The opinion of the court was delivered by: Judge Pellegrini
Argued: December 13, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION BY JUDGE PELLEGRINI
Easton Area School District (School District) appeals an order of the Court of Common Pleas of Northampton County (trial court) affirming the determination of the Office of Open Records (OOR) to provide Christopher Baxter (Requestor) with copies of all emails sent and received between October 1, 2010, and October 31, 2010, for the email addresses of nine school board members, the district superintendent and the general school district.
Requestor, a reporter for the Allentown Morning Call, made to the School District under the Right-to-Know Law (RTKL)*fn2 a request for "[a]ll emails sent and received between Oct. 1 and Oct. 31" for email addresses of nine school board members, the school district superintendent and the general school board address. The School District would be compelled to provide that information under the RTKL, if it was a "record," which is defined by the RTKL as "[i]nformation, 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." Section 102 of the RTKL, 65 P.S. §67.102.*fn3 In order to be subject to disclosure, this record also must be a public record, which is defined as, "[a] record...of a Commonwealth or local agency that:
(1) is not exempt under section 708 [Exceptions for public records]; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." Id. Under Section 703 of the RTKL, 65 P.S. §67.703, the "written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested."
The School District denied the request on the following grounds: "(1) Insufficiently specific - Section 703 of the RTKL; (2) Records protected by Federal or State Law or Regulation - Section 506(c) and Section 708(b)(i)(A); (3) Internal pre-decisional deliberations exception - Section 708(b)(10)(i)(A); and (4) Records subject to redaction for personally identifiable information - Section 708(b)(6)(i)(A)."
Requestor appealed to the OOR claiming that his request was sufficiently specific, and while certain emails might be subject to redaction, this did not allow the School District to make a blanket denial of the request for all records under any of the reasons given. In support of denial of the requested records, the School District submitted an affidavit from its Director of Human Resources stating that the records reflected internal, pre-decisional deliberations. The School District also alleged that because the requested emails referred to a particular student, those records were protected under The Family Education Rights and Privacy Act (FERPA).*fn4
The OOR held that Requestor‟s request was sufficiently specific, noting that it facially identified the type of records sought, the parties involved and a timeframe, and was sufficiently specific to allow the School District to identify at least 3,500 responsive records. The OOR further found that the School District failed to meet its burden of establishing that the records reflected internal, pre-decisional deliberations because an affidavit alone, without supporting evidence, was not sufficient to demonstrate how the requested records were internal, pre-decisional and/or deliberative in character. Finally, the OOR determined that the School District failed to provide sufficient evidentiary detail as to whether any of the responsive records constituted "education records" that might be entirely exempt under FERPA, but held that any "personally identifiable information" could be redacted. As a result, it ordered the School District to provide Requestor with all responsive records subject to the appropriate redactions.
The School District appealed to the trial court and only contended that (1) under our decision in In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2010),*fn5 emails of individual school board members were not public records and (2) that Requestor‟s request was not sufficiently specific under Section 703 of the RTKL. As to the first issue, the trial court held that because the emails were sent and received from School District email addresses, were stored on the School District‟s server, and were the School District‟s property per its "Acceptable Use Policy," they were public records and Silberstein was inapplicable. As to the second issue, the trial court found that Requestor‟s request was sufficiently specific, noting that it sought only emails limited to a designated period of time and from a limited number of School District email users. The trial court affirmed the OOR‟s decision, and this appeal followed.*fn6
The School District again contends that under our holding in Silberstein, emails to or from individual school board members do not qualify as public records for purposes of the RTKL. Silberstein involved a RTKL request seeking, inter alia, all electronic or written correspondence between two township commissioners and township citizens regarding applications for development projects in the township. The township produced documents and emails on the computers under its control but refused to produce any documents or emails on computers maintained solely by the individual commissioners or their private businesses. On appeal, the OOR ruled that the documents on the commissioners‟ personal computers were public records in possession of the township and were subject to disclosure. The trial court then reversed, reasoning that individual township supervisors were not a governmental entity, had no authority to act alone on behalf of the township, and did not have any obligation to keep records of every email, note or conversation in which they discussed township matters in an email on their private computers. In affirming the trial court, this Court held that:
"[emails] and documents found on Commissioner Silberstein‟s personal computer would not fall within the definition of record as any record personally and individually created by Commissioner Silberstein would not be a documentation of a transaction or activity of York Township, as the local agency, nor would the record have been created, received or retained pursuant to law or in connection with a transaction, business or activity of York Township. In other words, unless the emails and other documents in Commissioner Silberstein‟s possession were produced with the authority of York Township, as a local agency, or were later ratified, adopted or confirmed by York Township, said requested records cannot be deemed public records‟ within the meaning of the RTKL as the same are not of the local agency‟".
Silberstein, 11 A.3d at 633.*fn7
While Silberstein involved emails from a private email account on a private computer, the School District contends that because individual school board members do not have the authority to act on behalf of the School District, any emails to or from those individuals absent ratification or adoption by the School District do not constitute activity of the agency and are not records. Moreover, it contends that its mere possession of an email does not transform that email into a "public record."
Requestor argues that applying the rationale of Silberstein to the present case and holding that an individual school board member can only create a "record" when he or she acts in tandem with the other school board members essentially defeats the purpose of the RTKL. Requestor contends that the School District‟s "Acceptable Use Policy,"*fn8 which mandates that the email system is for business use only, necessarily implies that any email sent to or from a School District email address concerns "a district transaction or activity" and, therefore, is a public record subject to disclosure under the RTKL.
We first address Requestor‟s contention that all emails on a public
computer are automatically public records. While we have not
addressed that issue,
other states have. For example, the Arizona Supreme Court held in
Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007), that emails sent
and received by a former county manager on a government-owned computer
during a specific time period were not public records subject to
disclosure under Arizona‟s RTKL equivalent. In holding that all
information on a computer was not automatically a public record, the
Arizona Supreme Court reasoned that "only those documents having a
substantial nexus‟ with a government agency‟s activities qualify as
public records" and ultimately held that "because the nature and
purpose of the document determines its status, mere possession of a
document by a public officer or agency does not by itself make that
document a public record, nor does the expenditure of public funds in
creating the document." Id. at 421.
In Denver Publishing Co. v. Board of County Commissioners of Arapahoe, 121 P.3d 190 (Colo. 2005), the Colorado Supreme Court analyzed a trial court order that required disclosure of all email communications between a county recorder and assistant chief deputy. The Court explained that "[t]he simple possession, creation, or receipt of an e-mail record by a public official or employee is not dispositive as to whether the record is a public record.‟ The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer equipment is insufficient to make the message a public ...