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Indiana University of Pennsylvania v. David Loomis

June 24, 2011

INDIANA UNIVERSITY OF PENNSYLVANIA, PETITIONER
v.
DAVID LOOMIS, : RESPONDENT :



The opinion of the court was delivered by: Dan Pellegrini, Judge

Argued: May 9, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE PELLEGRINI

Indiana University of Pennsylvania (University) appeals from the final determination of the Office of Open Records (OOR) granting in part and denying in part David Loomis' (Requester) appeal concerning the University's redaction of certain information from public records he requested. For the reasons that follow, we reverse.

Requester is a journalism professor at the University. He submitted a Right-to-Know Law*fn1 (Law) request seeking to have the University obtain the following records in the possession of the Foundation for Indiana University of Pennsylvania (Foundation):

a. Amounts of pledges, including payment and dates, outstanding balances, record of transactions, fund transfers and correspondence related to donations, for the Kovalchick Convention and Athletic Complex for the period July 1, 2003, through June 30, 2010.

b. The same information as it relates to the Residential Revival construction project at Indiana University of Pennsylvania.

c. The [Foundation]'s Internal Revenue Service Form 990 filings for the same period (July 1, 2003, through June 30, 2010).

d. Minutes of meetings of the [Foundation] Board of Directors as they relate to raising and disbursing money during the same period (July 1, 2003, through June 30, 2010).

(Reproduced Record (R.R.) at 1.) The University obtained the requested records from the Foundation but certain information was specifically redacted: signatures under the personal security exception, Section 708(b)(1)(ii) of the Law, 65 P.S. §67.708(b)(1)(ii), to prevent photo-shopping signatures; material not directly related to the function the Foundation was performing under contract; discussions that constituted predecisional deliberations under Section 708(b)(10)(i)(A) of the Law, 65 P.S. § 67.708(b)(10)(i)(A), and were related to proceeding with a Residential Revival housing project under Section 708(b)(22) of the Law, 65 P.S. § 67.708 (b)(22), and donor identities from minutes under Section 708(b)(13) of the Law, 65 P.S. §67.708(b)(13). (R.R. at 3-4.) Most pertinent to this appeal, the University also requested a check for $118 for copy fees due and payable upon receipt of the documents.*fn2

Requester neither paid the fee nor picked up the documents but instead filed an appeal with the OOR arguing that the information the University redacted is public under East Stroudsburg University v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010), petition for allowance of appeal denied, ___ Pa. ___, ___ A.3d ___ (No. 439 MAL March 16, 2011), and that the University's response did not specify redactions sufficiently. He also claimed that the "university's refusal to allow me to inspect records approved for release without having to pay in advance for photocopying services is unreasonable." (R.R. at 6.) The OOR then sent a letter to the University asking for additional information concerning the redacted records and why it redacted what it did. The letter also stated, "You may also respond to the grounds for appeal." (R.R. at 8.) The University did not respond. The OOR allowed the University to redact donor identities but required it to provide all other information. The University then appealed to this Court.*fn3

On appeal, the University contends that because payment of the required fees is a precondition to receipt of the documents, the OOR erred in not denying Requester's appeal giving it access to any information in those documents. It goes on to argue that the payment of the copying costs is necessary because until the fees are paid and the documents accessed, requesters, the OOR or the reviewing courts are unable to assess whether the withheld information had been properly redacted. Because Requester had no right to access the documents, he argues that the OOR erred by not denying the appeal and addressing redactions to the document.

Requester responds that the University waived the issue of whether it was required to pay for the copying fees before the OOR could consider its claim that the redactions were improper by failing to respond to the OOR's letter for additional information. However, what that argument ignores is that Requester, not the University, was the appellant before the OOR, so the University had no duty to raise anything. Heim v. Medical Care Availability and Reduction of Error Fund, __ Pa. __, __ A.3d. __ (5 MAP 2010 filed April 28, 2011). Whether all access could be denied was before the OOR because it was one of Requester's grounds that he should not have to pay for the redacted copies to gain access to the records and, even though the OOR failed to address it, that issue remains and is properly before us.

Generally, an agency may require that a requester pay applicable fees before receiving access to records. Section 901 of the Law, 65 P.S. ยง67.901. "A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency. Upon a determination that the record is subject to access under this act, the open records officer shall assess the duplication fee . . . . and upon collection shall remit the fee to the party in possession of the record if the party duplicated ...


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