PENNSYLVANIA OFFICE OF INSPECTOR GENERAL, Pеtitioner v. Alton D. BROWN, Respondent
No. 1400 C.D. 2015
Commonwealth Court of Pennsylvania.
FILED: December 21, 2016
369-374
Submitted on Briefs: July 15, 2016
the taxpayers, Strongstown contends that it does not make sense to impose a tax that would increase the cost of contracts between the Commonwealth and construction companies that do the work on the Commonwealth‘s highwаys. As with its argument regarding BME, Strongstown reiterates the arguments it made in its earlier brief. In response to those arguments, we held that we are bound by the plain language of the Code and by our previous decisions interpreting the Code, and that Strongstown‘s policy argument thus should be directed tо the General Assembly. Strongstown I, 2016 WL 2945158, at *4. Strongstown offers us no reason to reconsider that conclusion, and we will deny this Exception.
III. Conclusion
As we conclude that Strongstown‘s assignments of error through the Exceptions are not supported by the Code, our decisions or the stipulated record, we deny thе Exceptions.
ORDER
AND NOW, this 21st day of December, 2016, the Exceptions filed by Strongstown B&K Enterprises, Inc. (Strongstown) are DENIED. This matter is remanded to the Board of Finance and Revenue to reassess Strongstown‘s use tax in accordance with the parties’ Stipulation filed with this Court.
Jurisdiction relinquished.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE DAN PELLEGRINI, Seniоr Judge
The Pennsylvania Office of Inspector General (OIG) petitions for review of the July 6, 2015 final determination of the Office of Open Records (OOR) granting, in part, and dismissing, in part, the appeal of Alton Brown (Requestor).
Facts and Procedural History
On May 7, 2015, Requestor, an inmate currently incarcerated at the State Correctional Institution (SCI) at Huntingdon, submitted a request (Request) to OIG pursuant to the Right-to-Know Law (RTKL),1 seeking:
1. [OIG‘s] rules, regulations, policies or related authority that governs its duties and functions, that were specifically designed by the [OIG];
2. A diagram reflecting the [OIG‘s] various Offices and Bureaus; [and]
3. All criminal and misconduct reports pertaining to the detection and eradication of fraud, abuse, waste, and misconduct involving SCI-Graterford and SCI-Smithfield staff that resulted in sanctions, demotions, dismissals or discipline, which were compiled by the [OIG] during the past ten (10) years.
(Reproduced Record (R.R.) at 36a.)
On May 14, 2015, OIG sent Requestor a letter granting thе Request, in part, and denying, in part. Regarding Paragraph 1, OIG provided Requestor with an executive order governing its authority, but determined
Similarly, OIG determined that records responsive to Paragraph 2 were not subject to disclosure pursuant to the personal safety, public safety, and personal identification information exemptions of the RTKL.2 However, notwithstanding its determination, OIG exеrcised its discretion to provide Requestor with a redacted chart of its organizational structure. OIG further determined that any responsive records to Paragraph 3, to the extent they exist, were exempt from disclosure pursuant to, inter alia, the criminal and noncriminal invеstigative exemptions of the RTKL.3 In support of its denial, OIG attached an affidavit of Deputy Inspector General Anthony Fiore, indicating that any responsive records that may exist are exempt from disclosure because they would reveal information regarding the institution, рrogress, or result of an agency investigation or other-wise consist of official OIG investigative materials.
Requestor appealed OIG‘s determination to OOR, arguing that Paragraph 1 was sufficiently specific because he “merely seeks the duties/functions of OIG staff and not methods employed to carry out [the] samе.” (R.R. at 1a) (emphasis in original). Additionally, Requestor asserted that redaction of OIG‘s organizational chart was improper because it “is part of the State Government, and Requestor seeks only the names of those who hold Offices/Bureaus, not undercover agents, etc.”4 (R.R. at 2a.) Regarding Paragraph 3, Requestor asserted that he is “only seeking the identities and reasons for government staff, who were sanctioned, demoted, dismissed or disciplined as a result of an OIG investigation, not investigation reports (etc).” Id.
By final determination dated July 6, 2015, OOR granted, in part, and dismissed, in part, Requestor‘s appeal. OOR concluded that Paragraph 1 was sufficiently specific because it related to a specific type of agency business, i.e., OIG‘s duties and functions. Additionally, OOR reasoned that, by asserting various exemptions to Paragraph 1, OIG acknowledged that it could ascertain what records were being requested and, therefore, Paragraph 1 was sufficiently specific.5
Regarding OIG‘s asserted exceptions to disclosure of records responsive to Paragraph 1, OOR reasoned that OIG failed to meet its burden to establish that any responsive records were exempt from disclosure because: any evidence regarding loss
Regarding Paragraph 3, OOR determined that Requestor failed to address OIG‘s grounds for denying Paragraph 3; rather, according to OOR, Requestor modified the Request on appeal, which is prohibited. Thus, OOR determined that its review was confined to the Request as written and dismissed Requestor‘s appeal regarding Paragraph 3 of the same.
OIG appealed OOR‘s final determination to this Court.
On appeal,6 OIG argues that Paragraph 1 lacks sufficient specificity necessary to enable it to ascertain which records were requested. OIG also argues that OOR erred in permitting Requestor to revise the Request on appeal. Finally, OIG asserts that, after concluding that the Request was sufficiently specific, OOR should have remanded the matter to OIG to provide it an opportunity to review potentially responsive records and more thoroughly develop whether an exception to disclоsure exists.
Discussion
The objective of the RTKL is to “empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029, 1042 (2012). A record in possession of a Commonwealth agency shall be presumed to be a public record.
When considering a challenge to the specificity of a request under Section 703 of the RTKL, this Court employs a three-part balancing test, examining the extent to which the request sets fоrth (1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought.
Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121, 1124 (Pa. Cmwlth. 2015).
Regarding the application of the three prongs, we stated that the subject matter of the request “must identify the ‘transaction or activity’ of the agenсy for
OIG аrgues that a straightforward application of the three prongs demonstrates that the Request is not sufficiently specific. First, OIG maintains that the Request identifies no specific subject matter; instead, according to OIG, the Request seeks all rules, regulations, policies or related authorities that govern all of OIG‘s duties and functions. Next, OIG argues that the only limitation in the request for rules, regulations, policies or related authority is that they be “specifically designed by the [OIG].” Finally, OIG posits that the timeframe of the Request is unclear but submits that it contemplates any еxisting authority governing every OIG transaction or activity, which it argues constitutes an unreasonable burden and amounts to a “fishing expedition.”
In Pittsburgh Post-Gazette, this Court considered whether a request for “[a]ll of the emails of Acting Secretary of Education Carolyn Dumaresq as they pertain to the performance of her duties as Acting Secretary since she was appointed on August 25, 2014 to date” was sufficiently specific under the RTKL. 119 A.3d at 1123. Applying the three-pronged test, we concluded that the request was not sufficiently specific because it failed to identify the requisite agеncy transaction or activity. More specifically, we stated that emails pertaining to the performance of Dumaresq‘s duties while Acting Secretary “does not provide a context by which the Request can be narrowed; it is, by virtue of the Secretary‘s position, a request for emails about all of the agency‘s activity overly nearly a one year period. In other words, it is a fishing expedition.” Id. at 1126. Cf. Easton Area School District v. Baxter, 35 A.3d 1259, 1260 (Pa. Cmwlth. 2012) (holding that “[a]ll emails sent and received between Oct. 1 and Oct. 31” for email addresses of nine school board members, the general school board address, and the school district superintendent was sufficiently specific); Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 516-17 (Pa. Cmwlth. 2010) (holding that portion of request seeking any and all records, files, or communications of any kind pertaining to seizures of property was insufficiently specific but portion seeking manuals relating to vehicle stops, searches, and seizures was specific enough to enable the agency to ascertain what records were sought).
Here, the apparent subject matter identified in Paragraph 1 of the Request is OIG‘s “duties and functions.” (R.R. at 36a.) However, the Request does not identify what duties and functions are at issue; rather, based on the face of the Request, it appears that all OIG duties and functions are contemplated because no specific “transaction or activity” is provided. Analogous to Pittsburgh Post-Gazette, the Request
Because Paragraph 1 of the Request is not sufficiently specific to advise OIG of what records are being requested and did not identify the OIG transaction or activity for which the record is sought, thereby failing to provide any context by which OIG could narrow the search, OOR‘s determination granting Requestor‘s appeal as to Paragraph 1 was erroneous.
Accordingly, to the extent OOR determined that Paragraph 1 was sufficiently specific to advise OIG of what records were being requested, OOR‘s determination is rеversed.7
ORDER
AND NOW, this 21st day of December, 2016, the July 6, 2015 final determination of the Office of Open Records (OOR) is hereby reversed to the extent OOR determined that Paragraph 1 of the Request was sufficiently specific to advise the Pennsylvania Office of Inspector General of what recоrds were being requested.
Lishani S. Sunday
Assistant Counsel, Harrisburg, for petitioner.