PA Office of the Governor v. B. Brelje (OOR)PA Office of the Governor v. B. Brelje (OOR)
FILED: February 23, 2024
Pennsylvania Office of the Governor (Governor‘s Office) petitions for review of the Office of Open Record‘s (OOR) Final Determination granting in part and denying in part the request of Beth Brelje (Requester) seeking emails of two individuals under the Right-to-Know Law (RTKL).1 After careful review, we affirm in part, reverse in part, and remand.
I. Background
A. Factual and Procedural Background
On January 6, 2022, Requester filed two RTKL requests, one seeking “[a]ll incoming and outgoing email for Deputy Press Secretary Emily Demsey, Dec. 1-Dec. 10” and the other seeking “[a]ll incoming and outgoing email for Press Secretary Elizabeth Rementer, Dec. 11-Dec. 31” (Requests). (Reproduced Record (R.R.) at 6a-7a.) The Governor‘s Office provided an interim response to Requester on January 13, 2022, indicating that it would need an extension of time pursuant to Section 902(a)(1), (3), (4), and (7) of the RTKL,
On February 14, 2022, the Governor‘s Office denied the Requests. (Id. at 3a.) The Governor‘s Office determined that the Requests were not sufficiently specific pursuant to Section 703 of the RTKL,
That same day, Requester appealed to the OOR. (Id. at 1a.) Requester argued that the Requests were “so clear and specific that if . . . anyone with basic email knowledge, were sitting at a computer with access, the requested documents could easily be found in moments.” (Id. at 2a.) Requester asserted that the Requests satisfied each of the Carey factors. (Id.) On February 25, the Governor‘s Office submitted a position statement. It characterized the requirement that the request identify the “subject matter” of the request as “a wholly appropriate and necessary point of inquiry.” (Id. at 18a.) It took the position that because the Requests were not sufficiently specific, it was “not able to compile and review all рotentially responsive records.” (Id. at 19a.) However, it specifically requested “the opportunity to review and provide more detailed information regarding sufficient bases to withhold or redact those privileged or exempt records” in the event the OOR did not agree the Requests were insufficiently specific. (Id. at 20a)
The Governor‘s Office also submitted an affirmation (Affirmation), sworn by its
B. The OOR‘s Final Determination
In its Finаl Determination, the OOR likened the emails at issue in this case to those sought by the requester in Easton Area School District v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012), and our recent unreported decision in Methacton School District v. Office of Open Records (Pa. Cmwlth., No. 250 C.D. 2021, filed December 28, 2021). It reasoned that by focusing on two individuals’ communications within a short period of time, the Requests were sufficiently specific to pass muster under Carey. The OOR then rejected the Governor‘s Office‘s argument that it should have the opportunity to “review and provide more detailed information regarding sufficient bases to withhold or redact privileged or exempt records.” (Final Determination at 6 (quotation marks omitted).) However, the OOR construed this argument as a request to bifurcate the proceeding, and it declined to do so. It explained that “[b]ecause there is no statutory mechanism enabling the OOR to bifurcate an appeаl, the [Governor‘s] Office was required to raise all of its arguments and support them with evidence in the normal course of the appeal.” (Id.) It did, however, permit the Governor‘s Office to redact email addresses, phone numbers, and other sensitive information upon its review per Section 708(b)(6)(i)(A) of the RTKL,
C. Issues
Before this Court, the Governor‘s Office raises three issues, reordered for ease of disposition, asking us to determine: (1) whether the OOR erred in finding the Requests to be sufficiently specific; (2) whether the OOR erred in determining the Governor‘s Office‘s request for further rеview with respect to privilege and exempt records was insufficient in light of Pennsylvania State System of Higher Education v. Association of State College and University Faculties, 142 A.3d 1023 (Pa. Cmwlth. 2016) (PASSHE); and (3) whether the OOR erred in disregarding substantial evidence that the records at issue were exempt and privileged. (Petition for Review ¶ 4(a)-(c).)
II. Discussion
A. General Legal Principles
1. The RTKL
“[W]hen the General Assembly replaced the Right to Know Act4 in 2009 with the current RTKL, it ‘significantly expanded public access to governmental records . . . with the goal of promoting governmental transparency.‘” Pa. State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017). Consistent with that focus on transparency, the RTKL created a statutory presumption that “record[s] in the possession of a Commonwealth agency or local agency” are
2. Standard and Scope of Review7
Pursuant to Chapter 13 of the RTKL, with respect to appeals relating to decisions of Commonwealth agencies, this Court is the ultimate factfinder in RTKL disputes.8 Section 1301 of the RTKL,
B. Sufficient Specificity
1. Arguments
The Governor‘s Office first argues that because the Requests did not specify a specific subject matter, but rather only the identities of the individuals and a timeframe, the request is insufficiently specific. It argues the request must identify the transaction or activity at issue, pointing to Carey and Pennsylvania Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Cmwlth. 2015). The Governor‘s Office attempts to distinguish Baxter by focusing on two factual differences: First, that the school district had аlready identified records, and second, that the school directors at issue there were part time. By contrast, the individuals whose emails are at issue here are “full time, high-ranking administration employees” who “engage in business that conceivably relates to any or all of the Commonwealth‘s executive agencies.” (Governor‘s Office Brief (Br.) at 12.) It contrasts the “vast operations” of the two individuals here from the school directors in Baxter, faulting Requester for failing to “include even a single topic about which” Requester seeks records. (Id. at 13.) It urges this Court not to give weight to Methacton for similar reasons. Pointing to federal Freedom of Information Act9 caselaw, the Governor‘s Office explains that the inquiry should be “highly context specific.” (Id. at 11 (quoting Nat‘l Sec. Counselors v. Cent. Intel. Agency, 898 F. Supp. 2d 233, 278 (D.D.C. 2012)).) In its view, “reliance on Baxter in this circumstance fails to accommodate the ‘context sensitive approach[.]‘” (Governor‘s Office Br. at 13.) Finally, the Governor‘s Office asserts that Baxter‘s holding has been eroded by subsequent cases.
2. Our Sufficient Specificity Jurisprudence
The RTKL requires written requests to “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested[.]”
We first had occasion to examine Section 703‘s sufficient specificity requirement in Pennsylvania State Police v. Office of Open Records, 995 A.2d 515 (Pa. Cmwlth. 2010) (PSP), some two years after the RTKL‘s enactment. The request at issue there asked for “[a]ny and all records, files, or manual(s), communicatiоn(s) of any kind, that explain, instruct, and or require officer(s) and Trooper(s) to follow when stopping a Motor Vehicle[.]” Id. at 515-16 (emphasis omitted). We succinctly explained that the “any and all records” part of the request “[was] insufficiently specific for the PSP to respond to the request.” Id. at 517.10 However, “‘manuals’ relating to vehicle stops . . . [was] specific and does provide a basis for the PSP to respond.” Id. PSP reveals that, from the beginning, this Court has not found requests that, quite simply, seek everything, to be sufficiently specific. We implied that there must be some limiting principle—in PSP, subject matter (i.e., manuals)—to give the agency a place to start.
Next, in Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Cmwlth. 2011), we reasoned that a request seeking “all emails between the [township s]upervisors regarding any [t]ownship business and/or activities for the past one and five years” and “all emails between the [township s]upervisors and the [t]ownship employees regarding any [t]ownship business and/or activities for the past one and five years” were
Baxter, a perfect foil to Mollick, provided our next opportunity to consider a request for emails. Specifically, that requester sought “all emails sent and received between Oct[ober] 1 and Oct[ober] 31 for email addresses of nine school board members, the school district superintendent[,] and the general school board address.” 35 A.3d at 1260 (brackets and quotation marks omitted).11 We reasoned that request was sufficiently specific noting that it limited its focus to a specific type of record within a finite 30-day period, and it sought information from a limited number of email addresses. Id. at 1265. The fact that the school district had already “identified potential records included within the request” confirmed our conclusion the request satisfied Section 703‘s standard.12
That same year, this Court had its first, and to date, only, opportunity to consider Section 703‘s sufficient specificity requirement sitting en banc. In Montgomery County v. Iverson, 50 A.3d 281 (Pa. Cmwlth. 2012), we considered whether a request seeking “all email records” between a given mail domаin and three other domains, containing 14 search terms, was sufficiently specific. Comparing that request with Mollick, we were persuaded that it failed for similar reasons. Because “[t]he request[s] provide[d] no timeframe . . . [and did] not identify specific individuals, email addresses, or even departments[,]” we reasoned that “[t]here [was] not context within which the search [could] be narrowed.” Iverson, 50 A.3d at 284 (emphasis added). We were careful to explain that “some subject matter context may be necessary, as a practical matter, to narrow an otherwise overly broad request down to a request that sufficiently informs
We further exhibited our developing balancing approach, and the importance of timeframe, in Carey. That request sought all communications, not just emails, regarding, inter alia, certain transfers between a state correctional institution and a Michigan facility. With respect to that request, we were satisfied it was sufficiently specific because the requests there “specifie[d] a subject matter, a finite timeframe[, approximately four years,] and [sought] a discrete group of documents, either by type, as communications, or by recipient[.]” 61 A.3d at 372.14
In Pittsburgh Post-Gazette, we attempted to canvas those prior cases, and synthesizing them, we announced what we called a balancing test. Specifically, we read our cases to suggest three factors that require consideration. First, with respect to subject matter, the request must identify a transaction or activity. Second, the scope must “identify ‘a discrete group оf documents, either by type . . . or by recipient.‘” 119 A.3d at 1125. And finally, the “timeframe of the request should identify a finite period of time for which records are sought.” Id. at 1126. Importantly, we described the timeframe prong as “the most fluid of the three . . . and whether or not the requester‘s timeframe is narrow enough is generally dependent upon the specificity of the request‘s subject matter and scope.” Id. Accordingly, if a request is extremely specific with respect to subject matter and scope, it may be less important to identify a finite timeframe. By contrast, “an extremely short timeframe will not rescue an otherwise overbroad request, except for in the most extraordinary circumstances.” Id. We cited Baxter as one such “extraordinary” request. Id.
Having set forth the test, the Pittsburgh Post-Gazette Court proceeded to find a request for “[a]ll of the emаils of [the] Acting Secretary of Education . . . as they pertain to the performance of her duties as Acting Secretary since she was appointed on Aug[ust] 25, 2014 to date” insufficiently specific. Id. at 1123 (footnote omitted). Although that request limited itself to a finite, 347-day timeframe and limited its scope to the emails of one government official, it failed to adequately address or specify the subject matter of the request. Id. at 1126. We specifically noted that the timeframe was not short enough to outweigh the lack of subject matter specificity.
In the next reported case dealing with sufficient specificity head on, the request at issue sought, relevant here, correspondence with respect to certain budget and financial reports originating from a university
Next, and particularly relevant here, in Commonwealth v. Engelkemier, 148 A.3d 522, 530 (Pa. Cmwlth. 2016), we were called on to evaluate whether a request for emails over approximately five months, relating to 109 key words, from the Gоvernor‘s chief of staff was sufficiently specific. Procedurally, the Governor‘s Office asked for a 30-day extension. However, after explaining that it “received the results of the IT forensic search . . . [of] thousands upon thousands of pages[,]” the Governor‘s Office asked the requester to provide “subject(s) matter(s) [sic] so that the agency may begin to review these records in a more systematic fashion.” Id. at 524-25. At the appeals officer stage, the Governor‘s Office provided a privilege log, as well as an affidavit, to support specific exemptions. There, the appeals officer ultimately concluded that the email request was sufficiently specific.
The Engelkemier Court began its analysis by noting that timeframe and scope counseled in favor of sufficient specificity. However, its concern was subject matter, namely, the list of 109 keywords the requester provided. Id. In the course of its analysis, the Court mentioned that, after receiving the requester‘s keywords, the Governor‘s Office did not seek further clarity of narrowing from the requester. It then said that it would try to engage in a rolling production of the emails. Therefore, the Court rejected the Governor‘s Office argument that the request was not sufficiently specific to identify the universe of documents requested due to the responses the Governor‘s Office provided, and its conduct, during the request. It explained:
If the [Governor‘s] Office had any lingering concerns over the specificity of the request, it should have raised the spеcificity concern at that time. It did not. It clearly acted as if it had sufficient information upon which it could fully process [the r]equester‘s request and, based on that representation, secured from [the r]equester an extension of time and agreement to a rolling production schedule.
Id. at 532. Possible lack of specificity in the lengthy list of potentially broad keyword terms was outweighed by the narrow timeframe and scope of the records. Id. at 532-33.15
In Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119 (Pa. Cmwlth. 2017), this Court, looking to the Pittsburgh Post-Gazette factors, found two requests related to emails sufficiently specific: first, a request for “[a]ll e[]mails, memos and letters exchanged by the [District Attorney] and the [City of Philadelphia‘s (City)] Office of Innovation and Technology between July 1, 2013 and October 1, 2014 pertaining to searching for e[]mails on the [City‘s] email servers
Finding the requests sufficiently specific, we emphasized that the requests at issue sought “a ‘clearly defined universe of documents.‘” Id. at 1145.16
Stepping back, we observe that Pittsburgh Post-Gazette sets forth a useful framework in that it provides us a vocabulary as to three specific features of requests we may need to consider in determining whether a request is sufficiently specific under Section 703. However, Pittsburgh Post-Gazette did not set forth a conjunctive, bright-line rule requiring each “element” of the test to be satisfied; rather, it set forth a flexible approach, consistent with the cases it summarized. Bagwell underscored the flexibility of the test, and the post-Pittsburgh Post-Gazette vitality of Iverson, noting that “although Iverson was decided prior to this Court‘s clear recitation of the sufficiently specific test in Pittsburgh Post-Gazette, the reasoning in Iverson highlights the flexible, case[-]by[-]case, contextual application of the test.” Bagwell, 155 A.3d at 1144-45 (emphasis added).17 Indeed, we agree that “[t]here is no bright-line rule absolutely requiring a requester to precisely identify the subject matter of the requested record. The absence of a stated subject matter is but one factor to consider[.]” Methacton, slip op. at 3-4.
We are also mindful that Bagwell and Methacton‘s reminder of the necessarily context-sensitive and case-by-case approach required by Section 703 coheres with the statutory text—our polestar in this inquiry—which sets as the standard whether the requester has “identifi[ied] or describ[ed] the records sought with sufficient specificity” such that the “agency [can] ascertain which records are being requested.”
Of course, the classic example of such a test is the multifactor test to determine whether a given worker is an employee or independent contractor. “While no hard and fast rule exists . . . certain factors are required to be taken into consideration . . . [and] no one factor is dispositive[.]” Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 1162 (Pa. Cmwlth. 2016). See also Brentwood Borough Sch. Dist. v. HSBC Bank USA, 111 A.3d 807, 813 (Pa. Cmwlth. 2015), aff‘d sub nom. Brentwood Borough Sch. Dist. v. Held, 139 A.3d 187 (Pa. 2016) (per curiam) (setting forth multifactor test to determine whether a dwelling is “vacant“). Just like the multifactor tests we use to determine whether we can classify a given worker as an independent contractor, or whether we can classify a given property as vacant, the Pittsburgh Post-Gazette test (a nonexclusive, multifactor test) helps us think about whether we can classify a given request as sufficiently specific.
In determining whether a given request can be classified as sufficiently specific, courts must consider, consistent with Pittsburgh Post-Gazette, the extent to which the request specifies subject matter, the extent to which it defines the scope of the records it seeks, and the extent to which it limits the timeframe of the request. Consistent with Baxter and Methacton, no one factor is dispositive, and consistent with Iverson, we must not ignore the case-by-case nature of this inherently fact-sensitive inquiry.
3. Analysis
We next look to the Requests at issue in this case in light of those observations about the law. First, as the Governor‘s Office points out, it may be true that the Requests here do not specifically point to the precise transaction or activity about which Requester desires information. However, as just discussed, subject matter is “but one factor to consider.” Methacton, slip op. at 4. What is more, the PASSHE Court, looking to the emails and records requested there, reasoned that specifying the official and the university with which they were associated sufficiently delimited the subject matter. PASSHE, 142 A.3d at 1030. We would also note that, although the Requests do not focus on a particular transaction or activity in a strict sense, they do focus on two specific individuals, which necessarily, as the PASSHE Court observed, serves to limit the subject matter. Further, communication via email, is, as a matter of plain language, an activity of the Governor‘s Office, such that we are satisfied that it could amount to a specifically
Next, we turn to scope. It is clear that these Requests “identify a discrete group of documents[,]” namely, emails. Pittsburgh Post-Gazette, 119 A.3d at 1125 (internal quotation marks omitted). Indeed, we find it difficult to distinguish the Requests at issue here from the request in Baxter, where we reasoned that limiting the request to a finite number of email addresses, a specific type of record (emails), within a 30-day time period was sufficiently limited in scope.
And finally, the timeframes here—10 days and 21 days—are narrower than Baxter‘s month-long period, Engelkemier‘s 5-month period, or Methacton‘s 4-month period. If there were any doubt as to the first two factors, the Requests make it clear that Requester has adequately specified the records Requester seeks—in other words, the three factors, considered togеther, evince a sufficiently specific request because the Requests seek “a clearly-defined universe of documents.” Dep‘t of Env‘t Prot. v. Legere, 50 A.3d 260, 265 (Pa. Cmwlth. 2012).
The recent unreported decisions cited by the OOR and the Governor‘s Office further support this conclusion. In Methacton, slip op. at 2, the school district pressed an almost identical theory in objecting to a request for emails, namely that in failing to identify a specific transaction or activity, the request was not sufficiently specific. That request involved all emails sent and received by four school district employees during four separate one-month spans. Id. at 1. We rejected the school district‘s specificity argument out of hand, noting that “[t]here is no bright-line rule absolutely requiring a requester to precisely identify the subjеct matter of the requested record. The absence of a stated subject matter is but one factor to consider[.]” Id. at 3-4. Notably, the request in Methacton was directed to more employees, and for longer time periods, than the Requests at issue here.18
By contrast, Keystone Nursing and Rehab of Reading, LLC v. Simmons-Ritchie (Pa. Cmwlth., No. 1631 C.D. 2018, filed January 3, 2020), is readily distinguishable. The requester there asked for ”all correspondence sent and received (including text messages and memos)” from four individuals within a 48-day timeframe. Slip op. at 39 (emphasis in original). We reemphasized the importance of considering all factors, not just one. And there, we specifically contrasted cases involving only emails, like Baxter, with the then-pending request, with ”all correspondence through all mediums, electronic and written, sent and received by four named individuals over a 48-day timeframe.” Id. at 41 (emphasis in original). Again, here, like Baxter, requester seeks only emails, not the breadth of materials sought by the requester in Simmons-Ritchie.
Finally, and most important, the statutory text confirms our conclusion. As discussed above, the General Assembly specifically couched the sufficient specificity requirement within a concern that the request “enable the agency to ascertain which records are being requested.”
C. Additional Time under PASSHE
We next consider the Governor‘s Office‘s argument that the OOR erred in declining its request to review and provide more detailed information with respect tо potentially privileged and exempt records in light of PASSHE. It argues that PASSHE suggests a remand to the OOR would be proper for it to consider, inter alia, the other exemptions proffered by the Governor‘s Office. It asserts that the OOR erred in believing the Governor‘s Office failed to seek an extension pursuant to PASSHE.
We begin with the structure of the RTKL itself. While the RTKL creates a presumption that records in the possession of an agency are public, the presumption does not apply if the record is “exempt under Section 708 of the RTKL, the record is protected by a privilege, or the record is exempt from disclosure under any other federal or state law or regulation or judicial order.” Engelkemier, 148 A.3d at 533. The burden is on the agency, by a preponderance of the evidence, to prove a record falls into one of the exemptions. Id. at 534 (citing
We agree with the Governor‘s Office that the OOR erred in concluding that the Governor‘s Office raised its PASSHE argument either at the wrong time, or in the wrong manner. (See Final Determination at 7 n.6 (“Notably, at the outset of the appeal, the [Governor‘s] Office did not seek an extension from the OOR pursuant to [PASSHE], for the purpose of gathering and reviewing the responsive emails.“).) First, the Affirmation details the applicable exemptions, noting specifically why such exemptions are very likely to apply based on the nature of the jobs and activities of the individuals to whose emails the Requests relate. (R.R. at 21a-25a.) Further, our Supreme Court has cited PASSHE, quite simply, for the proposition that an “agency . . . may request an extension of time [before the OOR] in which to comply with a RTKL request.” McKelvey v. Pa. Dep‘t of Health, 255 A.3d 385, 404 (Pa. 2021). Recently, observed that an agency‘s “failure to review the responsive documents and provide details as to why they fall within this exception, or to request additional time to do so, PASSHE, 142 A.3d at 1031-32, prevents a determination of whether a particular document involved was created during the course of a noncriminal investigation.” Pa. Pub. Util. Comm‘n v. Friedman, 293 A.3d 803, 831 (Pa. Cmwlth. 2023) (second emphasis in original). Upon review of the record, we are satisfied that, although it did not cite PASSHE itself in its position statement, the Governor‘s Office explicitly asked for additional time to identify records and conduct a legal review of exemptions. (See R.R. at 20a (“[T]he [Governor‘s] Office respectfully request[s] the opportunity to review and provide more detailed information regarding sufficient bases to withhold or redact those privileged or exempt records.“).)
The Affirmation—properly before the OOR—gives us pause. The Affirmation here establishes that among these emails there are almost certainly records relating to, inter alia, “military, law enforcement and homeland security operations . . . including 911 recordings.” (Affirmation ¶ 12.) The Affirmation explains that disclosure is “reasonably likely to jeopardize or threaten public safety or preparedness” and there exists a “reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure[.]” (Id. ¶ 12(b)-(c).) Here, the Governor‘s Office asserted exemptions and asked for extra time. To deprive the Governor‘s Office of the opportunity to cull the records and identify exemptions would thwart the General Assembly‘s intent in enacting the RTKL to keep certain classes of records protected from public disclosure. Levy, PASSHE.
Accordingly, we conclude the Governor‘s Office properly requested an extension of time, pursuant to PASSHE, to identify responsive records and make exemption determinations, as an alternative argument to its insufficient specificity position. The OOR erred in concluding otherwise. Therefore, we vacate the Final Determination of the OOR insofar as it deemed this issue not properly raised and remand to allow the Governor‘s Office reasonable additional time to identify responsive records and claim specific applicable exemptions.20
III. Conclusion
For the foregoing reasons, we affirm the Final Determination of the OOR insofar as it found the Requests sufficiently specific. However, we vacate the Final Determination to the extent it concluded the Governor‘s Office had failed to request extra time pursuant to PASSHE. Therefore, we remand with instructions that the OOR provide the Governor‘s Office reasonable time to identify the records and claim applicable exemptions.
RENÉE COHN JUBELIRER, President Judge
ORDER
NOW, February 23, 2024, the Final Determination of the Office of Open Records in the above-captioned matter is AFFIRMED to the extent it found the requests in the above-captioned matter sufficiently specific and VACATED to the extent it concluded the Office of the Governor had failed to request extra time pursuant to Pennsylvania State System of Higher Education v. Association of State College and University Faculties, 142 A.3d 1023 (Pa. Cmwlth. 2016). Accordingly, this matter is REMANDED, and the Office of Open Records is ORDERED to provide the Office of the Governor reasonable time to identify responsive records and claim applicable exemptions, after which the Office of Open Records shall issue a new determination.
Jurisdiction is relinquished.
RENÉE COHN JUBELIRER, President Judge
Notes
Carey, 61 A.3d at 372.[(i)] all communications by [the Department of Corrections] to others regarding the transfers of inmates from Pennsylvania to Michigan, and the reverse, over a finite period of time . . . describ[ing] the specific types of communications sought, ‘including emails, texts, phone messages, fax[es][;]’ . . . [(ii)] all records and communications of government individuals or entities regarding the transfer of Pennsylvania inmates to Michigan generally[;] . . . [(iii)] information related to [the r]equester‘s transfer and recommitment[;] . . . [(iv)] all records that were provided to the transferred inmates, before, during, and after their transfer[;] . . . [and (v)] ‘all documents/communications which may indicate’ the identities of those who authorized the transfers.