PENNSYLVANIA OFFICE OF ATTORNEY GENERAL, Petitioner v. The PHILADELPHIA INQUIRER, Respondent.
Commonwealth Court of Pennsylvania.
Decided Nov. 19, 2015.
Argued Sept. 16, 2015.
Accordingly, because the Board had no reasonable basis whatsoever to find that Mr. Sandusky was an employee of PSU when the underlying actions occurred; we reverse the Board‘s order, reinstate the pension benefits, and remand this case to the Board for a determination of the legal rate of interest due and owing in accordance with this decision and pay all amounts due.
Judge COHN JUBELIRER did not participate in the decision in this case.
ORDER
AND NOW, this 13th day of November, 2015, we reverse the order of the Pennsylvania State Employees’ Retirement Board (Board) in the above-captioned matter and remand this case to the Board for a determination of the legal rate of interest due and owing and pay all amounts due.
Jurisdiction relinquished.
Terry L. Mutchler, Philadelphia, for respondent.
BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. MCGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.
OPINION BY President Judge DAN PELLEGRINI.
The Pennsylvania Office of Attorney General (OAG) petitions for review of a determination of its designated Right-to-Know Law (RTKL)1 Appeals Officer (Appeals Officer)2 finding that the receipt and transmission of pornographic emails is an “activity” because it memorializes an employee‘s improper use of time and resources making it a “public record” within the meaning of Section 102 of the RTKL,
In August 2014, Amy Warden, a staff writer for the Philadelphia Inquirer (Requestor), submitted a RTKL request to the OAG seeking copies of all emails that
The OAG‘s designated right-to-know Officer denied the request for the personal emails determining that:
- because a request seeking emails of a personal nature or that “are professionally inappropriate” was not sufficiently specific description as required by Section 703 of the RTKL5 for the OAG to search and identify subject to the request. Moreover it was not sufficiently specific because in defining “pornographic,” it relied on the definition of that term in Black‘s Law Dictionary (6th Ed.) to discern if some responsive documents exist;
- the request was burdensome because it “seeks records over an almost ten year period of time between a large universe of individuals;
- to the extent the requested “pornographic” emails exist, they were not disclosable “records” under the RTKL because their contents do not “document a transaction or activity” of the OAG and they were not “created, received, or retained” by the personnel in connection with their position as public officials to further OAG business; and
- even if the emails are “records,” they are exempt from disclosure under the non-criminal investigation exemption in Section 708(b)(17)(vi)(A) of the RTKL6 “because they have now become part of an ongoing internal investigation” of the violation of OAG policies on the appropriate use of its equipment that would reveal the progress or result of this investigation.
Requestor appealed to the OAG‘s designated Appeals Officer.
The Appeals Officer initially determined that because the request for “personal” or “inappropriate” emails was not sufficiently specific under Section 703 of the RTKL for the OAG to respond to the request, the OAG did not have to comply with that portion of the request. However, she found that the request for “pornographic” emails was sufficiently specific to allow the
The Appeals Officer also determined that the request could not be denied on the basis that the emails are not a “record” or “public record.” She noted that “[n]ot all emails are records” and that this Court “has held that not all emails are accessible under the RTK[L] simply because they evidence ‘communications of a public official.’ Such a broad construction would ignore those decisions emphasizing content and interpreting ‘records’ in the context of emails.” (RR at 31) (citations omitted). Finding that while the requested emails do not prove, support or evidence a transaction in which the OAG is engaged, the use of emails to transmit pornographic material is an “activity” documenting an employee‘s improper use of an agency‘s time and resources making it a “record” within the meaning of the RTKL. (Id. at 32-33).
The Appeals Officer further determined that the non-criminal investigation exemption of Section 708(b)(17)(vi)(A) required the OAG “to demonstrate that ‘a systematic or searching inquiry, a detailed examination, or an official probe’ is being conducted regarding a noncriminal matter.” (RR at 34) (citation omitted). She explained that the OAG did not offer any affidavits to support the conclusory statements of the right-to-know Officer that the emails may be relevant to an investigation of OAG policies and the appropriate use of OAG equipment which would reveal the progress or result of the OAG investigation. She noted, “In fact, there is no evidence of an actual investigation except for the statement of the RTK Officer.” (Id. at 35). The Appeals Officer stated that it was the OAG‘s burden to rebut the presumption of “public record” in Section 305(a) by a preponderance of the evidence and that “a bold statement made by the RTK Officer in her letter is not sufficient” because “it does not constitute evidence—much less a preponderance—to establish either that an ongoing investigation is in process or that the requested emails bear any relationship to such an investigation.” (Id.).
As a result, the Appeals Officer directed the OAG to produce copies of all email traffic involving pornographic material to and from the work accounts of current and former OAG office staffers and other current and former state officials from 2005 to the present, including all participants in the email chains and including the actual emails from their point of origin on. The OAG then filed the instant petition for review.7
The core issue on appeal is whether personal emails are public records within the meaning of the RTKL so that the agency is compelled to produce them under a RTKL request because they document the conduct of that agency.
In making a determination that the information sought is a “public record,” a requestor must establish that the information sought falls within the definition of a “record” of the agency as defined in Section 102 the RTKL. Office of Governor v. Bari, 20 A.3d 634, 640 (Pa.Cmwlth.2011). To establish that it is a public record, “the
We addressed whether private emails using a public email address are public records in Easton Area School District v. Baxter, 35 A.3d 1259 (Pa.Cmwlth.), appeal denied, 617 Pa. 641, 54 A.3d 350 (2012). In that case, the requestor sought all emails sent from and received by the email addresses of nine school board members, a school district superintendent, and the general school board for a one-month period. The school district denied the request on various grounds, but the Office of Open Records reversed and directed the school district to provide all responsive emails subject to the redaction of “personally identifiable information.” On appeal, the trial court held that because the emails were sent and received from school district email addresses, were stored on the school district‘s server, and were the school district‘s property under its “Acceptable Use Policy,” they were public records subject to disclosure under the RTKL subject to the appropriate redactions.
On appeal to this Court, the school district again argued, inter alia, that the emails to or from individual school board members’ email addresses do not qualify as public records subject to disclosure under the RTKL. We examined case law from other jurisdictions8 and concluded:
The requirement that an email must document a “transaction or activity of the agency” is essential for a record to be a public record. This is illustrated by our decision in Mollick v. Township of Worcester, 32 A.3d 859 (Pa.Cmwlth.2011). In that case, we held that notwithstanding the fact that the emails were sent on personal computers using personal email addresses and on personal time, nonetheless, the emails sent between township supervisors were “records” under the RTKL because those records documented a transaction or activity of the township. What makes an email a “public record,” then, is whether the information sought documents an agency transaction or activity, and the fact whether the information is sent to, stored on or received by a public or personal computer is irrelevant in determining whether the email is a “public record.”
Acknowledging those cases, Requestor contends that while the requested emails do not document an agency transaction or activity per se, they become a public record because they document a violation of agency policy and that transforms them into an “activity of the agency” and makes them a public record under the RTKL.9 If that reasoning were to be adopted, that would mean that if an employee sends what are purportedly pornographic emails, uses the government email for business, or just overuses the email system, those emails would also be subject
Finally, in Schill v. Wisconsin Rapids School District, 327 Wis.2d 572, 786 N.W.2d 177 (2010), the Wisconsin Supreme Court examined a request for all emails of public school teachers sent and received via school district email accounts on school district-owned computers. Ruling that such emails were not records under Wisconsin‘s Public Records Law, the Court stated that “while government business is to be kept open, the contents of employee‘s personal emails are not a part of government business” simply because they are sent and received on government email and computer systems. Id. at 183. [(Footnotes omitted)].
In this case, the records sought are emails that were either sent to or from an OAG email address or retained by the recipient in violation of OAG policy. The fact that they were sent, received or retained in violation of OAG policy does not transform what was not a public record into a public record under the RTKL. For emails to qualify as records “of” an agency, we only look to see if the subject-matter of the records relate to the agency‘s operations. None of the requested emails remotely relate to OAG operations or any “transaction” or “activity” of that agency. The emails only related to personal activity of individuals.10 While the public has the right to access “records” relating to OAG employees and its “transactions” or “activities,” the RTKL does not compel disclosure of all OAG emails solely on the basis that they violate OAG policy. As a result, the requested emails are not disclosable as records under the RTKL merely because they were sent or received using an OAG email address or by virtue of their location on an OAG computer in violation of OAG policy. Easton Area School District.11
One final comment that is necessary given all of the statements that the Attorney
Accordingly, the Appeals Officer‘s determination requiring OAG to provide copies of all email traffic involving pornographic material to and from OAG email addresses of former and current office staffers and state officials from 2005 to the present, including all participants in the email chains that shared in the emails, including the actual emails from their point of origin on, is reversed.
ORDER
AND NOW, this 19th day of November, 2015, that portion of the Final Determination of the Office of Attorney General Appeals Officer dated October 23, 2014, at SR-59467-MF2T, denying the disclosure of the requested emails of the Pennsylvania Office of Attorney General (OAG) is affirmed; that portion of the Final Determination requiring the disclosure of the requested OAG emails is reversed.
DISSENTING OPINION BY Judge LEADBETTER.
I agree in large part with the well-considered majority opinion, and believe it accurately states the general rule which will control the vast majority of cases. I do believe, however, that content is not the only factor to be considered. Rather, I would say that if communications regarding a particular subject matter are shown to be pervasive and widespread within an agency, they may reach the level of being an activity of that agency. Showing that such communications have reached that level will, no doubt, be a difficult burden to meet and, where the content is purely personal in nature, an exceedingly rare circumstance.
Nonetheless, where a requester can meet that burden, I believe the information should be subject to disclosure. Accordingly, I would remand to the Appeals Officer to allow the Inquirer to attempt to meet this burden.
Judge COHN JUBELIRER joins in this dissenting opinion.
DAN PELLEGRINI
President Judge
Notes
In Denver Publishing Co. v. Board of County Commissioners of Arapahoe, 121 P.3d 190 (Colo.2005), the Colorado Supreme Court analyzed a trial court order that required disclosure of all email communications between a county recorder and assistant chief deputy. The Court explained that “[t]he simple possession, creation, or receipt of an e-mail record by a public official or employee is not dispositive as to whether the record is a ‘public record.’ The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer equipment is insufficient to make the message a ‘public record.‘” Id. at 199. It held that to be public record, the requested emails had to have “a demonstrable connection to the performance of public functions.” Id. at 203.
In Florida v. City of Clearwater, 863 So.2d 149 (Fla.2003), the Florida Supreme Court held that “private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer. The determining factor is the nature of the record, not its physical location.” Id. at 154. In that case, the city had a “Computer Resources Use Policy” similar to the School District‘s “Acceptable Use Policy.” The Court held that such a policy “cannot be construed as expanding the constitutional or statutory definition of public records to include ‘personal’ documents.” Id.
The Court of Appeals of Michigan similarly held in Howell Education Association, MEA/NEA v. Howell Board of Education, 287 Mich.App. 228, 789 N.W.2d 495, appeal denied, 488 Mich. 1010, 791 N.W.2d 719 (2010), that a public school‘s possession and retention of electronic data in its email system did not render teachers’ private emails public records subject to disclosure. The court emphasized that this principle applies even where a teacher agrees to and subsequently violates a school district‘s acceptable use policy for its email system. Id. at 503.
Moreover, a non-governmental activity is not transformed into a governmental activity just because it is “pervasive and widespread.” A governmental activity is what an agency and its employees do to carry out statutory duties and advance the agency‘s mission. If governmental employees gamble at work, tell off-color jokes around the water cooler, or email each other concerning fantasy football or the NCAA tournament at work in a “pervasive and widespread” manner, that does not transform these activities into a governmental activity. (Under the dissent‘s view, if an employee sustained carpel tunnel syndrome from typing all of the “pornographic” emails, the employee could seek workers’ compensation benefits because he or she was engaged in a governmental activity.) To the contrary, each of those employees is subject to discipline because they are not using their worktime to engage in governmental activities, but are spending time carrying out their personal business. Simply put, just because “fool‘s gold” is “pervasive and widespread” does not transform it into gold.
In any event, if the dissent‘s view is adopted and the private emails at issue are transformed into public records, Section 708(b)(17)(6) of the RTKL,