
statutory
remedies
rule
the exhaustion
requiring
has
to con-
process
nothing
administrative
where “the
apply
special
and there are no
of the issue
tribute to
decision
Borough
its immediate decision.”
reasons for postponing
(internal
Tree,
marks omit-
quotation
A.2d at 824
Green
ted).
position
regard
has stated its
Given that OOR
the same on
in its Donahue decision and defended
Section 901
Court,
formal consid-
unlikely
awaiting
to this
it is
controversy
in a future
between OOR
question
eration of the
Id.
insight.
will
further
See
provide
OG
Thus,
contention,
contrary
declaratory judg-
OG’s
OOR’s
original
ment action addressed to the Commonwealth Court’s
inter-
jurisdiction
challenging
vehicle for
proper
was
with other
the RTKL.
is consistent
pretation
position
Our
ac-
declaratory judgment
where we have permitted
decisions
jurisdic-
original
tions
in the
Court’s
brought
Commonwealth
adju-
within their
agencies acting
against
tion
Arsenal,
505 Pa.
dicatory
regulatory capacities.
See
against
action
(declaratory judgment
brought
Finally, standing, as with our discussion of we view it OG’s immaterial that to its construction of path Section adjudication of the RTKL was first its of a case before it as a tribunal, then an quasi-judicial position and its advocate. that an consequence adopted interpretation Of is OOR has question the statute in and stated its intention to that apply interpretation prospectively apparent to the detriment of OG (as well agencies). as other Commonwealth Under these circumstances, we that conclude Commonwealth Court jurisdiction exercised its over properly original OOR this matter.
IV.
aside,
jurisdiction
With
concerns
we turn to
analysis
our
of when the five
day period
respond
business
for
to RTKL record
ing
requests begins
to Section 901
pursuant
of that act.
that the
OOR contends
Commonwealth Court
by
erred as matter of law
901 to
interpreting
provide
Section
that
the five
day period
responding
business
for
to RTKL
record
does not
run until
begin
agency’s
First,
respective open-records officer receives the request.
PGCB,
citing
holding
to the Commonwealth Court’s
OOR
that the court failed to follow
argues
precedent establishing
that an
of a RTKL
agency employee’s receipt
request triggers
day period
the five business
under
responding
Section
Pennsylvania Gaming
Open
See
Control Bd. v. Office of
(Pa.Cmwlth.2012) (“PGCB ”)
Records,
OOR language to the express full effect only gives one the RTKL contem- 703 of the RTKL. OOR notes that Section be- employee, requests by any agency receipt plates requests all to forward employees cause it directs such officer.11 agency’s open-records respective records to the open-records 502 instructs further notes that Section OOR five business day on which the day “compute officers contends that the will expire,” under Section 901 period on when the computation base the officer should open-records request.12 the RTKL received agency employee first part: provides in relevant 11. Section open-records officer request be addressed to the A written must agency Employees of an shall be designated pursuant section 502. open-records officer. requests for records to the directed to forward § 67.703. 65 P.S. part: provides in relevant 12. Section 502 on the places significance OOR fact that various sections of the RTKL refer to an determination of whether agency’s grant deny access to records as the “agency’s response,” as opposed to the officer’s “open-records response.” See 65 P.S. 67.706, .903, .904, .905, .1101, §§ and .1303. OOR contends that an open-records merely officer’s duties are administrative while it is the agency performs all critical decision-making RTKL, with respect functions and reasons that the five day period business to a RTKL responding neces- sarily begins to run when any agency employee first receives the request.
Finally, argues OOR that the Commonwealth inter- Court’s pretation runs counter to the overriding legisla- RTKL, tive intent in enacting the which is government trans- parency and the resolution speedy requests for information. Senate, (2013). v. Levy See OOR that, pursuant warns to the Commonwealth interpre- Court’s tation of Section an will be agency inclined to act in bad faith by delaying the RTKL transmission of from its employees open-records Moreover, officer. con- tends that the Commonwealth Court’s will inhibit holding parties requesting records from when knowing day the fifteen window for appealing run, from deemed denial begins to since will they have nо reliable method for determining when an agency’s open-records officer first received a re- record quest. § See 65 (stating P.S. 67.901 that when fails to respond timely to a RTKL request, record the request is denied”); “deemed 65 P.S. 67.1101 (conferring right to file an the OOR within fifteen of either a denial). denial or a deemed
(b) Functions.'— *20 (2) record, Upon receiving request public legislative for a record record, open-records financial agency] officer an [for shall following: do all of the (i) receipt Note the request. date of on the written (ii) Compute day five-day period on which the under section expire 901 will and make a notation of that date on the written request. § 65 P.S. 67.502.
461 of language that the Sec- plain OG contends response, 901, 703, agencies RTKL establish that and 502 of the tions days within five business requests to RTKL must an open- is received from the date the written opposed any for the agency, records officer interpretation of Section argues OOR’s employee. OG that is both execution impossible 901 would a result require that if 901 OG warns Section implementation. and absurd within five require agency response as to interpreted then employee, agen- receipt by any agency business averring task of impossible cies will be confronted with receipt request. Finally, are in of a agency personnel that no 901 is if OG submits RTKL record re- “shotgun” will upheld, agencies experience multiple are submitted to where quests duplicate would have us affirm the Accordingly, OG agency employees. declaratory relief. grant Commonwealth Court’s from analysis interpreting provision As our involves RTKL, Statutory necessarily begin by considering we § et The seq. Act of 1972. 1 Pa.C.S. 1501 Construction object that the of all inter- Statutory Act directs Construction to ascertain and and construction of statutes is pretation 1921(a); § intent. 1 Pa.C.S. legislature’s effectuate the Bd. Twp. LLP v. Properties, Aviation Chanceford Chanceford (2007). 100, 1099, 1104 923 A.2d Supervisors, intent is the legislative plain the best indicator of Generally, 104, Pa. 842 Eleby, of the stаtute. Walker v. 577 language (2004). statutory language, In construing A.2d 400 according construed to rules of shall be phrases “[w]ords us- approved to their common and grammar according 1903(a). are § the words of a statute age[.]” Pa.C.S. When beyond there is no need to look unambiguous, clear and pursuing “under the meaning pretext of the statute plain Conklin, 1921(b); v. spirit.” Pa.C.S. (2006). the words Only “[w]hen Pa. the rules a court resort to explicit” may of the statute are not *21 462 in 1 including provided construction those Pa.C.S. statutory 1921(c);13 at 1104. The statute must Chanceford,
§
construed,
effect to all its
possible,
give
provisions,”
“be
if
is reduced to mere
Pa.C.S.
provision
surplusage.
so
no
1921(a); Walker,
Finally,
presumed
§
The RTKL all officer, RTKL handling records who is tasked with record (b). 67.502(a)(1), RTKL further requests. § 65 P.S. The RTKL obliges agency employees requests who receive forward the to the officer. 65 agency’s open-records § there no time frame for specified P.S. 67.703. While is officer, forwarding request agency’s open-records of the RTKL make a faith agencies good Section 901 directs respond promptly possible, any effort to as as event to days no later than “five business from the date the written request by open-records received officer for an § agency.” provides fully: P.S. 67.901. Section 901 more record, Upon receipt request of a written for access to a agency shall make a faith effort ... good respond as promptly possible existing under circumstances response the time of the request.... The time for shall days not exceed five business from the date the written request open-records is received officer for an agency. If fails to send the within five response 1921(c) §in 13. The factors are: (1) necessity The occasion and for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) object Thе to be attained. law, (5) any, including upon The former if other statutes same or subjects. similar (6) consequences particular interpretation. The of a (7) contemporaneous legislative history. The (8) Legislative interpretations and administrative of such statute. 1921(c).
1 Pa.C.S. access, request the written receipt business deemed denied. access shall be the written added). (emphasis Id. statute, a above, reviewing construing
As noted legislature, intent of the discern the objective is to court’s *22 the statute. by plain language which is best indicated unambiguous. Sim is clear and passage The of this language requests record to RTKL respond must agencies ply put, open- agencies’ respective after the days five business within The five business the request. first receives records officer officer re the open-records when day plainly begins period in 901 is the directive Section Because request. ceives inter than one reasonable subject to more vague neither nor meaning beyond plain need to look there is no pretation, intent. legislative indicia of and resort to other the statute 1921(c). thus § The Commonwealth 1 Pa.C.S. See RTKL an requires 901 of the concluded that Section properly within five for records request to a written respond to agency agency’s open- an receipt by days request’s business officer. records agencies 901 requires that Section
OOR’s insistence days business within five to RTKL record respond in the text of the has no basis by any agency employee receipt looks, isolation, in interpretation, To defend its OOR statute. 901 which refer to last sentences of Section at the first and requests, to RTKL records response agency’s” receipt “an that the five necessarily implies language that the argues request to a records responding day period business any employee. OOR’s receipt by agency to run begins upon however, satisfactory expla- provide not does interpretation, directs specifiсally in Section 901 language nation of the from the date days within “five business respond agencies officer for open-records is received request the written lan- plain acknowledges agency.” an While OOR officer agency’s open-records affords an guage Section records request, to a RTKL five business basis, only true if the adds, that this holds any without the request. to receive employee the first officer is give Because does not effect to all the OOR’s in and otherwise inserts lan- language contained Section statute, reject that does not in the text of the we guage appear 1921(a), construction of OOR’s See Pa.C.S. 1922(2). reject attempt analogize
We also OOR’s this case to the PGCB, prior holding Commonwealth Court’s PGCB. failed to forward a agency employee request records to an officer, open-records supposedly ignoring request after act, in a that the deciding, solitary request was defective. 48 A.3d at 505. The Commonwealth Court concluded PGCB the records was “deemed denied” because the agency refused to and further held that respond, written requests for records do not need to be specifically addressed agency’s officer or follow open-records specific format- ting guidelines in order to be valid. Id. at 508-10. While the (a denial) outcome deemed is consistent with PGCB contention that the day five business under response period *23 901 any Section commences when agency employee receives a request, records the cases are distinct. factually The issues raised in and the analysis PGCB Commonwealth Court’s therein did not focus on the language of Section 901 pertaining to the five day period business for responding to RTKL Indeed, requests. the Commonwealth only mentioned in Section 901 Id. at 511. passing. Because of the different factual matrixes and given the of Section PGCB, 901 was not at issue in the Commonwealth Court’s in that holding simply case has no on our in bearing analysis the one before us.
Finally, reject we the policy arguments various that OOR raises in opposition to the Commonwealth plain Court’s lan- guage reading of 901. Primarily, argues Section OOR that if the five day response period business under Section 901 commences of a upon receipt request by written record officer, agency’s open-records a like OG will be inclined to act in by delaying bad faith the transmission of RTKL requests employees from its' to its
465
of the RTKL
officer,
goal
frustrate
and thus
open-records
for information.
requests
resolution of
speedy
to facilitate the
in
will act
agencies
that Commonwealth
presume
We
statutory duties under
in
their
discharging
faith
good
595
Philadelphia,
re
Auth.
Redevelopment
RTKL.
See
(2007)
341,
City
Robinson v.
241,
(citing
A.2d
345
Pa.
938
(1960) (“Public
1,
officials
A.2d
5
Philadelphia,
until
and in
faith
lawfully
good
to have acted
are presumed
averred,
case
proper
or in a
contrary
are
showing
facts
Rede
by
In re
Urban
proved.”));
averred and
Condemnation
Pa.
Pittsburgh,
Auth.
velopment
(1991)
commission,
like
city planning
that a
(noting
its duties in
perform
agency,
“presumed
government
law.”).
703 of the RTKL
Section
according
faith and
good
RTKL
requests
who receive
record
employees
obliges agency
open-records
officer.
requests
agency’s
to forward
Further,
to make
agencies
directs
specifically
Section
as
requests
promptly
to RTKL
respond
faith effort to
good
within “five business
event to
any
possible,
is received
from the date the written
The fact that the RTKL leaves Com
officer.”
open-records
of discretion in han
a measured amount
agencies
monwealth
requests
before the
reach
dling
requests
RTKL record
presumption
officer does not alter our
agency’s open-records
will follow the directives
agencies
that Commonwealth
respond promptly
make a
faith effort to
good
Section 901 and
purpose
RTKL
with the RTKL’s
requests,
keeping
resolution of record
submitted
facilitating
speedy
bodies.
government
plain
argues
also
the Commonwealth Court’s
RTKL requеstors
901 will inhibit
language reading
*24
rights under Section
exercising
statutory appeal
from
their
Specifically,
that a deemed denial occurs.
1101 in the event
holding will
contends that the Commonwealth Court’s
determining
method for
RTKL
a reliable
deny
requestors
1101 are
rights
their
under Section
statutory appeal
when
occurs.
in the event that a deemed denial
Section
triggered
to file an
with
requestors
right
1101 confers upon
within fifteen
of either a denial or
deemed
the OOR
901,
denial; while
a deemed denial occurs
according
Section
to a RTKL record
respond timely
when an
fails to
§§
65 P.S.
67.1101 and .901. As OOR
request. Compare
out,
day
if
to Section
the five business
points
pursuant
RTKL
run
responding
requests begins
record
period
that a
to an
request
from
date
is submitted
forwarded
officer, then a
know
agency’s open
requestor
records
cannot
(absent
certainty
inquiry)
may
when a deemed denial
and, correspondingly,
day
occur
when the fifteen
window for
from a
denial will
close.14
appealing
open
deemed
We
that the
between
901 and
recognize
interplay
Section
highlights
gap
Section 1101 of the RTKL
what
to be a
appears
in the statutory
processing
scheme for
RTKL record requests
However,
may
while it
that the RTKL
appeals.15
appears
sufficiently
not
of the
apprise requestors
timing of their
statutory
under
appeal rights
this does not serve
as a
for rejecting
plain meaning
valid basis
of Section 901.
(the
Walker,
plain five within RTKL record must to agencies by agency’s open- the receipt request’s business the The order of records officer. relinquished. affirmed. Jurisdiction
therefore EAKIN, SAYLOR, STEVENS McCAFFERY Justices join the opinion. a concurring opinion. files Justice CASTILLE
Chief concurring opinion. files a Justice TODD concurring opinion. files a Justice STEVENS CASTILLE, concurring. Chief Justice of footnote exception with the join Majority Opinion, I the involving in a case yet again me have to write 6.1It disturbs the stances of litigation of the implementation the oddities (the “OOR”) involving Right Records Open Office (“RTKL”). Nevertheless, I am offer compelled Law Know interpretation, RTKL is unclear and in need 16. To the extent the regulations authority promulgate legislature delegated to OOR advisory opinions, with the act. See 65 P.S. consistent issue seems, however, 67.1310(a). 67.504(a); to desire to § 65 P.S. adjudicatory alter its its role to employ these functions as well as If OOR legislative underpinning, when it dislikes it. This it cannot do. RTKL, in the disagrees legislature's with the intentions as set forth remedy that act. only is to seek an amendment to objection Majority's the term exhaustion of to the use of I have no myself statutory simply I distance from the distinction remedies. practical suggests difference 6 that a substantive drawn footnote "statutory” remedies. versus “administrative” between exhaustion of by Open Office of Records of its the characterization I also note imperative. statutory jurisdictional a remedies claim as exhaustion whether such claim Majority law is not clear *26 the a broad procedural ruling рremised upon OOR issued that, 901 of the RTKL as the Majority correctly Section concludes in Part II of the harmed the of Opinion, interests (“Donahue decision”). the of the Office Governor See 65 P.S. Nevertheless, ultimately 67.901. the OOR ruled in favor of Governor, the of the to order the declining Office release of the by records the the Office of the was agency; Governor est, handed a classic a Pyrrhic victory, victory id obtained at such a outweighs cost that it the benefit obtained.2
The of the appealed Office Governor the Donahue decision to the Commonwealth Court. the the quashing appeal, capsulized Commonwealth Court the issue as “Be- follows: cause is not petitioner aggrieved by April the 2012 order merely it, but with an disagrees against issue decided it lacks standing Order, the 2012 appeal April order.” 7/2/2013 curiam) (per (citing Ridgway’s Magnetics Co. v. Unemploy- Review, ment Comp. Bd. Pa.Cmwlth. A.2d 969 of (1990)). Nevertheless, with respect parallel declaratory count, the judgment Commonwealth Court overruled the objections, preliminary holding OOR’s that the of the Office sue, Governor did have standing premised the upon very same averment of harm by caused the Donahue decision that was insufficient merits, to confer standing appeal. On the Commonwealth ultimately agreed Court with the of Office the Governor’s of interpretation Section 901 of the RTKL. The Office of the Governor did not appeal decision of the it Court lacked pursue appeal direct of the Donahue decision. The lower Court’s “standing decision and the appeal” Office of Governor’s Pyrrhus, King Epirus, slayer 2. Reference is to of a son of Achilles and who, King sacking Troy, invading Italy Priam at the after in 280 B.C., heavy troops defeating sustained losses of his own the Roman legions at Asculum 279 B.C. how this on practical implications have inextricable concession proper over the dispute the merits of the reaches Court are before Section 901 dispute regarding merits of the The from the Common- in the direct OOR this Court of the the Office Governor granting decision wealth Court’s raises three questions. relief. The OOR declaratory judgment in Part III Majority The question second —addressed “Whether the Commonwealth Opinion of the —asks origi- over the Governor’s jurisdiction it had by finding erred of statu- alleging misinterpretation jurisdiction complaint nal ques- harm or constitutional any law in the absence tory notes, briefing question, in its Majority tion?” As stand- jurisdiction, notions of conflates the distinct Majority Op. remedies. See statutory exhaustion of ing, and 449-50, complaint, The chief A.3d at 1230-31. however, subject lacked is that the Commonwealth Court failed to of the Governor jurisdiction matter because Office Notably, the available remedies. Office statutory exhaust the *27 actual brief is not to responsive of the Governor’s statutory the exhaustion of remedies relating to arguments Instead, suggests that claim. the Office of Governor the dis- jurisdiction had over original Commonwealth Court a action is the sole means declaratory judgment because pute obtaining review of the OOR’s Section unsupported by argument premised upon The is notion— law, a relevant rules of decisional or procedure, citation to the an analysis standing appeal to administrative principled —that declaratory judgment a standing bring decision and to agency jurisdiction of the original action in the For requirements aggrievement. my distinct implicate and the of the the Commonwealth Court’s decision Office part, standing appeal is the relating Governor’s concession room, to which I “elephant” respect this proverbial following. offer the decision and the relat- standing
The Commonwealth Court’s have tenuous of the Governor by ed concession Office RTKL or of the Rules of in the of the support plain language Pennsylva- Neither the RTKL nor the Appellate Procedure. to foreclose the Appellate purport nia Rules of Procedure of a ultimate “winner” “prevailing” party —the of the RTKL аlone. Section 1801 dispute upon ground — judicial rule review of OOR provides general governing may petition “a or the file a requester decisions: rule of might required by review or other document as be court with the Commonwealth Court” within 30 Notably, date. 1301 does not mailing OOR decision’s RTKL special appealability applicable articulate rules of Meanwhile, appellate procedure governing cases. the rule of which take or 501— persons may participate appeals —Rule that, who is “any party aggrieved by appealable states ... therefrom.” to the commen- may appeal According order “[wjhether 501, to Rule not a tary party aggrieved by is question action below is substantive determined the effect of the action on the etc.” party, Pa.R.A.P. 501 & note. Reading provisions together, the relevant it is apparent dispositive party “aggrieved,” concern is whether a is which the note to Rule 501 directs is a substantive question “by determined the effect of the action on the etc.” party, I acknowledge may some decisional law be read to is, broadly that a suggest prevailing party ground on that alone, See, not aggrieved e.g., and has no appeal. Block, Inc., 417, Basile v. H & R 421-22 601 Pa. 973 A.2d (2009) (matter n. 4& narrow of whether implicating question to file party required protective cross-appeal preserve interlocutory subsequent appeal); issue for Laird v. Clearfield Co., (2007) & Mahoning Ry. (matter narrow of whether be implicating question party may aggrieved by consent order to which parties agreed); Wilson *28 Co., 563, v. Transport (Pa.Super.2005) Ins. 889 A.2d 577 n. 4 (protective cross-appeal raising upon issue which lower court pass); Wheeling Pittsburgh Corp., did not Ratti v. 758 Steel 695, (same); A.2d 700 (Pa.Super.2000) Hashagen v. W.C.A.B. (Air Chemicals, Inc.), 276, & 2 Products 758 A.2d 277 n. (same). (Pa.Cmwlth.2000) decisions, that including Other which the to upon Commonwealth Court relied dismiss
471 a more nuanced suggest appeal, initial of the Governor’s Office in employed to that to akin appeal, analysis 577 Magnetics, Ridgway’s standing to sue. See determining v. Garage City Parking Penn (citing at Wm. A.2d 970-71 (1975) conclud- 168, 269, 846 A.2d 280 Pittsburgh, either injury no that [wa]s Ridgway “assert[ed] that ing pecuniary”). immediate or notion of a with the difficulty illustrates the
This matter
“winner”
or ultimate
party
that a “prevailing”
line rule
bright
harms its
directly
a decision that otherwise
appeal
not
may
the Dona-
argues that
The
of the Governor
interests.3
Office
Attorney
City Philadel-
of the
my capacity as the elected District
In
"ag-
being directly
phenomenon of
phia,
well aware of the
I was
“prevailed.”
example, a
my office
For
grieved” by decisions in which
published
in a
Superior
Court could result
direct defense
great harm a multi-
laying
statewide rule of
opinion
down a broad
ultimately
pending
prosecutions, but nevertheless
tude of
and future
claim, leaving
prosecution up
denying the defendant relief on that
See, e.g.,
party proscription.
Commonwealth v.
against
prevailing
88,
12,
(1988)
Devers,
(criticizing Superior
Pa.
546 A.2d
15-19
519
to technicalities of
requirements
punctilious
adherence
Court's
commencing with Com-
sentencing
developed from line of cases
that
Valentin,
496,
(1978),
Pa.Super.
935
in
v.
259
393 A.2d
monwealth
articulating
Superior
while
rule
which
Court affirmed sentence
clear,
informa-
sentencing judge
tion,
make his reasons
have accurate
must
report
required,
defen-
including presentence
where
and consider
arriving
particular circumstances of offense
dant’s character and
Wicks,
305,
sentence,
Pa.Super.
265
individual
and Commonwealth v.
(1979),
Superior Court vacated sentence
the harm caused jurisdiction file the predicate standing original to action decision, the Donahue by but that the harm caused contradiction, apparent was an insufficient basis to file an view, appeal. my perceived illusory, the distinction is if not artificial; harm enough same was to confer to appeal.
I that the recognize “standing Commonwealth Court’s to colorable, was even if appeal” holding superficially ap- proach self-contradictory was of its relat- “standing” reasoning count, ing to the declaratory judgment and so the Office of the regarding standing Governor’s concession Donahue decision perhaps is an understandable litigation strategy. Ultimately, the Office of the was permit- Governor pursue declaratory ted to relief and the “standing appeal” decision had little immediate practical effect.
But, Court, for this the considerations are distinct. While I agree approving the correct Section 901 is important, this Court also has a supervisory duty to consid- er the prudential implications of its own procedural decisions for the proper judicial of the functioning system. If the us, decision were before I for one would conclude that the Office of the most certainly Governor was aggrieved by Donahue decision, an aggrievement that conferred standing for the Office of the to appeal Governor that decision to the pursuant Commonwealth Court to Rule A case like this Court, should be directly appealable to the Commonwealth discharge important direct respecting review function such disputes, and leaving Supreme Court to review the claims docket, on the discretionary via allocatur petition. petition post-conviction merits of time-barred third serial relief
premised theory upon petition that serial was extension of abandoned timely petition; imposed initial harm was caused substantial burden by requirement post-conviction on Commonwealth to brief merits of bar). Superior approach claims attendant Court’s to time OOR, and the with the RTKL difficulties ongoing Given I note there broad guidance, power provide and this Court’s consequences proce- and deleterious are unintentional the related by the Office of Governor dural concession statutory lacked a of the Governor Office suggestion First, seemingly sanctioned the lower court decision remedy. *30 pro- review to the administrative by-pass an decision in an action the by filing the procedure cess and to shortcut obtaining Court and jurisdiction of the Commonwealth original Second, declaratory the in this right review as of Court. attack on the administrative action is a collateral judgment a lower upon the to parties proceed that would enable decision decision, and in an from an OOR proof appeal burden of than concerns such as salutary prudential preservation to avoid artifices procedural these presentation Finally, of issues. limited re- burden this Court’s unnecessary upon place the Court’s miscues sources. The OOR’s and flurry a already generated the RTKL have interpreting discretionary on its accepted this has appeals Court matter has the in this approach docket. The lower court’s open litigants the door OOR potential swinging effect of this I have right to file to Court. appeals matters direct I in other matters and extensively written to these concerns reference. except by here arguments will not reiterate those 175, See, PUC, 55 A.3d Inc. v. Mercury Trucking, e.g., Records, (2012); Bowling Open 1076-79 v. Office of (2013) (Castille, C.J., dissenting). Pa. 478-80 relating the to exhaustion dispute parties The between the arcane rules is a direct result of administrative remedies proceed “cleanly” that the case did not and the fact play initial Re- from the decision. through appeals process the view, that, a general beyond dispute it is spectfully, my matter, (including Office provides agencies the RTKL Governor) an ad- remedy challenge statutory here would flow Any remedy lack of verse OOR decision. I described have aggrievement from the truncated notion of the above, of the agency’s and thus is result concession subsequent Procedure and its Rules of Appellate decision. Even ac- regarding ability OOR of the of the that it argument Office Governor cepting related to a remedy, complaint lacked a would not be “statutory” remedy procedural impediment but to a rule-based appeal.
Nevertheless, Majority’s I have little with the difficulty reject the claim the exhaustion of regarding decision to remedies, matter, in the of this statutory generis context sui (or unnecessary of the notwithstanding Office Governor’s decision to in the perhaps strategic) acquiesce Common- wealth’s on The holding appeal. Court’s reach the may parties’ dispute should merits reasons. Resolution of the on the merits prudential dispute unquestionably important is to the Office of the Governor and all other RTKL agencies subject and the OOR. The decision in Donahue affect may parties numerous аgencies, may not all of which have an to chal- opportunity lenge incurring decision before harm. In this respect, available statutory remedy inadequate to vindicate the *31 rights the multitude of interested In the mean- parties. time, the the public costs to purse accompanying agency efforts either to with the comply interpre- OOR’s non-textual tation or to challenge every unjustifia- the rule instance are ble. The OOR should consider more seriously, fairly, these when consequences fashioning seemingly shifting litigation stances. TODD,
Justice concurring. case, (“OG”) In this the Office of the a Governor seeks declaratory the judgment Open Office of Records (“OOR”) erroneously adjudica- concluded an administrative dicta, tion, in the Pennsylvania Righb-to-Know Law (“RTKL”)1 requires that an agency respond requests for records within five business days any employees’ of its thereof, receipt instead that the RTKL arguing requires only that an agency respond within five business days open of its records thereof. I receipt agree majority’s officer’s etseq. 1. 65 P.S. 67.101 albeit, explained as this may we reach
conclusion that issue— analy- well-reasoned with its reasons —and infra, for different me that the it is clear to as requirements, the RTKL’s sis of for docu- that an requires RTKL records officer’s open of its days five business ments within Majority Thus, I and IV of join parts I thereof. receipt my distinct However, express separately I write Opinion. II and III of in Parts issues addressed concerning the views Majority Opinion. Standing I. jurisprudence, view, standing our traditional under my immediate direct and any harm to of its no
OG has suffered interests, standing pursue lack ordinarily and would administra- seeks, it to await normal thus requiring relief it The ma- tive, to raise this issue. judicial, proceedings then view, is, an unac- my contrary conclusion to jority’s doctrine. our extant departure from knowledged case, Nevertheless, of this where OG in the context unique agencies governmental shoes of numerous stands in the sovereign legal their in the conduct of guidance require factual a sufficient duties, underlying provides an case where con- review, presented where the question predicate issue, agencies’ I find the procedural purely legal cerns regard- concerns our traditional guidance outweighs need for function of the of issues and the proper ing development case, and, thus, warrants in this judicial power applicable to the merits. our proceeding herein arose presented the issue majority explains,
As the for records to request Donahue emailed initially when Sean agency’s who forwarded employee, OG Thereafter, business beyond five records officer. open five business initial but within receipt, from the employee’s *32 email, the OG receipt officer’s open of the records days the denying request part granting responded, OOR, that, arguing to appealed Donahue request part. (“Section 901”),2 failure § 67.901 OG’s to 65 P.S. pursuant request receipt for "[u]pon of a written provides that 2. Section 901 record, ... good a faith effort to agency shall make access to a within five respond days employee’s receipt business of its the email be required request his “deemed denied” and that, statute, pursuant interpretations extant OOR disclose all the records required sought. Ultimately, OG adjudication, issued an with agreeing argu- OOR Donahue’s ments in that regard, denying but relief on other grounds.
Thereafter,
brought
jurisdiction
OG
dual
action in the
(1)
Commonwealth Court
review of the
seeking:
appellate
(2)
adjudication;
declaratory judgment
that OOR erred
agreeing
Donahue’s construction of Section 901. With
action,
respect
appellate
the Commonwealth Court
single
entered a
order
judge
quashing
appeal,
reasoning
OG,
below,
having prevailed
lacked
standing
appeal.
action,
respect
With
to the declaratory judgment
OOR argued
and,
that OG had suffered no harm to its immediate interests
thus, lacked
standing
pursue declaratory relief. The Com-
monwealth
disagreed, entering
a similаr single judge
finding
adjudication
order
that the
had
by
harmed OG creat-
[OG],
ing “controversy between
and uncertainty
[OOR]
... over the
proper interpretation of
[RTKL].” Common-
Donahue,
(Pa.Cmwlth.
wealth v.
376 M.D.2012
filed Aug.
2012) (order). The declaratory judgment action
proceed-
then
and,
ed to a
judge
issue,
three
panel
regarding
standing
the court refused to reconsider its earlier order. Common-
Donahue,
(Pa.Cmwlth.2013).
wealth v.
at
n.
A.3d
timely appealed
to this Court.
that,
In its
opinion,
majority reasons
notwithstanding
the fact that OOR’s announcement of its view of Section 901
dicta,
was
OG has
to maintain
the declaratory judg-
ment action because OOR’s defense of that dicta in the instant
proceedings is the functional equivalent
taking an official
“position.”
448-49,
Majority Opinion
written is received officer for an If response receipt fails to send the within five business access, request of the written the written for access shall be deemed denied.”
477
is, it will
burdens —that
administrative
imposes
because it
requests,
RTKL record
responding
the window
“shorten
the time
...
comply
it more difficult
making
thereby
of
901,”
“the likelihood
increasing
of Section
requirements
matters that OG
“the number of RTKL
and
deemed denials”
448-49,
at
98 A.3d
adjudicate with OOR.” Id.
is forced to
omitted).
(footnote
that its
majority
opines
The
further
1230
justicia-
“the
recognizing
with decisions
is consistent
holding
seeking pre-enforce-
actions
declaratory judgment
of
bility
agency’s interpretation
an administrative
ment review of
450, A.3d at
statute.” Id. at
98
governing
enforcement of a
Commonwealth,
198, 477
v.
505 Pa.
(citing
1230
Arsenal Coal
Nurses,
Commonwealth, 607
(1984);
Inc. v.
Bayada
A.2d 1333
(2010)).
I
as in
527,
disagree,
my
Respectfully,
Pa.
Petitioners ... at this they have not been issued license and there have been gaming allegations no legislators have been “handcuffed” of re- prospect Thus, turning gaming any pоssible fees. harm to Petition- such, wholly ers is on future events. As contingent they have no immediate interest in this constitutional challenge. As Petitioners have no ... immediate in challeng- interest statute], ing constitutionality we find that they [the lack standing bring challenge. to this Park, 660-61; Pittsburgh Palisades 888 A.2d at City see also Commonwealth, 542, 566, v. Phila. 838 A.2d 578 of (2003) that “abstract (noting allegations or uncertain” that a may city’s statute harm a cause reputation or decreased economic activity are not “sufficient to confer standing”). doctrine,
Consistent with this both the United States Su- preme Court and this have party may held that a not ordinarily challenge validity of an agency’s administrative legal interpretations enforcement, in the absence their where the issue except presented is adequately developed review and where the regulation at issue has a direct and is, immediate effect regulated on the where parties —that review deferring place would relief in a party seeking bind, or, double it requiring comply great to at cost in the alternative, run the risk of violating lawful statute or regula- tion and incurring onerous burdens. Abbott Labora- Compare
479
1507,
136, 149-56,
18
Gardner,
87 S.Ct.
387
v.
U.S.
tories
(1967)
authority
FDA’s
challenge to
(permitting
L.Ed.2d 681
labeling
drug
governing
regulations
certain
promulgate
deferring
and where
fully developed
issue was
legal
where
their
either discard
manufacturers to
force the
review would
prosecu
or risk
materials
promotional
and
labeling
stock of
and
stigma);
tion,
public
and
penalties,
civil and criminal
(Pa.1984)
Abbott
Co.,
(citing
Furthermore, closer, is although question OG does not conclusion, demonstrate that it assuming is OOR’s statute,4 definitive of the concerns a legal issue which is adequately developed and has a direct and immediate effect it upon deferring such that review would it in a place or, double-bind requiring compliance great cost in the alternative, the risk of running violating lawful statute or regulation and onerous incurring burdens.
First,
whether,
I question
contemplated by
the Ab-
decisions,
Coal
the instant
issue
sufficiently
bott/Arsenal
developed
determination,
for review.
this
making
we con-
sider “whether the claim involves uncertain
contingent
may
all;
events that
not occur as anticipated or at
the amount
issue;
of fact finding required to resolve the
and whether the
parties
sufficiently
action are
Twp.
adverse.”
Derry
Indus.,
v. Pennsylvania Dep’t
Lab. and
(2007).
Herein,
A.2d
OG’s сlaim necessarily assumes
that,
future,
will,
in the
RTKL requestors
contrary to the
RTKL’s requirements, submit their requests for records to
employees
officer,
OG
other than
open
records
and that its
employees will not
forward the
to the open records
in sufficiently
officer
timely manner to
him
permit
or her to
thereto
within five business
initial receipt
I have
majority’s
some concern with the
sub silentio decision to
extend the
Coal line of
outside
decisions
the context of
Abbott/Arsenal
regulations,
formal administrative
and note
Abbott decision
was,
measure,
predicated
regulations
some
on the view that such
final,
Abbott,
were
formalized decisions of the
itself. See
(noting
U.S. at
Second, view, has failed to demonstrate my OG adjudication compliance it in a dilemma of placed OOR’s cost. Ad- great where either comes noncompliance, option it dicta as to how should mittedly, may give pause OOR’s OG filed and forwarded improperly less-expeditiously deal future, do not RTKL for records in the its burdens hand, if and unavoidable. On one OG appear both substantial RTKL’s require- view of the acquiesces expressed OOR’s ments, handling may adopt procedures it have to new could some requests, require filed RTKL which improperly elaborating on the claim or expense. administrative Without evidence, would compliance OG asserts offering supporting administrative burden.” OG’s Brief at significant come “at a hand, if it deems the administrative especially On the other onerous, view, and, if reject it can neces- expense too OOR’s Thus, if a future RTKL sary, litigate question. requestor em- for records with one of OG’s improperly request files officer, employ- and if the ployees open-records other than its delays forwarding open-records ee officer, it can follow its own view of the statute and open-records receipt. within five business officer’s option if will have the point, requestor appeals, At that OG view interlocutory challenging pursuing and, thus, it a deemed denial has delay that its constitutes *37 482 hear it
jurisdiction appeal, whereupon may obtain 312; it now. 313. if Alternatively, review seeks Pa.R.A.P. Cf. review, not or obtain and OOR pursue interlocutory OG does requirements, in its enunciated view of the RTKL’s persists will opportunity OG have the and, as of and to this Court in its discretion at right maximum, Finally, be to disclose documents.5 if may required relief, interlocutory OG does not obtain and OOR reverses its position requirements, as to the RTKL’s OG will suffer no burden whatsoever.
Thus, ruling OOR’s OG to choose between what it requires unjustified views as an administrative burden or a quite remote possibility may required it be to disclose chal- view, documents. lenged my pursuant to Abbott and Coal, Arsenal these choices do not warrant from departure judicial the normal course of review to raise the question whether OOR’s current view of the statute is correct.
The
majority notes
OOR’s
of Section 901
interpretation
with a
presents
comply
potential
OG
choice to
additional
burdens,
judicial
administrative
or not to
and await
comply
10,
Majority
review.
Opinion at 456 & n.
Likewise,
Nurses,
38-office,
Bayada
1,000-employee
home care
corporation sought
challenge Pennsyl-
services
vania Department
regulation
of Labor
refusing
apply wage
and hour law’s
home
exemption
“domestic services”
health-
care
agencies’ employees,
violation of which would have
subjected it to
civil and criminal
strong
penalties. Bayada
Nurses,
Bayada
option
is faced with the
of
continuing
operations,
ignoring
Department’s
and
interpretation regarding
fines,
requirements
overtime
and risk
and
includ-
penalties
sanctions,
ing criminal
or
with what it
complying
believes
be the Department’s erroneous
and
awaiting
judicial
a
determination in
in the
subsequent
litigation,
interim
the not
cost of
bearing
insignificant
compliance.
Nurses,
contrast,
Bayada
By
Indeed,
Supreme
United States
Court’s decision in
Therein,
Toilet
Ass’n is an instructive guide.
Goods
the court
engage
refused to
in
review
pre-enforcement
FDA’s
authority
promulgate regulations
concerning inspections
facilities,
food additive manufacturing
noting
inquiry
that the
regu-
nature of the
degree
of “the
included consideration
relief.” Toilet Goods
seeking
effect on those
lation’s present
found the
Ass’n,
1520. The Court
87 S.Ct.
387 U.S.
impact
onerous because its
insufficiently
effects
regulation’s
in
subject
those
to it
immediately by
felt
would not “be
depend
instead would
day-to-day affairs” but
conducting their
to inspect:
whether the FDA decided
on
is affect-
in which
conduct
primary
This is not a situation
tested
ingredients
be negotiated,
contracts must
ed—when
substituted,
This
compiled.
regulation
or
records
special
or
may
inspec-
authorize
states that the Commissioner
merely
formulae; no advance
examine certain
processes
tors to
manufacturers, who since the
of cosmetics
required
action is
duty
a statutory
the 1938 Act have been under
enactment of
warehouse,
inspection
“factory,
reasonable
permit
fin-
establishment,
and all pertinent equipment,
or vehicle
materials; containers,
labeling
and unfinished
ished
Moreover,
consequences
no irremediable adverse
therein.”
challenge
regulation by
a later
to this
requiring
flow from
to allow this
type
inspection.
manufacturer who refuses
action,
challenged
this
regulations
Unlike the other
fines, adverse
heavy
publicity
which seizure of goods,
criminal lia-
goods,
possible
distributing “adulterated”
a refusal to admit an
comply,
failure to
bility might penalize
only
suspension
at most lead
to a
inspector here would
a determination
particular party,
certification services
an adminis-
promptly challenged through
that can then be
reviewable
a court.
trative
which
turn is
procedure,
testing
forum for
provide
adequate
review will
Such
in a concrete situation.
regulation
(citations
Ass’n,
tive and reviewed the Commonwealth Court as procedure” this in its discretion. right, majority’s I am concerned that decision to Finally, context will give extend Coal to the instant Abbott/Arsenal сonsequences. By permitting rise to unintended significant to an administrative dicta based on challenge agency’s specu- burdens, lative future administrative and the Court litigation alike, ensures that future virtually parties, private public will have a right challenge validity legal pronounce- statutes, in regulations, ments made formal and informal (and ordinances, adjudicative judicial) even dicta solely based “uncertainty” may may on the that such pronouncements accurate, not be on the that the statute purely ground regu- lates in which they engage. Granting conduct intend to such a in right virtually guarantees this Court will be embroiled ill-considered, and poorly developed, largely academic debates examining governmental other entities’ legal judgments.
Accordingly, I would not
attempt
standing
sanction
this matter under the umbrella of Abbott and Arsenal Coal.
Rather,
case,
in the fairly unique context of this
given
nature,
our application
standing
doctrine is
prudential
I am
apply
above,
inclined to
a more holistic view. As noted
this Court refuses to
advisory opinions largely
issue
out of
concern that
so
doing
practical
robs the court of the
factual
predicate and adversarial argument necessary for the resolu-
matter, however,
tion
complex legal
issues.
In the instant
case,
the need
legal guidance
than the
greater
average
OG,
as
as well as the
other
governmental
multifarious
state
subject
agencies
to the RTKL’s
have
requirements,
a sover-
eign duty
follow the law in their day-to-day responsibilities
and to do so
faithfully
the interests of the citizenry. Cf.
Co.,
Georgia
230, 237,
v. Tennessee Copper
206 U.S.
27 S.Ct.
(1907)
618, 51 L.Ed.
(noting
that the state has an interest
but,
only
not
in its own rights
g%asi-sovereign,
in the
citizens);
EPA,
property rights of its
v.
Massachusetts
(2007)
U.S.
(relying
S.Ct.
487 claim, agency’s any particular like other Indeed, although OG’s for docu- filed claim, improperly will receive that it assumption а fair it seems speculative, in the future is ments state, the issue that, bulk of the administrative the vast given the affect- in the future across regularity with some will arise ap- its Moreover, has abandoned although OG ed agencies. decision, directly arise arguments from the Donahue peal case, provides that Donahue in that such from conduct OOR’s issues presented. consideration of the practical for the context not be may and Likewise, supra, as noted OG although, the substantive respect with parties adversarial sufficiently records, essentially challenged OG has controversy over OG’s defend the case likely jurisdiction such that OOR OOR’s the disclosure OG’s party seeking akin to a vigor issue of purely legal that the issue is Finally, given records. concerning exclusively procedural statutory interpretation review will taking up that I am less concerned question, the substantive questioning court in precipitous embroil this Thus, government. branch of of another policy judgments majority’s I view as the broad join I not what although do doctrine, have far- which could reframing cases, I the agen- in future find that consequences reaching of circum- peculiar under this set guidance cies’ need for our underlying the concerns substantially outweighs stances I am to reach willing and standing approach, traditional standing. lacks claim OG notwithstanding merits Exhaustion II. the exhaustion of requiring the doctrine respect
With remedies, ex- with the sentiments agree I administrative in his majority and Chief Justice Castille pressed by of this case circumstances Concurring Opinion unique major- that rule. As dispensation regarding warrant some exhaustion of adminis- requiring the doctrine recognizes, ity “the administrative way where may give trative remedies of the issue to contribute to the decision nothing has process ... decision” for postponing there are no reasons special proliferation to avoid the the issue now serves deciding tidy “a lawsuits” providing multiplicity duplicative “a resolution,” principles plainly applicable and both are global at at Majority Op. the instant matter. See A.3d 1233- (internal omitted); see also quotation citations marks C.J.) (Castille, 471-73, at 1244- Concurring Opinion A.3d 45.6 benefit that marginal delaying Given consideration garner, reaching would substantial burden alleviate, willing issue now would I am to reach the merits *42 notwithstanding OOR’s claim OG has failed exhaust its administrative remedies. STEVENS, concurring.
Justice
I join
majority
in its
I write
entirety.
separately,
however, to reaffirm my
of the
support
importance
(RTKL).1
Law
This
of law
Right-to-Know
body
plays
fundamental,
role in the
significant
Pennsyl
administration of
vania government
promotes
broad
between
transparency
public
government
By
officials.
access to
allowing
official government
public
records that the
would
be
ordinarily
obtain,
unable to
the RTKL
gives
public
power to
secrets,
officials,
prohibit
scrutinize the acts of
public
make those officials accountable for their
public
use of
funds.
(Pa.Cmwlth.
Coulter v. Dept.
Welfare,
Public
1. 65 P.S.
67.101 et.
notes
on the record
does not aid the
requestor
readily determining
might
when a deemed denial
occur
statutory appeal rights
when
triggered
his or her
are
under Section
gap
15. Indeed this is not the
time that
first
this Court has noted a
in the
judicial
process existing
administrative and
review
in the RTKL. See
PSEA,
C.J.,
(Castille,
concurring);
A.3d
1278-81
SWB Yankees
Wintermantel,
(2012).
v.
LLC
Notes
The notes decisional Accordingly, prudential implicates jurisdictional or concerns. statutory Majority Opinion addresses the exhaustion of extent that the concern, adopting expression as jurisdictional I view the remedies as a pro- by parties rather than a doctrinal used the nomenclature applicable across the board. nouncement observations which following regarding procedure this case reached the Court. dispute originated request The before the Court by reporter records submitted Office of Governor. and, The refused the in the subsequent appeal,