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Bowling v. Office of Open Records

February 5, 2010

BRIAN BOWLING, PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Argued: December 9, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

This appeal from a Commonwealth administrative agency concerns the recently re-enacted Right-to-Know Law (Law).*fn1 Brian Bowling (Requester), an employee of the Pittsburgh Tribune-Review, petitions for review from a final determination of the Office of Open Records (OOR)*fn2 granting in part his request for records of goods and services the Pennsylvania Emergency Management Agency (PEMA) purchased with Department of Homeland Security (Homeland Security) grant funds. PEMA granted the right-to-know request but redacted the identities of the recipients of the goods and services purchased. It also redacted records pertaining to the Buffer Zone Protection Program.*fn3 The OOR denied Requester's appeal concluding PEMA properly withheld the recipients' names under Section §708(b)(2) of the Law, 65 P.S. §67.708(b)(2) (exemption from disclosure of public records pertaining to military, homeland security, national defense, law enforcement, or public safety).

In this appeal, we address the manner of judicial review of an OOR determination as well as issues raised in Requester's petition for review. Requester questions: whether documents disclosing the identities of recipients of emergency response equipment purchased by PEMA are public records under the Law; whether those documents are exempt from access on the basis their release would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity; and, whether Requester is entitled to the information sought in a medium in which it exists. Concluding PEMA redacted the records requested in a manner inconsistent with the Law, we reverse and remand to the OOR with instructions for further remand to PEMA for refinement of the redactions.

I. The Right-to-Know Law

In 2008, the General Assembly passed the new Right-to-Know Law, which made sweeping changes to access of government records. In addition to the issues raised on appeal, we are particularly concerned with the Law's procedures for review of right-to-know determinations. The following is a brief overview of the new procedures set forth in the Law.

Pursuant to Section 502 of the Law, each agency must designate an official or employee to act as an open-records officer. 65 P.S. §67.502. Among other duties, the designated individual issues the agency's final response to a request for public records. Id.*fn4 In denying a request in whole or in part, the open-records officer must provide a written description of the record requested with specific reasons for the denial. Section 903 of the Law, 65 P.S. §67.903.

If the agency denies the request, or it is deemed denied, a requester may file an appeal with the OOR. OOR assigns an appeals officer to review the decision of the agency's open-record's officer, and to issue an order and opinion disposing of the appeal. Section 1310 of the Law, 65 P.S. §67.1310. Notably, the appeals officer may, in his or her discretion, conduct a hearing prior to issuing a final decision. Section 1101(b)(3) of the Law, 65 P.S. §67.1101(b)(3). The appeals officer must provide a written explanation for the decision. Id.*fn5

Chapter 13 of the Law governs judicial review. If the appeals officer's final determination relates to a decision of a Commonwealth, legislative or judicial agency, the requester or the agency may file a petition for review with the Commonwealth Court. Section 1301(a) of the Law, 65 P.S. §67.1301(a). If the appeals officer's final determination relates to a decision of a local agency, the requester or the local agency may file a petition for review with the court of common pleas for the county in which the agency is located. Section 1302(a) of the Law, 65 P.S. §67.1302(a). The court's decision on appeal "shall contain findings of fact and conclusions of law based upon the evidence as a whole" and "clearly and concisely explain the rationale for the decision." 65 P.S. §§67.1301(a) and 1302(a). The record on appeal consists of the request, the agency's response, the appeal filed with the OOR, the hearing transcript, if any, and the final written determination of the appeals officer. Section 1303(b) of the Law, 65 P.S. §67.1303(b).

The current right-to-know request proceeded through the newly enacted procedure.

II. Facts

On January 2, 2009, Requester filed a written request with PEMA seeking all invoices and contracts for first responder equipment and services which PEMA purchased with Homeland Security funds for fiscal years 2005-08. Reproduced Record (R.R.) at 6a-7a. Over the next several days, Requester and PEMA's Open-Records Officer clarified the request to mean "electronic spreadsheets maintained by PEMA containing information regarding equipment procured for the nine (9) regional counterterrorism task forces with 2005-08 Homeland Security grant funds." Id. at 8a.

PEMA granted the request and created a ".pdf" document of the invoices.*fn6 However, PEMA redacted some information purportedly exempt from disclosure pursuant to Sections 708(b)(2) (relating to military, homeland security, national defense, law enforcement, or public safety) and 708(b)(3)(ii) of the Law (relating to safety or security of buildings, public utilities, resources, infrastructure, facilities, or information storage systems). 65 P.S. §§67.708(b)(2), (b)(3)(ii).

PEMA first redacted the names of all recipients of the equipment procured as critical information that reveals gaps, vulnerabilities and emergency response capabilities in the Commonwealth. R.R. at 8a. PEMA explained disclosure of the recipients' names would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activities. Id. PEMA also redacted information pertaining to the Buffer Zone Protection Program on the ground that the information discloses sites in the Commonwealth designated as critical infrastructure. Id. PEMA explained that disclosure would be reasonably likely to endanger the safety and/or physical security of a Program building, public utility, resource, infrastructure, facility or information storage system. R.R. at 8a-9a.*fn7 As such, the redactions constituted a partial denial of Requester's request.

Requester appealed to the OOR. First, Requester disputed PEMA's conclusion that disclosure of the names of the recipients of goods purchased would show gaps, vulnerabilities and emergency response capabilities in the Commonwealth. According to Requester, such documentation would show fortification of the Commonwealth's emergency response capabilities. Second, although not disputing non-disclosure of Buffer Zone Protection Program records, Requester asserted the redactions relating to the Program must be more clearly identified to enable meaningful review of PEMA's redaction of the names of the recipients of the goods and services purchased. Finally, Requester challenged the format by which PEMA satisfied his request. PEMA provided Requester with a ".pdf" version of the records even though it maintains the records in a Microsoft Excel spreadsheet.

The OOR Appeals Officer permitted PEMA and Requester to file memoranda in support of their respective positions; however, the OOR Appeals Officer did not conduct a hearing. The OOR Appeals Officer first determined PEMA did not violate the Law by providing Requester a ".pdf" file of the records. OOR Dec., 4/17/09, at 9. The OOR Appeals Officer concluded that the Law authorizes inspection and duplication of public records but does not require the records be provided in a manner subjecting them to alteration or manipulation. Id.; see Section 701(b) of the Law, 65 P.S. §67.701(b) ("[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.").

The OOR Appeals Officer further determined PEMA properly redacted information identifying the recipients of goods and services procured through Homeland Security grants. PEMA persuaded the OOR Appeals Officer there is a strong connection between knowing what entities receive emergency equipment and a threat to public safety. According to the OOR Appeals Officer, PEMA provided examples of how disclosure of the recipients' identities would expose vulnerabilities and gaps in emergency preparedness and could point terrorists in the direction of high profile or weak targets.*fn8 OOR Dec., 4/17/09, at 10.

Requester now appeals the OOR Appeals Officer's determination. PEMA appears as Intervenor.*fn9

III. Preliminary Considerations

Before we reach the merits of Requester's appeal, we first resolve questions regarding the standard and scope of judicial review of an OOR decision. Requester submits our standard of review is de novo where the Law directs this Court to issue findings and conclusions based on the evidence as a whole. 65 P.S. §67.1301(a). This is more in line with our original jurisdiction rather than with deferential appellate review. Conversely, PEMA urges application of the traditional, three-pronged appellate standard of review for administrative agency determinations: whether the record supports the findings of fact, whether errors of law were committed, or whether constitutional rights were violated.

In a detailed discussion, our Supreme Court clarified in Morrison v. Department of Public Welfare, Office of Mental Health (Woodville State Hosp.), 538 Pa. 122, 131, 646 A.2d 565, 570 (1994), that "scope of review" and "standard of review" refer to two distinct concepts and should not be confused. Considering a motion for new trial, the Court explained:

"Scope of review" refers to "the confines within which an appellate court must conduct its examination." Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 450, 625, A.2d 1181, 1186 (1993). In other words, it refers to the matters (or "what") the appellate court is permitted to examine. In contrast, "standard of review" refers to the manner in which (or "how") that examination is conducted. In Coker we also referred to the standard of review as the "degree of scrutiny" that is to be applied. Id., 625 A.2d at 1186.

A. Standard of Review

For the following reasons, we conclude that a reviewing court, in its appellate jurisdiction, independently reviews the OOR's orders and may substitute its ...


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