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James Mollick v. Township of Worcester

December 7, 2011

JAMES MOLLICK, APPELLANT
v.
TOWNSHIP OF WORCESTER



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: June 17, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE COHN JUBELIRER

In these consolidated appeals,*fn1 James Mollick (Requestor) appeals from three separate Orders of the Court of Common Pleas of Montgomery County (trial court) dated September 22, 2010, September 30, 2010, and October 1, 2010, which held that the Township of Worcester (Township) properly denied Requestor‟s four requests, pursuant to the Right to Know Law (RTKL),*fn2 for emails transmitted by and between the Township Supervisors on their personal computers and/or via their personal email accounts.*fn3 Requestor argues that the trial court made several unsupported factual findings and committed several clear errors of law by holding that the deliberation of Township business by and among a quorum of the Township Supervisors via the Supervisors‟ personal computers/email accounts is not an activity "of" the agency which subjects the emails to public access pursuant to the RTKL.

I.INTRODUCTION

These matters began with four separate RTKL requests by Requestor for certain emails transmitted by and between the Supervisors on their personal computers and/or via their personal email accounts. Details of each request, the responses by the Township and the disposition of the parties‟ appeals by the Office of Open Records (OOR) and the trial court are as follows.*fn4

A.REQUESTOR'S FIRST REQUEST

On January 1, 2009, Requestor requested, via email, that the Township provide:

1. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding the Moran property for the past 1 year or 365 days regardless of whether they were transmitted on their personal computers and/or email accounts.

2. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding the Cindy Haines property for the past 1 year or 365 days regardless of whether they were transmitted on their personal computers and/or email accounts.

3. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding any Township business for the past 1 year or 365 days regardless of whether they were transmitted on their personal computers and/or email accounts.

4. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding any Township business for the past 5 years regardless of whether they were transmitted on their personal computers and/or email accounts.

5. [A]ny and/or all e-mails between any and/or all of the Supervisors and any and/or all Township employees regarding any Township business for the past 1 year or 365 days regardless of whether they were transmitted on their personal computers and/or email accounts.

6. [A]ny and/or all e-mails between any and/or all of the Supervisors and any and/or all Township employees regarding any Township business for the past 5 years regardless of whether they were transmitted on their personal computers and/or email accounts.

7. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding the Cindy Haines property for the past 5 years regardless of whether they were transmitted on their personal computers and/or email accounts.

(Right to Know Request, January 1, 2009 (First Request), Reproduced Record (R.R.) at 4a.) On January 16, 2009, after receiving the First Request on January 8, 2009, the Township‟s Open Records Officer denied Requestor‟s request for the emails requested in paragraphs 1, 2, and 7 based on the determination that: (1) any email or letter transmitted between the Supervisors and the Township Solicitor are protected by attorney-client privilege; (2) the requested emails are not in the possession of the Township so as to be presumed a public record pursuant to Section 305(a) of the RTKL;*fn5 (3) if the Township Supervisors emailed each other without copying the Township regarding the "Moran Property" or the "Cindy Haines Property," any such email is not in the possession of the Township and does not constitute a public record; and (4) with regard to emails sent or copied to the Township concerning the "Moran Property" or the "Cindy Haines Property", the Township is not in possession of any such public records which are not privileged communications involving the Township Solicitor. (Right-to-Know Response, January 16, 2009 (First Response) at 1-4, R.R. at 5a-8a.) The Township‟s Open Records Officer denied Requestor‟s request for the emails requested in paragraphs 3, 4, 5, and 6 because the request was vague, overly broad, and did not identify any document with sufficient detail, as required by Section 703 of the RTKL,*fn6 in order for the Township to ascertain which records were being requested. (First Response at 1-4, R.R. at 5a-8a.) The Township did not set forth any of the exceptions/exemptions from public access set forth in Section 708 of the RTKL*fn7 as a reason for its denial of the First Request. (First Response at 1-4, R.R. at 5a-8a.)

On February 1, 2009, Requestor appealed the Township‟s First Response to the OOR, arguing that the requested emails were public records because communications relating to Township business among a quorum of the three Supervisors are required to take place in public, per the Sunshine Act.*fn8

(Requestor‟s Right to Know Law Appeal, February 1, 2009 (First OOR Appeal) at 1-7, R.R. at 9a-30a.) Requestor argued further that, pursuant to Section 708(b)(10)(ii) of the RTKL, 65 P.S. § 67.708(b)(10)(ii), the RTKL applies to agencies subject to the Sunshine Act and a record that is not otherwise exempt and which is presented to a quorum for deliberation in accordance with the Sunshine Act is a public record. (First OOR Appeal at 1-7, R.R. at 14a.) Therefore, Requestor requested an in camera inspection of all the emails outlined in paragraphs 1-7 of the First Request to determine whether a quorum of the Supervisors was communicating with each other and/or the Township Solicitor.

(First OOR Appeal at 1-7, R.R. at 14a.) Finally, with respect to paragraphs 3, 4, 5, and 6 of the First Request, Requestor argued that, because he does not know what emails the Township possesses or how they are catalogued, his request had to be broad enough to be all-inclusive. (First OOR Appeal at 1-7, R.R. at 15a-16a.)

By correspondence dated February 24, 2009, the Township filed a response with the OOR to Requestor‟s First OOR Appeal. (Township‟s Response to First OOR Appeal at 1-8, R.R. at 23a-30a.) Therein, the Township presented the following arguments in opposition to Requestor‟s appeal: (1) the requested emails do not qualify as public records because they are not in the Township‟s possession and therefore not "of an agency"; (2) alternatively, if the requested emails were in the Township‟s possession, they would be protected by attorney-client privilege; and (3) paragraphs 3, 4, 5, and 6 of the First Request do not comply with Section 703 of the RTKL because they are not sufficiently specific. (Township‟s Response to First OOR Appeal at 1-8, R.R. at 23a-30a.)

By Final Determination issued March 5, 2009, the OOR granted, in part, and denied, in part, Requestor‟s First OOR Appeal without conducting an evidentiary hearing.*fn9 (Final Determination, March 5, 2009 (First Final Determination) at 8, R.R. at 38a.) The OOR concluded that the emails requested in paragraphs 1, 2, and 7 of the First Request were "of the Township." (First Final Determination at 5, R.R. at 35a.) The OOR held that: (1) "[e]mails of a Supervisor that pertain to Township business do not need to be copied to the Township to qualify as a record "of‟ the Township;" (2) "[e]lectronic correspondence among Township Supervisors relating to Township business are Township records because they document communication among members of the Township‟s governing body;" and (3) "[u]nder the Sunshine Law, a quorum cannot deliberate Township business behind closed doors, 65 Pa.C.S. §704, so if the emails deliberate Township business, they are public."*fn10 (First Final Determination at 6, R.R. at 36a.) The OOR opined that the RTKL could not be "construed to permit Township business to be conducted via personal emails on personal computers by the Supervisors." (First Final Determination at 5, R.R. at 35a.) The OOR determined further that the requested emails were not protected by attorney-client privilege because "[e]mails between two Supervisors are not for the purpose of obtaining legal advice, which is the only proper subject for the assertion of the attorney-client privilege." (First Final Determination at 5, R.R. at 35a.) The OOR pointed out that the Township did not disclose a single email in response to paragraphs 1, 2, and 7 of the First Request, Requestor was not seeking emails to or from the Township Solicitor, and that emails that merely copy or inform the Township Solicitor are not protected by attorney-client privilege. (First Final Determination at 5-6, R.R. at 35a-36a.)

The OOR found that, from the record, it did not appear as though the Township conducted a good faith review of its records to ascertain whether it could provide any of the requested emails.*fn11 (First Final Determination at 7, R.R. at 37a.) The OOR observed that, instead, the Township denied Requestor‟s request in its entirety without furnishing a single email and without stating that such emails do not exist. (First Final Determination at 7, R.R. at 37a.) Accordingly, the OOR concluded that, presuming that such emails exist, all of the requested emails in paragraphs 1, 2, and 7 were public records, and further found that the emails of the Supervisors that related to Township business and the properties named in paragraphs 1, 2, and 7 were public records that the Township was required to disclose. (First Final Determination at 7, R.R. at 37a.)

The OOR determined further that the request was sufficiently specific to inform the Township as to what documents Requestor was seeking in paragraphs 3, 4, 5, and 6 of the First Request. (First Final Determination at 7, R.R. at 37a.) The OOR reasoned that Section 703 of the RTKL neither "require[s] a request to identify specific documents or subject[s] . . . [n]or does Section 703 require that the subject be specified so an agency can discern from the face of the request whether an exception may apply." (First Final Determination at 7, R.R. at 37a.) However, in order to effectuate the purpose of the RTKL, the OOR directed the Township to conduct a good faith review of the requested emails and provide a sampling to Requestor so that he could "craft a more specific request, which shall be more limited in type, subject-matter, time-frame and scope." (First Final Determination at 7-8, R.R. at 37a-38a.) The OOR concluded that Requestor‟s revised request "shall not constitute a disruptive request under Section 506(a)" of the RTKL.*fn12

(First Final Determination at 8, R.R. at 38a.) The Township appealed the OOR‟s First Final Determination to the trial court.

By Decision and Order dated September 22, 2010, the trial court reversed the First Final Determination. (Trial Ct. Op. at 13, September 22, 2010, R.R. at 285a.) The threshold issue decided by the trial court was whether the requested emails were public records. (Trial Ct. Op. at 5, R.R. at 277a.) The trial court held that Requestor had the burden of establishing that the requested emails bore the characteristics of a public record. (Trial Ct. Op. at 6, R.R. at 278a.) The trial court noted that Section 302(a) of the RTKL*fn13 only requires the Township to disclose "public records" and that a "public record" is defined in Section 102 of the RTKL as "[a] record, including a financial record, of a Commonwealth or local agency" that is not otherwise exempt or privileged. (Trial Ct. Op. at 6, R.R. at 278a.) The trial court determined that, although the Township qualified as a local agency under the RTKL, "the computers and email accounts identified in this case are not owned, possessed, or under the control of the Township." (Trial Ct. Op. at 7, R.R. at 279a.) As such, the trial court concluded that the emails requested by the First Request that are contained on the Supervisors‟ personal computers and personal email accounts are neither of the Township nor are they to be construed to be in possession of the Township. (Trial Ct. Op. at 7, R.R. at 279a.)

The trial court concluded further that the OOR erred by ignoring the Township‟s Open Records Officer‟s good faith determination that the requested records were not in the Township‟s "possession, custody or control." (Trial Ct. Op. at 7, R.R. at 279a.) The trial court also determined that: (1) the emails between the Supervisors requested in paragraphs 1, 2, and 7 of the First Request did not constitute a "meeting" under the Sunshine Act;*fn14 and (2) the Township established that the emails that were either directly sent or copied to the Township Solicitor were protected by attorney-client privilege. (Trial Ct. Op. at 8-10, R.R. at 280-82a.)

Finally, the trial court determined that the Township properly denied Requestor‟s request for the emails set forth in paragraphs 3, 4, 5, and 6 of Requestor‟s First Request "given the breadth and vagueness of [Requestor‟s] requests." (Trial Ct. Op. at 11, R.R. at 283a.) The trial court found that the OOR improperly refashioned Requestor‟s First Request by directing the Township to provide a sampling of the emails requested in paragraphs 3, 4, 5, and 6 so that Requestor could "ʻcraft a more specific request, which shall be more limited in type, subject-matter, time-frame and scope.‟" (Trial Ct. Op. at 11, R.R. at 283a (emphasis in original) (citing Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 516 (Pa. Cmwlth. 2010) ("[T]he OOR does not have the authority to unilaterally narrow the scope of a request."))

B.REQUESTOR'S SECOND REQUEST

On January 9, 2009, Requestor submitted a second RTKL request, via email, to the Township. Therein, Requestor asked the Township to provide:

1. [A]ny and/or all e-mails between any and/or all of the Supervisors regarding the Moran property for the past 5 years regardless of whether they were transmitted on their ...


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