The opinion of the court was delivered by: P. Kevin Brobson, Judge
Argued: November 15, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Barkeyville Borough (Borough) appeals from an order of the Court of Common Pleas of Venango County (trial court), dated January 7, 2011, which affirmed a determination of the Office of Open Records (OOR) that Wallace and Leanne Stearns (Requesters) were entitled, pursuant to the Right to Know Law (RTKL),*fn2 to records they requested from the Borough. OOR also granted Requesters attorney fees in the amount of $3,432.71. For the reasons that follow, we affirm in part and reverse in part.
On April 26, 2010, Requesters filed a request with the Borough, seeking "[a]ll e-mails, faxes, hand written notes from-to Bill Coursen, Randy Martin, Guy Surrera, William Valdeselse and council minutes from March through December 2010." (Reproduced Record (R.R.) at 223a.) On April 27, 2010, the Borough granted access to the requested minutes, but denied the request for correspondence stating that Requesters had previously been advised that "there were no e-mails, faxes or handwritten notes." (Id. at 160a.) Subsequently, Requesters appealed to OOR on May 5, 2010, contending that they had been told that emails do exist and may be on personal computers. (Id.) Raymond Bogaty, Borough‟s Counsel, responded on May 17, 2010, asserting that the Borough‟s computer "is not often used for correspondence and at least up to this point has not been the best functioning piece of equipment." (Id.) Mr. Bogaty also provided OOR with an affidavit from Borough Council (Council) President, William Coursen, which stated that the email records requested did not exist in the possession, custody, or control of the Borough. (Id.) In addition, the affidavit stated that Coursen, in his capacity as the Borough‟s Open Records Officer, requested copies of the emails Requesters requested, but received no response from other Council members. (Id.)
By final determination dated June 2, 2010, OOR granted Requesters‟ appeal and required the Borough to provide to Requesters existing e-mails in the possession, custody, or control of individual Council members. (Id. at 173a.) In making its determination, OOR concluded that the "physical possession" of a record is not the litmus test of any agency performing its duties of disclosure, rather the test is one of control. (Id.) OOR concluded that the emails reflecting Council business that are in the possession of individual Council members and located on their personal computers are within the Borough‟s control. (Id.) Moreover, OOR determined that a lack of response from individual Council members was insufficient evidence to deduce that emails did not exist and ordered the Borough to turn over any remaining emails relating to Borough business. (Id.) The Borough then appealed to the trial court.
A hearing was held on November 30, 2010. Mr. Stearns testified to having personally collected emails from Council members discussing Borough business via personal computers. (Id. at 40a-41a.) During his testimony, Mr. Stearns also read emails into the record that were between Council members and which discussed Borough business. (Id. at 47a-56a.) In addition, individual Council members testified at the hearing before the trial court, admitting to, at some point, receiving emails on personal computers. (R.R. at 70a, 77a, 97a, 99a, 107a.) However, those Council members testified that any emails containing Borough business have been deleted or could not be found upon a search. (Id. at 70a, 105a, 108a, 117a-18a.) Additionally, none of the computers used by Council members were purchased, endorsed, managed, or condoned by the Borough.
The trial court affirmed OOR‟s Final Determination by opinion and order dated January 7, 2011, and awarded Requesters attorney fees in the amount of $3,432.71. (Trial court opinion and order, attached to Appellant‟s Brief.) The trial court determined that the emails requested were records under the RTKL because those emails pertained to two certain development plans and were created and received in connection with Borough business. (Id.) The trial court, in reaching its conclusion, distinguished the current case from In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011), a case in which this Court determined that emails between a township commissioner and citizens of a municipality on a personal computer were not public records under the RTKL. In re Silberstein, 11 A.3d at 633. Furthermore, the trial court concluded that the emails on the Council members‟ personal accounts were public records under the RTKL and were not subject to an exemption or privilege. (Trial court opinion and order at 5-6, attached to Appellant‟s Brief.) The trial court went on to note that even deleted emails continue to exist from the moment of transmission and may be accessed from any computer with internet connection. (Id.) The Borough then filed a notice of appeal with the trial court.*fn3
On appeal,*fn4 the Borough argues that emails on privately owned computers are not public records subject to the RTKL. Second, the Borough argues that the trial court erred in awarding attorney fees to Requesters because the issue has been litigated in good faith and is not frivolous.
Whether sought after information constitutes a "public record" is a preliminary, threshold issue that must be decided before reaching the question of whether any exceptions under Section 708 of the RTKL, 65 P.S. §67.708, apply. The burden of proving that a requested piece of information is a "public record" lies with the requester. There are three sections of the RTKL relevant to determining whether requested information constitutes a "public record." Section 102 of the RTKL, 65 P.S. § 67.102, defines "public record," in pertinent part, as "[a] record . . . of a Commonwealth or local agency." (Emphasis added.) Section 305 of the RTKL, 65 P.S. § 67.305, provides, in pertinent part, that "[a] record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record." (Emphasis added.) Finally, Section 506(d)(1) of the RTKL, 65 P.S. § 67.506(d)(1), provides:
A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act. (Emphasis added.)*fn5 The necessary implication under each of these sections is that a requested piece of information must constitute a "record" under the RTKL in order to constitute a "public record" under the RTKL. Bari, 20 A.3d at 640. This Court, therefore, must first determine whether the correspondence sought constitutes a "record" under the RTKL. "Record" is expressly defined in the RTKL, as follows: Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a date-processed or image-processed document.
Section 102 of the RTKL, 65 P.S. § 67.102. (Emphasis added.) This definition contains two parts. First, the information must "document a transaction or activity of the agency." Recently, this Court, in Second Chance, interpreted "documents" to mean "proves, supports [or] evidences." Second Chance, 13 A.3d 1034-35; Bari, 20 A.3d at 641. Second, the information must be "created, received, or retained" in connection with the activity of the agency. Here, the emails contained in the record are between Council members, discussing Borough business, and those discussions "document a transaction or activity" of the Borough, namely the Borough‟s consideration of land development plans. (R.R. at 202a-16a.) The land development plans are evidenced through the email content. The emails meet the second part of Section 102 because the emails were "created" by Council members, in connection with their positions as public officials. As a result, the emails requested meet the definition of "record" found in Section 102 of the RTKL.
A determination that the emails in question are "records" under the RTKL comports with this Court‟s recent decision in Mollick v. Township of Worcester, ___ A.3d ___ (Pa. Cmwlth., Nos. 2265-2267 C.D. 2010, filed December 7, 2011). In Mollick, this Court established that emails between township supervisors on personal ...